Planning and Development Act 2005

 

Planning and Development Act 2005

CONTENTS

Part 1 — Preliminary

1.Short title2

2.Commencement2

Notes

Compilation table3

Provisions that have not come into operation3

 

Planning and Development Act 2005

An Act to provide for a system of land use planning and development in the State and for related purposes.

Part 1  Preliminary

1.Short title

This Act may be cited as the Planning and Development Act 2005.

2.Commencement

(1)This Act comes into operation on a day fixed by proclamation.

(2)Different days may be fixed under subsection (1) for different provisions.

[3-6.Have not come into operation 2.]

[Part 2-16 have not come into operation 2.]

[Schedule 1-9 have not come into operation 2.]

Notes

1This is a compilation of the Planning and Development Act 2005. The following table contains information about that Act 1a, 3.

Compilation table

Short title

Number and year

Assent

Commencement

Planning and Development Act 2005 s. 1 and 2

37 of 2005

12 Dec 2005

12 Dec 2005

1aOn the date as at which this compilation was prepared, provisions referred to in the following table had not come into operation and were therefore not included in this compilation. For the text of the provisions see the endnotes referred to in the table.

Provisions that have not come into operation

Short title

Number and Year

Assent

Commencement

Planning and Development Act 2005 s. 3-6, Pt. 2-16 and Sch. 1-9 2

37 of 2005

12 Dec 2005

To be proclaimed (see s. 2)

Planning and Development (Consequential and Transitional Provisions) Act 2005 s. 3, Pt. 3 and 4 3

38 of 2005

12 Dec 2005

To be proclaimed (see s. 2)

2On the date as at which this compilation was prepared, the Planning and Development Act 2005 s. 3-6, Pt. 2-16 and Sch. 1-9 had not come into operation. They read as follows:

3.Purposes of this Act

(1)The purposes of this Act are to —

(a)consolidate the provisions of the Acts repealed by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 and the Western Australian Planning Commission Act 1985) in a rewritten form;

(b)provide for an efficient and effective land use planning system in the State; and

(c)promote the sustainable use and development of land in the State.

(2)If —

(a)the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 or the Western Australian Planning Commission Act 1985 expressed an idea in a particular form of words; and

(b)this Act appears to have expressed the same idea in a different form of words in order to use a clearer or simpler style,

the ideas are not to be taken to be different just because different forms of words were used.

4.Terms used in this Act

(1)In this Act, unless the contrary intention appears —

Accountmeans the account referred to in section 203(2);

artificial waterway means an artificial channel, lake, harbour or embayment, for navigational, ornamental and recreational purposes, or for any of those purposes, and includes any addition to, or alteration of, an artificial waterway as so defined;

associate member means an associate member of the board appointed under section 11;

board means the board referred to in section 9;

chairperson means the chairperson of the board;

chief executive officer means the chief executive officer of the department principally assisting in the administration of this Act;

Commission means the Western Australian Planning Commission established by section 7;

Crown land has the meaning given to that term in the Land Administration Act 1997;

deputy member means a person appointed under Schedule 1 clause 7;

development means the development or use of any land, including —

(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;

(b)the carrying out on the land of any excavation or other works;

(c)in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that —

(i)is likely to change the character of that place or the external appearance of any building; or

(ii)would constitute an irreversible alteration of the fabric of any building;

development application means an application under a planning scheme, or under an interim development order, for approval of development;

district means an area that has been declared to be a district under the Local Government Act 1995;

district planning committee means a committee established under Schedule 2 clause 9;

environmental condition means a condition agreed under section 48F, or decided under section 48J, of the EP Act;

EPA means the Environmental Protection Authority continued in existence under the EP Act;

EP Act means the Environmental Protection Act 1986;

Fund means the Metropolitan Region Improvement Fund established under section 198;

Heritage Council means the Heritage Council of Western Australia established under the Heritage of Western Australia Act 1990;

improvement plan means an improvement plan referred to in section 119;

interim development order means a regional interim development order or a local interim development order;

LAA Department means the department principally assisting in the administration of the Land Administration Act 1997;

land includes —

(a)land, tenements and hereditaments;

(b)any interest in land, tenements and hereditaments; and

(c)houses, buildings, and other works and structures;

legal practitioner has the meaning given to that term in the Legal Practice Act 2003;

local interim development order means an interim development order made under section 102;

local order area means an area affected by, and specified in, a local interim development order;

local planning scheme means a planning scheme of effect or continued under Part 5;

lot means a defined portion of land —

(a)depicted on a plan or diagram —

(i)available from the TLA Department; or

(ii)deposited in the TLA Department or the Registry of Deeds,

and for which a separate Crown Grant or certificate of title has been or can be issued;

(b)depicted on a diagram or plan of survey of a subdivision approved by the Commission; or

(c)which is the whole of the land the subject of —

(i)a Crown Grant issued under the Land Act 1933;

(ii)a certificate of title registered under the Transfer of Land Act 1893;

(iii)a survey into a location or lot under section 27(2) of the Land Administration Act 1997 or a certificate of Crown land title the subject of such a survey;

(iv)a part‑lot shown on a diagram or plan of survey of a subdivision deposited in the TLA Department or the Registry of Deeds; or

(v)a conveyance registered under the Registration of Deeds Act 1856,

but does not include a lot in relation to a strata scheme, a lot in relation to a survey‑strata scheme, or a lot shown as common property on a survey‑strata plan, as those terms are defined in the Strata Titles Act 1985;

member means a member of the board;

metropolitan region means the region described in Schedule 3;

Metropolitan Region Scheme means the planning scheme continued under section 33(1), or any region planning scheme made in substitution for that scheme;

Minister for the Environment means the Minister to whom the Governor has for the time being committed the administration of the EP Act;

officer of the Commission means either of the following —

(a)the Secretary to the Commission appointed under section 21(1);

(b)a public service officer referred to in section 22;

planning control area means a planning control area declared and in force under section 112;

planning scheme means a local or region planning scheme that has effect under this Act and includes —

(a)the provisions of the scheme; and

(b)all maps, plans, specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme;

public authority means any of the following —

(a)a Minister of the Crown in right of the State;

(b)a department of the Public Service, State trading concern, State instrumentality or State public utility;

(c)any other person or body, whether corporate or not, who or which, under the authority of a written law, administers or carries on for the benefit of the State, a social service or public utility;

public work includes any public work as defined in the Public Works Act 1902;

region means the metropolitan region or a region referred to in Schedule 4;

region planning scheme means either of the following —

(a)the Metropolitan Region Scheme;

(b)a planning scheme continued under section 33(2) or of effect under Part 4;

regional interim development order means an interim development order made under section 98;

Regional Minister means the Minister to whom the Governor has for the time being committed the administration of the Regional Development Commissions Act 1993;

regional order area means an area affected by, and specified in, a regional interim development order;

responsible authority means —

(a)in relation to a local planning scheme or local interim development order, the local government responsible for the enforcement of the observance of the scheme or order, or the execution of any works which under the scheme or order, or this Act, are to be executed by a local government; and

(b)in relation to a region planning scheme, regional interim development order or planning control area, the Commission or a local government exercising the powers of the Commission;

road means a public thoroughfare for vehicles (as defined in the Road Traffic Act 1974) or pedestrians, and includes structures or other things appurtenant to the road that are within its limits, and a thoroughfare is not prevented from being a road only because it is not open at each end;

State planning policy means a planning policy approved under section 29;

subdivision includes amalgamation;

Swan Valley has the meaning given to that term in the Swan Valley Planning Act 1995;

Swan Valley Planning Committee has the meaning given to that term in the Swan Valley Planning Act 1995;

TLA Department means the department principally assisting in the administration of the Transfer of Land Act 1893;

utility services means drainage, electricity, sewerage or water supply services or such other services as are prescribed;

WALGA means the body constituted under section 9.58 of the Local Government Act 1995 and known as the Western Australian Local Government Association.

(2)In this Act, unless the contrary intention appears, a reference to —

(a)“the preparation of a local planning scheme” or “the amendment of a local planning scheme” includes a reference to the adoption of a local planning scheme or amendment;

(b)“a local planning scheme prepared by a local government” or “an amendment prepared by a local government” includes a reference to a planning scheme or amendment adopted by it,

and other parts of speech and grammatical forms of those phrases have corresponding meanings.

(3)A provision of this Act relating to a region scheme is to be construed in conjunction with the provisions of this Act relating to local planning schemes as if those provisions related to region schemes but, if the provision relating to a region scheme is in conflict with, or inconsistent with a provision relating to a local planning scheme, for the purpose of construing the provision relating to a region scheme the provision relating to the region scheme prevails to the extent that it is in conflict or inconsistent.

5.Crown bound

(1)Except as provided in section 6 this Act binds the Crown.

(2)A region planning scheme binds the Crown.

6.Act does not interfere with public works

(1)Subject to section 5(2) and subsections (2) and (3) of this section, nothing in this Act interferes with the right of the Crown, or the Governor, or the Government of the State, or a local government —

(a)to undertake, construct or provide any public work; and

(b)to take land for the purposes of that public work.

(2)Rights referred to in subsection (1) are to be exercised having regard to —

(a)the purpose and intent of any planning scheme that has effect in the locality where, and at the time when, the right is exercised; and

(b)the orderly and proper planning, and the preservation of the amenity, of that locality at that time.

(3)The responsible authority is to be consulted at the time when a proposal for any public work, or for the taking of land for a public work, is being formulated to ensure that the undertaking, construction, or provision of, or the taking of land for, the public work will comply with subsection (2).

Part 2 — The Western Australian Planning Commission

Division 1 — Establishment and management

7.Commission established

(1)A body called the Western Australian Planning Commission is established.

(2)The Commission is a body corporate with perpetual succession.

(3)Proceedings may be taken by or against the Commission in its corporate name.

8.Status

The Commission is an agent of the State and has the status, immunities and privileges of the State.

9.Management

(1)The Commission is to have a board of management.

(2)The board is the governing body of the Commission.

(3)The board, in the name of the Commission, is to perform the functions of the Commission under this Act or any other written law.

10.Membership of board

(1)The board is to consist of the following members —

(a)a chairperson appointed by the Governor on the nomination of the Minister;

(b)6 members appointed by the Governor, of whom —

(i)one is to be a person nominated by the Minister from a list of the names of 4 persons representing the interests of local governments within the metropolitan region submitted to the Minister by WALGA;

(ii)one is to be a person nominated by the Minister from a list of the names of 4 persons representing the interests of the local governments outside the metropolitan region submitted to the Minister by WALGA;

(iii)one is to be a person nominated by the Minister as having experience of the field of coastal planning and management;

(iv)one is to be a person nominated by the Minister as having practical knowledge of and experience in one or more of the fields of urban and regional planning, property development, commerce and industry, business management, financial management, engineering, surveying, valuation, transport or urban design;

(v)one is to be a person nominated by the Minister as having practical knowledge of and experience in one or more of the fields of environmental conservation, natural resource management or heritage interests; and

(vi)one is to be a person nominated by the Minister as having practical knowledge of and experience in one or more of the fields of planning and provision of community services, community affairs or indigenous interests;

and

(c)the least number of other members who include —

(i)the chief executive officer of the department principally assisting in the administration of this Act;

(ii)the chief executive officer of the Water and Rivers Commission established by the Water and Rivers Commission Act 1995;

(iii)the chief executive officer of the department principally assisting in the administration of the Transport Co‑ordination Act 1966;

(iv)the chief executive officer of the department principally assisting in the administration of the Environmental Protection Act 1986;

(v)the chief executive officer of the department principally assisting in the administration of the Government Agreements Act 1979;

(vi)the chief executive officer of the department principally assisting in the administration of the Housing Act 1980;

(vii)a person, whether a member under another subparagraph or another person nominated by the Minister, who has experience in the field of urban and regional planning and is employed in an agency, as defined in the Public Sector Management Act 1994, for which the Minister is responsible; and

(viii)a person nominated by the Regional Minister.

(2)When the submission of a list of names is required for the purposes of subsection (1)(b)(i) or (ii), that submission is to be made to the Minister in writing signed on behalf of WALGA within such reasonable time after the receipt by WALGA of a notice from the Minister stating that the submission is required as is specified in the notice.

(3)If a submission is not made under subsection (2) within the time specified under that subsection, the Minister may nominate a person the Minister thinks fit to be a member in place of the person referred to in subsection (1)(b)(i) or (ii).

11.Associate members

(1)In this section —

regional matter means a matter that, in the opinion of the chairperson, affects more than one local government in a region referred to in Schedule 4.

(2)The Governor may, on the nomination of the Minister, appoint an associate member for a region referred to in Schedule 4.

(3)Each nomination by the Minister for appointment as an associate member under subsection (2) is to be made on the recommendation of the Regional Minister.

(4)Where it appears to the chairperson that a regional matter is to be considered at a meeting of the board the chairperson may, by written notice specifying the time and place of the meeting, request the associate member for that region to attend that meeting for the consideration of that matter.

12.Constitution and proceedings

Schedule 1 has effect.

13.Remuneration and allowances

A member, a deputy member, an associate member or a member of a committee established under Schedule 2 is to be paid such remuneration and allowances as are determined by the Minister on the recommendation of the Minister for Public Sector Management.

Division 2 — Functions and powers

14.Functions of the Commission

The functions of the Commission are —

(a)to advise the Minister on —

(i)the coordination and promotion of land use, transport planning and land development in the State in a sustainable manner;

(ii)the administration, revision and reform of legislation relating to land use, transport planning and land development;

(iii)local planning schemes, and amendments to those schemes, made or proposed to be made for any part of the State;

(b)to prepare and keep under review —

(i)a planning strategy for the State; and

(ii)planning policies,

as a basis for coordinating and promoting land use planning, transport planning and land development in a sustainable manner, and for the guidance of public authorities and local governments on those matters;

(c)to plan for the coordinated provision of transport and infrastructure for land development;

(d)to provide advice and assistance to any body or person on land use planning and land development and in particular to local governments in relation to local planning schemes and their planning and development functions;

(e)to undertake research and develop planning methods and models relating to land use planning, land development and associated matters;

(f)to keep under review the strategic planning for the metropolitan region and any other part of the State to which a region planning scheme applies and to make recommendations to the Minister on that strategic planning;

(g)to prepare and amend State planning policies under Part 3;

(h)to prepare region planning schemes under Part 4;

(i)to keep under review each region planning scheme, to review the scheme completely whenever requested by the Minister to do so and to submit for approval under Part 4 any amendment of a region planning scheme considered necessary as a result of a review;

(j)to develop, maintain and manage land held by it that is reserved under a region planning scheme and to carry out such works, including the provision of facilities on the land, as may be incidental to development, maintenance or management or to be conducive to the use of the land for any purpose for which it is reserved;

(k)to establish, and exercise powers in relation to, committees under Schedule 2;

(l)to do all things that are necessary for the purpose of carrying out this Act and region planning schemes; and

(m)to do anything else that it is required or authorised to do by this or any other written law.

15.Powers

(1)The Commission may do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2)Without limiting subsection (1), the Commission may, for the purpose of performing a function —

(a)subject to this Act, acquire, hold and dispose of real and personal property;

(b)enter into an agreement with any person under which that person may acquire a lease of, a licence in respect of, or any other estate or interest in, any land mentioned in section 14(j);

(c)develop and turn to account any technology, software or other intellectual property that relates to the function, and, for that purpose, apply for, hold, exploit and dispose of any patent, patent rights, copyright or similar rights;

(d)enter into a contract or arrangement with a person or body (including a local government or a department of the Public Service, or other agency or instrumentality, in the State or elsewhere) —

(i)for the supply of equipment by that person or body;

(ii)to provide consultancy or advisory services to that person or body; or

(iii)for the commercial exploitation of the knowledge, expertise and resources of the Commission and the rights referred to in paragraph (c);

(e)subject to subsection (3), enter into a contract or arrangement with a person or body (including a local government or a department of the Public Service, or other agency or instrumentality, in the State or elsewhere) for the performance by that person or body of any work or the supply of services;

(f)on terms and conditions approved by the Minister and the Treasurer, participate in any business arrangement and acquire, hold and dispose of shares, units or other interests in, or relating to, a business arrangement; and

(g)act in conjunction with a person, a firm, a local government or a department of the Public Service, or other agency or instrumentality, of the State, another State or Territory or the Commonwealth.

(3)The Commission is not to enter into a contract or arrangement referred to in subsection (2)(e) unless —

(a)the Minister has approved; and

(b)the contract or arrangement is entered into in such circumstances and for such periods as the Minister may from time to time specify by written notice given to the Commission.

(4)For the purposes of subsection (2)(f) the Minister and the Treasurer may approve terms and conditions in respect of a specific business arrangement or class of business arrangement or in respect of business arrangements generally.

(5)In this section —

business arrangement means a company, a partnership, a trust, a joint venture, an arrangement for sharing profits or an arrangement for sponsorship;

participate includes form, promote, establish, enter into, manage, dissolve, wind up, and do anything incidental to the participating in a business arrangement.

16.Delegation by Commission

(1)The Commission may, by resolution, delegate to a person or body referred to in subsection (3) any function of the Commission under this Act or any other written law, except this power of delegation.

(2)A resolution referred to in subsection (1) takes effect when notice of the resolution is published in the Gazette.

(3)A delegation under subsection (1) may be made to —

(a)a member or associate member;

(b)a committee established under Schedule 2, or a member of such a committee;

(c)an officer of the Commission;

(d)a public authority or a member or officer of a public authority; or

(e)a local government, a committee established under the Local Government Act 1995 or an employee of a local government.

(4)The reference to functions in subsection (1) extends, without limitation or restriction, to all of the powers, privileges, authorities, discretions, duties and responsibilities vested in or imposed on the Commission by this Act or any other written law.

(5)Without limiting the generality of subsection (1), where the Commission has delegated its functions under section 14(i) and (l), the delegation includes, subject to the instrument of delegation, a delegation of every function of the Commission under Part 4.

(6)A delegate cannot subdelegate the exercise or performance of any function.

(7)A delegate exercising or performing a function as authorised under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(8)Nothing in this section limits the ability of the Commission to act through an officer or agent.

(9)This section does not apply to the execution of documents but authority to execute documents on behalf of the Commission can be given under section 24.

17.Directions by Minister

(1)The Minister may give written directions to the Commission with respect to the exercise or performance of its functions, either generally or in relation to a particular matter, and the Commission is to give effect to any such direction.

(2)The Minister is to cause the text of any direction given under subsection (1) to be laid before each House of Parliament, or dealt with under subsection (3), within 14 days after the direction is given.

(3)If —

(a)at the commencement of the period referred to in subsection (2) a House of Parliament is not sitting; and

(b)the Minister is of the opinion that that House will not sit during that period,

the Minister is to transmit a copy of the direction to the Clerk of that House.

(4)A copy of a direction transmitted to the Clerk of a House is to be taken to have been laid before that House.

(5)The laying of a copy of a direction that is regarded as having occurred under subsection (4) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

(6)The text of any direction given under subsection (1) is to be included in the annual report submitted by the accountable authority of the Commission under section 66 of the Financial Administration and Audit Act 1985.

(7)Nothing in this section applies to a direction of the Minister given under section 26(1), 28(4)(b), 31(1), 31(2), 43(5)(b), 51(1), 51(2), 52(2), 63(1) or 67(1).

18.Minister to have access to information

(1)The Minister is entitled —

(a)to have information in the possession of the Commission; and

(b)if the information is in or on a document, to have, and make and retain copies of, that document.

(2)For the purposes of subsection (1) the Minister may —

(a)request the Commission to give information to the Minister;

(b)request the Commission to give the Minister access to information; and

(c)for the purposes of paragraph (b) make use of the staff of the Commission to obtain the information and give it to the Minister.

(3)The Commission has to comply with a request under subsection (2) and make its staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection.

(4)In this section —

document includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;

information means information specified, or of a description specified, by the Minister that relates to the functions of the Commission.

19.Committees

Schedule 2 has effect with respect to committees established by the Commission under that Schedule.

20.Fees

(1)The Minister may by notice published in the Gazette set fees to be charged in respect of anything done under this Act and services provided by the Commission in connection with its functions.

(2)Fees set under subsection (1) are payable by the person at whose request or on whose application the act is done.

Division 3 — Administration

21.Secretary

(1)The Commission may appoint a person to the office of Secretary to the Commission.

(2)The office of Secretary to the Commission may be held under a contract entered into with the Commission or under Part 3 of the Public Sector Management Act 1994.

22.Staff of Commission

Public service officers are to be appointed or made available under Part 3 of the Public Sector Management Act 1994 to enable the Commission and its committees to perform their respective functions.

23.Use of staff and facilities of public authorities

(1)The Commission may, by arrangement made between it and the relevant employer, make use, either full‑time or part‑time, of the services of any officer or employee employed —

(a)in the Public Service;

(b)in a State agency; or

(c)otherwise in the service of the State.

(2)The Commission may by arrangement with —

(a)a department of the Public Service; or

(b)a State agency,

make use of any facilities of the department or agency.

(3)An arrangement under subsection (1) or (2) is to be made on terms agreed to by the parties.

Division 4 — Miscellaneous

24.Execution of documents

(1)The Commission is to have a common seal.

(2)A document is duly executed by the Commission if —

(a)the common seal of the Commission is affixed to it in accordance with subsections (3) and (4); or

(b)it is signed on behalf of the Commission by a person or persons authorised to do so under subsection (5).

(3)The common seal of the Commission is not to be affixed to any document except as authorised by the Commission.

(4)The common seal of the Commission is to be affixed to a document in the presence of the chairperson and another member, or the chairperson and an officer of the Commission authorised by the Commission either generally or in any particular case to be so present, and each of them is to sign the document to attest that the common seal was so affixed.

(5)The Commission may, by writing under its common seal, authorise a member or members or an officer or officers of the Commission to sign documents on behalf of the Commission, either generally or subject to such conditions or restrictions as are specified in the authorisation.

(6)A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown.

(7)A document executed by a person under this section without the common seal of the Commission is not to be regarded as a deed unless the person executes it as a deed and is authorised under subsection (5) to do so.

(8)When a document is produced bearing a seal purporting to be the common seal of the Commission, it is to be presumed that the seal is the common seal of the Commission until the contrary is shown.

Part 3 — State planning polic ies

25.Continuation of statements of planning policy

Any statement of planning policy in force under the Town Planning and Development Act 1928 immediately before this section comes into operation —

(a)continues in force as a State planning policy under this Act; and

(b)has effect accordingly.

26.Preparation of State planning policy

(1)The Commission may, with the approval or on the direction of the Minister, prepare State planning policies.

(2)A State planning policy is to be directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments.

(3)Despite subsection (2), a State planning policy may make provision for any matter which may be the subject of a local planning scheme.

(4)A State planning policy may be prepared so as to apply —

(a)generally or in a particular class of matter or in particular classes of matter; and

(b)throughout the State or in a specified portion or specified portions of the State, whether or not a local planning scheme has been prepared or is being prepared in that portion or those portions of the State.

27.Matters to which Commission is to have regard

In the preparation of a State planning policy the Commission is to have regard to —

(a)demographic, social and economic factors and influences;

(b)conservation of natural or cultural resources for social, economic, environmental, ecological and scientific purposes;

(c)characteristics of land;

(d)characteristics and disposition of land use;

(e)amenity, design and environment;

(f)communications; and

(g)developmental requirements of public authorities,

in respect of the State or the portion of the State, or portions of the State, to which the State planning policy is to apply, as the case requires.

28.Consultation

(1)When preparing a State planning policy, the Commission —

(a)if the State planning policy is likely to affect a district or districts in particular, is to consult the local government for that district or the local governments for those districts; and

(b)in any other case is to consult WALGA,

with respect to the proposed State planning policy.

(2)The Commission is to deposit copies of the proposed State planning policy for public inspection during ordinary business hours free of charge —

(a)at the office of the Commission; and

(b)at not less than 3 other public places which the Commission considers to be convenient for public inspection.

(3)As soon as practicable after the deposit of the copies of the proposed State planning policy under subsection (2) the Commission is to cause to be inserted in a daily newspaper and a Sunday newspaper a notice stating —

(a)in short, the purpose of the proposed State planning policy;

(b)that the proposed policy has been deposited and the places and times at which it may be inspected free of charge; and

(c)the period (being a period of not less than 60 days after the day on which the notice is published) within which, and the form in which, submissions may be made to the Commission on any provision of the proposal.

(4)Without limiting subsections (1), (2) and (3), the Commission —

(a)is to make reasonable endeavours to consult in respect of the proposed State planning policy such public authorities and persons as appear to the Commission to be likely to be affected by the policy; and

(b)is to take such steps to make public the details of the proposed State planning policy as the Minister may direct,

and may take such other steps as it considers necessary to make public the details of the proposed policy.

(5)The Commission is to consider any submissions with respect to the proposed State planning policy and may modify the proposed policy as it thinks fit.

29.Approval of Governor

(1)The Governor may approve a State planning policy prepared by the Commission with or without such modifications as the Minister may recommend and the Governor thinks necessary to make and which the Governor is by this subsection authorised to make.

(2)A State planning policy has no force or effect until it is approved by the Governor and published in the Gazette.

30.Publication of State planning policy

The Commission is to cause a copy of any State planning policy approved by the Governor —

(a)to be published in the Gazette; and

(b)to be forwarded to each local government, any portion of the district of which is included in the area covered by the policy.

31.Amendment or repeal of State planning policy

(1)A State planning policy may be amended by amendments prepared by the Commission with the approval of the Minister, or on a direction of the Minister.

(2)A State planning policy may be repealed by —

(a)a subsequent State planning policy; or

(b)an instrument of repeal —

(i)made by the Commission with the approval of the Minister, or on a direction of the Minister; and

(ii)approved by the Minister and published in the Gazette.

(3)Sections 26, 27, 28, 29 and 30 apply, with such modifications as are necessary, to and in relation to an amendment as if the amendment were a State planning policy.

32.Environmental review

The Commission may, in relation to a particular State planning policy or an amendment to such a policy, act under sections 81, 82, 84, 85 and 86 as if —

(a)the Commission were a local government; and

(b)that policy or amendment were a local planning scheme,

but otherwise this Part applies to that policy or amendment.

Part 4 — Region planning schemes

Division 1 — Continuation and formulation of region planning schemes

33.Planning schemes continued

(1)The Metropolitan Region Scheme in force under the Metropolitan Region Town Planning Scheme Act 1959 immediately before this section comes into operation —

(a)continues in force as a region planning scheme under this Act; and

(b)has effect as if it were enacted by this Act.

(2)Any regional planning scheme in force under the Western Australian Planning Commission Act 1985 immediately before this section comes into operation —

(a)continues in force as a region planning scheme under this Act; and

(b)has effect as if it were enacted by this Act.

34.Region planning schemes

(1)If, in the opinion of the Commission or the Minister, matters of State or regional importance so require, the Commission is to prepare such region planning schemes, and amendments to region planning schemes, as may be necessary for the purposes of this Act.

(2)A region planning scheme may be prepared for all or any of the objects, purposes, provisions, powers or works referred to in section 69(1) and may provide for planning, replanning or reconstructing the whole or any part of a region.

35.Preparation of region planning scheme or amendment

(1)Subject to section 36, the Commission may resolve to prepare a region planning scheme or an amendment to a region planning scheme.

(2)Immediately after resolving to prepare a region planning scheme, the Commission is to ensure compliance with the relevant procedures set out in Divisions 2 and 3.

(3)Immediately after resolving to prepare an amendment to a region planning scheme, the Commission is to ensure compliance in respect of that amendment with the relevant procedures set out in Divisions 2, 3 and 4.

36.Restrictions on making or amendment of region planning scheme for metropolitan region

The Metropolitan Region Scheme and any other region scheme applicable to the metropolitan region are not to be made or amended under this Act —

(a)in a manner that is contrary to or inconsistent with —

(i)a provision of Part 5 of the Swan River Trust Act 1988; or

(ii)an amendment made to the Metropolitan Region Scheme by section 14, 15, 16 or 17 of the Acts Amendment (Swan River Trust) Act 1988;

(b)in a manner that is contrary to or inconsistent with any Order made under section 59 of the Heritage of Western Australia Act 1990, except in so far as may be ordered on an application or referral made under section 60 of that Act to the State Administrative Tribunal;

(c)without limiting section 38 of the East Perth Redevelopment Act 1991, section 45 of the Subiaco Redevelopment Act 1994, section 45 of the Midland Redevelopment Act 1999 or section 43 of the Armadale Redevelopment Act 2001, to make any provision in respect of land in the redevelopment area under any of those Acts so long as there is in operation in respect of that land a redevelopment scheme under Part 4 of any of those Acts; or

(d)without limiting section 23 of the Hope Valley‑Wattleup Redevelopment Act 2000, to make any provision in respect of land in the redevelopment area as defined in that Act.

37.Region planning scheme may be amended or repealed

(1)A region planning scheme may be amended under this Act.

(2)A region planning scheme may be repealed by —

(a)a subsequent region planning scheme; or

(b)an instrument of repeal prepared by the Commission, approved by the Minister and published in the Gazette.

Division 2 — Prerequisites to region planning scheme or amendment

38.All proposed region planning schemes and amendments to be referred to EPA

(1)When the Commission resolves to prepare a region planning scheme or an amendment to a region planning scheme, the Commission is to forthwith refer that scheme or amendment to the EPA by giving to the EPA —

(a)written notice of the resolution; and

(b)such written information about that scheme or amendment as is sufficient to enable the EPA to comply with section 48A of the EP Act in relation to the scheme or amendment.

(2)This section applies in respect of an amendment whether or not the amendment constitutes a substantial alteration to a region planning scheme.

39.Environmental review and consent to public submissions

(1)In this section —

instructions means instructions issued under section 48C(1)(a) of the EP Act.

(2)When the EPA has acted under section 48C(1)(a) of the EP Act in relation to a proposed region planning scheme or amendment to a region planning scheme, the Commission, if it wishes to proceed with that scheme or amendment, is to undertake an environmental review of that scheme or amendment in accordance with the relevant instructions.

(3)The Commission is not to submit a scheme or an amendment referred to in subsection (2) to the Minister under section 42 for consent to public submissions being sought, or act in relation to that scheme under section 58, as the case requires, until —

(a)the Commission has forwarded the environmental review to the EPA; and

(b)the EPA has advised that that review has been undertaken in accordance with the relevant instructions, or 30 days have elapsed since the review was forwarded without the EPA having advised whether or not that review has been undertaken in accordance with those instructions, whichever first occurs.

(4)If the EPA has advised that the review has not been undertaken in accordance with the relevant instructions, the Commission may —

(a)comply with subsection (2) in respect of the scheme or amendment concerned; or

(b)request the Minister to consult the Minister for the Environment and, if possible, agree with the Minister for the Environment on whether or not the review has been undertaken in accordance with those instructions.

(5)If the Minister, having complied with a request under subsection (4), and the Minister for the Environment —

(a)agree on whether or not the review has been undertaken in accordance with the relevant instructions, their decision is final and without appeal or review; or

(b)cannot so agree, section 48J of the EP Act applies.

40.Referrals to Swan Valley Planning Committee before public submissions

(1)The Commission, before submitting to the Minister under section 42 a scheme or amendment that would apply to land in the Swan Valley, is to refer the scheme or amendment to the Swan Valley Planning Committee.

(2)The Committee, within 42 days after the day on which it receives the referral, or within such longer period as the Commission allows, is to give to the Commission its written advice on the scheme or amendment including any modifications it thinks should be made.

(3)If the Committee fails to give its advice within the time allowed under subsection (2), it is to be taken to have no advice to give on the scheme or amendment.

(4)The Minister may, at the request of the Commission, approve of the Commission disregarding the Committee’s advice in whole or in part in preparing the scheme or amendment.

(5)Subject to any approval under subsection (4), the Commission is to prepare the scheme or amendment in accordance with any advice given by the Committee under this section.

Division 3 — Making of region planning scheme and amendments

41.Procedure

Subject to Division 4, the Commission is to adopt the procedure set out in this Division for submitting and obtaining approval of any region planning scheme or amendment to a region planning scheme (in this Division referred as the scheme or amendment) formulated by the Commission.

42.Consent to public submissions

Subject to Division 4, the scheme or amendment when prepared by the Commission and after sections 38 and 39 have been complied with, is to be submitted, together with such reports, surveys and other material as the Commission considers desirable, to the Minister for the Minister’s consent to public submissions being sought.

43.Deposit and notification of scheme or amendment

(1)If the Minister consents to public submissions being sought in respect of the scheme or amendment the Commission is to deposit copies of —

(a)the scheme or amendment; and

(b)a statement setting out the purpose and planning objectives of the scheme or amendment,

for public inspection during ordinary business hours free of charge at the places listed in subsection (2).

(2)For the purposes of subsection (1) the scheme or amendment and statement are to be deposited —

(a)in the case of a region planning scheme, or an amendment to a region planning scheme other than the Metropolitan Region Scheme —

(i)at the offices of the local governments of the districts which lie within or partly within the area to which the region planning scheme applies; and

(ii)at not less than 3 other public places which the Commission considers to be most convenient for public inspection;

and

(b)in the case of an amendment to the Metropolitan Region Scheme —

(i)at the offices of the Commission;

(ii)at the offices of the City of Perth and the City of Fremantle; and

(iii)at not less than 3 other public places in the metropolitan region which the Commission considers to be most convenient for public inspection.

(3)As soon as practicable after the deposit of the copies under subsection (1) the Commission is to cause to be inserted at least 3 times in each of the following publications —

(a)the Gazette;

(b)a daily newspaper circulating in the area to which the region planning scheme applies;

(c)a Sunday newspaper circulating in the area to which the region planning scheme applies,

a notice stating —

(d)in short, the purpose and planning objectives of the scheme or amendment;

(e)that the scheme or amendment has been deposited and the places and times at which it may be inspected free of charge; and

(f)that submissions on any provision of the scheme or amendment may be made to the Commission in the form specified in the notice within the period specified in the notice (being a period not less than 3 months from the date the notice is first published in the Gazette).

(4)If the scheme or amendment changes the zoning or reservation of land, the Commission, within 7 days of the publication of the notice in the Gazette, is to make reasonable endeavours to give written notice of the scheme or amendment to the owners of land of which the zoning or reservation is changed.

(5)The Commission is to —

(a)make reasonable endeavours to consult in respect of the scheme or amendment such public authorities and persons as appear to the Commission to be likely to be affected by the scheme or amendment; and

(b)take such steps to make public the details of the scheme or amendment as the Minister may direct,

and may take such other steps as it considers necessary to make public the details of the scheme or amendment.

44.Submissions to Commission

(1)Submissions on the scheme or amendment may be made at any time within the period prescribed in the notice under section 43(3)(f).

(2)The Commission is to consider all submissions that are duly lodged.

45.Role of Commission in relation to environmental submissions on scheme or amendment

(1)In this section —

proposed amendment means proposed amendment to a region planning scheme under this Division.

(2)When the Commission has been informed under section 48A(1)(b)(i) of the EP Act that the proposed scheme or proposed amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the Commission is to —

(a)as soon as practicable, but in any event within 7 days after the expiry of the period referred to in section 44(1), transmit to the EPA a copy of each submission made to the Commission under section 44(1) and relating wholly or in part to environmental issues raised by the proposed scheme or proposed amendment; and

(b)within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in section 44(1), inform the EPA of its views on and response to the environmental issues raised by the submissions referred to in paragraph (a) and received within that period.

46.Person making submission may be heard

(1)The Commission is to give each person making a submission or the person’s agent the opportunity of being heard on the submission by the Commission or by a committee established under Schedule 2.

(2)Where a submission is made by a group of persons, the group is to appoint one person to represent the group and only that person may be heard under subsection (1).

47.Referrals to Swan Valley Planning Committee after public submissions

(1)Where as required by section 40(5), a scheme or amendment has been prepared in accordance with advice given by the Swan Valley Planning Committee and after considering public submissions on the scheme or amendment the Commission has modified the scheme or amendment in a way which is not in accordance with that advice, the Commission is to, before submitting that scheme or amendment to the Minister under section 48, refer the scheme or amendment, with the other documents referred to in that section, back to the Committee for its comments and advice.

(2)Where the Swan Valley Planning Committee has any comment to make, or advice to give, on a scheme or amendment or the other documents referred to it under subsection (1) it is to give a written report to the Commission and that report is to be submitted to the Minister along with the other documents referred to in section 48.

(3)If the Swan Valley Planning Committee does not report to the Commission within 42 days of the referral under subsection (2) it is to be taken to have no comment to make or advice to give.

48.Submissions to Minister

(1)Subject to section 47, after —

(a)sections 38 and 39 have been complied with in relation to the scheme or amendment; and

(b)considering all submissions that have been duly lodged,

the Commission is to submit to the Minister —

(c)the scheme or amendment to which those submissions relate, with the modifications, if any, it thinks fit to make;

(d)a copy of each of those submissions; and

(e)a report by the Commission on those submissions.

(2)For the purposes of subsection (1) the Commission may adopt a report by a committee referred to in section 46(1) and submit it as, or include it in, the report of the Commission.

49.Minister may withdraw scheme or amendment

If —

(a)the report of the Commission; or

(b)in the case of a scheme or amendment that would apply to land in the Swan Valley, a report of the Swan Valley Planning Committee under section 47,

submitted with a scheme or amendment under section 48, recommends that the scheme or amendment should not proceed, the Minister may, instead of presenting the scheme or amendment to the Governor for consideration, withdraw the scheme or amendment.

50.Prerequisite for final approval of Minister

The Minister is not to present to the Governor a proposed scheme or amendment referred to the EPA under section 38 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until —

(a)the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that scheme or amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act;

(b)the Minister has received a statement under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that scheme or amendment is subject; or

(c)the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the Commission under that section,

whichever first occurs, and the Minister is satisfied that the conditions, if any, to which that scheme or amendment is subject have been incorporated into that scheme or amendment.

51.Directions by Minister

(1)Before presenting the scheme or amendment to the Governor for consideration, if the Minister is of the opinion that any modification made to the scheme or amendment by the Commission is of such a substantial nature as to warrant such action, the Minister may direct the Commission to again deposit the scheme or amendment as so modified, or that portion of the scheme or amendment which is so modified, for public inspection at such time and at such places as the Minister directs.

(2)The Minister may direct the Commission to publish such notices in connection with the scheme or amendment as the Minister thinks appropriate.

(3)The Commission is to comply with the directions.

52.Procedure on modifications

(1)A person who desires to make a submission on modifications made by the Commission may notify the Minister in writing in the form approved by the Commission.

(2)The Minister is to direct the Commission to consider and report on the submission to the Minister in accordance with the procedure set out in sections 46 and 48.

(3)If a report submitted with a scheme or amendment under section 48 as read with subsections (1) and (2) recommends that the scheme or amendment should not be proceeded with, the Minister may, instead of presenting the scheme or amendment to the Governor for consideration, withdraw the scheme or amendment.

53.Approval of Governor

(1)If the Minister has not withdrawn the scheme or amendment under section 49 or 52(3), the Minister is to present the scheme or amendment to the Governor.

(2)The Governor may approve the scheme or amendment with or without such modifications as the Minister may recommend and the Governor thinks necessary to make and the Governor is by this subsection authorised to make such modifications.

54.Publication of scheme or amendment

When the Governor has approved the scheme or amendment, whether with or without modifications —

(a)the scheme or amendment, or the scheme or amendment as so modified, but not including any maps, plans or diagrams, is to be published in the Gazette; and

(b)the maps, plans and diagrams are to be open for public inspection at such times and such places as the Minister determines.

55.Approval of scheme or amendment may be revoked

(1)The Governor may, on the recommendation of the Minister and at any time before the scheme or amendment has effect, revoke his or her approval of the scheme or amendment.

(2)The Governor may, on the recommendation of the Minister and at any time before the scheme or amendment is published in the Gazette, revoke his or her approval of part of the scheme or amendment.

(3)If the approval is revoked under subsection (1) or (2) before the scheme or amendment has been published in the Gazette, section 54 does not apply in respect of the scheme or amendment, or, if the approval is revoked in respect of part of the scheme or amendment, the part of the scheme or amendment in respect of which the approval is revoked, as the case requires.

(4)If the approval is revoked under subsection (1) after notice of the scheme or amendment has been published in the Gazette and before the scheme is laid before both Houses of Parliament —

(a)section 56(1) does not apply in respect of the scheme or amendment; and

(b)notice of the revocation is to be published in the Gazette.

(5)If the approval of the scheme or amendment is revoked under subsection (1) after the scheme or amendment is laid before both Houses of Parliament —

(a)the scheme or amendment is to be withdrawn; and

(b)notice of the revocation is to be published in the Gazette.

56.Scheme or amendment may be disallowed

(1)A copy of the scheme or amendment and a copy of the report of the Commission on the submissions referred to in sections 48 and 52 are to be laid before each House of Parliament within 6 sitting days of that House next following the date of the publication of the scheme or amendment in the Gazette.

(2)Either House of Parliament may, by resolution of which notice has been given within 12 sitting days of that House after the scheme or amendment has been laid before it under subsection (1), pass a resolution disallowing the scheme or amendment.

(3)As soon as the scheme or amendment is no longer subject to disallowance under subsection (2), the scheme or amendment has effect as if it were enacted by this Act.

(4)If either House of Parliament passes a resolution disallowing the scheme or amendment, notice of the disallowance is to be published in the Gazette within 21 days of the passing of the resolution.

(5)It does not matter whether or not the period of —

(a)6 sitting days referred to in subsection (1) or some of them; or

(b)12 sitting days referred to in subsection (2) or some of them,

occur during the same session of Parliament, or the same Parliament, as that in which the relevant scheme or amendment is laid before the House of Parliament concerned.

Division 4 — Minor amendments to region planning scheme

57.Minor amendment

(1)If a proposed amendment does not, in the opinion of the Commission, constitute a substantial alteration to a region planning scheme, that amendment —

(a)is not required to be submitted and approved in accordance with the procedure prescribed in Division 3; and

(b)instead, may be submitted and approved in accordance with the procedure prescribed in this Division.

(2)Despite subsection (1), an amendment cannot be made to the Metropolitan Region Scheme under this Division to change the zoning of any land in the Swan Valley.

58.Notification of minor amendment

(1)If under section 57 a proposed amendment is not required to be submitted and approved in accordance with the procedure prescribed in Division 3, the Commission, after sections 38 and 39 have been complied with in relation to that amendment, is to —

(a)send a copy of the amendment to the Minister;

(b)publish in the Gazette and in a daily newspaper circulating in the area to which the region scheme applies a notice —

(i)describing the amendment;

(ii)stating where and when the amendment will be available for inspection;

(iii)stating that submissions on any provision of the amendment may be made to the Commission in the form set out in that notice within the period specified in the notice (being a period of not less than 60 days after publication of the notice); and

(iv)certifying that, in the opinion of the Commission, the amendment does not constitute a substantial alteration to the relevant region planning scheme;

(c)if the amendment changes the zoning or reservation of land, within 7 days of the publication referred to in paragraph (b), make reasonable endeavours to give written notice of the amendment to the owner of land of which the zoning or reservation is changed; and

(d)make reasonable endeavours to consult in respect of that amendment such public authorities and persons as appear to the Commission to be likely to be affected by that amendment.

(2)When a submission is made by a group of persons, that group is to appoint one person to represent that group for the purposes of the submission.

59.Consideration of submissions on minor amendment

If the Commission receives any submissions in accordance with the relevant notice published under section 58 the Commission is to consider, and make a report and recommendation to the Minister on, those submissions.

60.Role of Commission in relation to environmental submissions on minor amendment

(1)In this section —

proposed amendment means proposed amendment to a region planning scheme under this Division.

(2)When the Commission has been informed under section 48A(1)(b)(i) of the EP Act that the proposed amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the Commission is to —

(a)as soon as practicable, but in any event within 7 days after the expiry of the period referred to in section 58(1)(b)(iii), transmit to the EPA a copy of each submission made to the Minister under section 58(1)(b)(iii) and relating wholly or in part to environmental issues raised by the proposed amendment; and

(b)within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in section 58(1)(b)(iii), inform the EPA of its views on and response to the environmental issues raised by the submissions referred to in paragraph (a) and received within that period.

61.Prerequisite for final approval by Minister of proposed minor amendment

The Minister is not to approve under section 62(1) a proposed amendment to a region planning scheme referred to the EPA under section 60 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until —

(a)the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act;

(b)the Minister has received a statement under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that amendment is subject; or

(c)the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the Commission under that section,

whichever first occurs, and the Minister is satisfied that the conditions, if any, to which that amendment is subject have been incorporated into that amendment.

62.Minister may approve or decline to approve minor amendment

(1)On receiving a report and recommendation made to the Minister under section 59, the Minister may, after complying with section 61 in relation to the amendment concerned —

(a)approve, with such modifications, if any, as the Minister considers it necessary to make; or

(b)decline to approve,

the proposed amendment to which that report and recommendation relate.

(2)When the Minister has approved a proposed amendment under subsection (1) the Commission is to cause —

(a)that amendment or that amendment as modified under subsection (1), as the case requires, excluding any maps, plans or diagrams forming part of that amendment, to be published in the Gazette; and

(b)any maps, plans or diagrams forming part of that amendment to be open for inspection at such times and places as the Commission determines.

(3)The amendment or the amendment as modified under subsection (1), as the case requires, has effect on publication under subsection (2) as if it were enacted by this Act.

Division 5 — Consolidation of region planning scheme

63.Minister may direct consolidation

(1)The Minister may direct the Commission to deliver to the Minister a consolidation of a region planning scheme as in force at the date specified in the direction.

(2)On receipt of a direction under subsection (1) the Commission is to cause to be prepared a consolidation of the region planning scheme incorporating all amendments to the scheme in force on the date specified in the direction.

64.Maps, plans, diagrams may be added or substituted

(1)In the preparation of the consolidation there may be included, in addition to or in substitution for, any maps, plans and diagrams forming part of the region planning scheme, such maps, plans or diagrams, prepared on such scale or scales, as, in the opinion of the Commission, are necessary to state and represent, in an informative and convenient form, the scope, effect and details of the region planning scheme as amended.

(2)Where an addition or substitution under subsection (1) necessitates the making of a consequential amendment to the text of the region planning scheme, that amendment is to be made in the consolidation.

(3)Where an addition, substitution or other amendment is effected under subsection (1) or (2) the region planning scheme is to be taken to be amended accordingly on and from the publication of notice of consolidation under section 66(1) but the provisions of Divisions 3 and 4 and the Metric Conversion Act 1972 do not apply to any such addition, substitution or other amendment.

65.Certification and delivery of consolidation

After preparing the consolidation the Commission is to —

(a)seal the consolidation and certify on the consolidation that it is a correct statement and representation of the region planning scheme as in force at the date specified in the direction given by the Minister; and

(b)deliver the consolidation to the Minister.

66.Proof of consolidation

(1)If the Minister approves of the consolidation and signs the consolidation, the Commission is to publish notice of the consolidation in the Gazette.

(2)After publication of the notice —

(a)the consolidation is to be judicially noticed by all courts, tribunals, bodies and persons; and

(b)the consolidation is to be taken, unless the contrary intention is shown, to be a correct statement and representation of the region planning scheme as in force on the date specified in the Minister’s direction.

67.Consolidation of portion of region planning scheme

(1)The Minister may direct the Commission to deliver to the Minister a consolidation of the portion of a region planning scheme (whether by reference to a map of the scheme or any other portion of the scheme) as is specified in the direction.

(2)The provisions of this Division apply to and in relation to the consolidation of the portion of the scheme so specified in the direction as though the portion of the scheme so specified were the whole scheme.

Part 5 — Local planning schemes

Division 1 — Continuation and formulation of local planning schemes

68.Town planning schemes continued as local planning schemes

(1)Any town planning scheme in force under the Town Planning and Development Act 1928 on the day on which this section comes into operation —

(a)continues in force as a local planning scheme under this Act; and

(b)has effect as if it were enacted by this Act.

(2)Nothing in this Act affects the validity of a town planning scheme continued under subsection (1).

69.General objects of local planning scheme

(1)A local planning scheme may be made under this Act with respect to any land —

(a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and

(b)making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.

(2)With those objects a local planning scheme may provide for planning, replanning, or reconstructing, the whole or any part of the local planning scheme area.

70.Scheme may be made for land outside scheme or be concurrent with another scheme

(1)Nothing in this Act prevents —

(a)a local planning scheme from being made with respect to land comprised in another local planning scheme; or

(b)subject to subsection (2), 2 or more local planning schemes from having force and effect concurrently with respect to any land.

(2)The zoning of land in an area to which a local planning scheme applies is not to be provided for in more than one local planning scheme applicable to that area.

71.Prohibition on making local planning scheme in redevelopment area

A local planning scheme is not to be made for any land that is —

(a)in the development area as defined in the East Perth Redevelopment Act 1991, the Subiaco Redevelopment Act 1994, the Midland Redevelopment Act 1999 or the Armadale Redevelopment Act 2001, so long as there is in operation in respect of that land a redevelopment scheme under Part 4 of any of those Acts; or

(b)in the redevelopment area as defined in the Hope Valley‑Wattleup Redevelopment Act 2000.

72.Local government may prepare or adopt scheme

(1)Subject to section 71, a local government may —

(a)prepare a local planning scheme with reference to any land within its district, or with reference to land within its district and other land within any adjacent district; or

(b)adopt, with or without modifications, a local planning scheme proposed by all or any of the owners of any land with respect to which the local government might itself have prepared a scheme.

(2)A local government and another local government may —

(a)jointly prepare a local planning scheme with respect to land that is partly in the district of the first‑mentioned local government and partly in the district of the other local government; or

(b)jointly adopt, with or without modifications, a local planning scheme proposed by all or any of the owners of any land with respect to which the local governments might themselves have prepared a scheme.

(3)Where a local planning scheme is prepared or adopted under subsection (2) a reference in this Act to the local government or responsible authority that is preparing or has prepared the scheme is to be read as a reference to the local governments that join in the preparation or adoption of the scheme.

73.Provisions of local planning scheme

(1)A local planning scheme is to —

(a)define in such manner as may be prescribed by the regulations the area to which the scheme is to apply;

(b)specify the local government to be responsible for enforcing the observance of the scheme, and for the execution of any works which, under the scheme or this Act, are to be executed by a local government;

(c)provide for matters which may be dealt with by general provisions prescribed under section 256;

(d)otherwise supplement, exclude or vary the general provisions to the extent approved by the Minister; and

(e)deal with any special circumstances or contingencies for which adequate provision is not made by the general provisions.

(2)Where land included in a local planning scheme is in the districts of more than one local government, or is in the district of a local government by which the scheme was not prepared, the responsible authority in relation to the local planning scheme may be one of those local governments, or for certain purposes of the scheme one local government, and for other purposes of the scheme another local government.

74.Local planning scheme may be repealed

A local planning scheme may be repealed by —

(a)a subsequent local planning scheme; or

(b)an instrument of repeal prepared by the local government, approved by the Minister and published in the Gazette.

75.Local planning scheme may be amended

A local government may amend a local planning scheme with reference to any land within its district, or with reference to land within its district and other land within any adjacent district, by an amendment —

(a)prepared by the local government, approved by the Minister and published in the Gazette; or

(b)proposed by all or any of the owners of any land in the scheme area, adopted, with or without modifications, by the local government, approved by the Minister and published in the Gazette.

Division 2 — Minister’s powers in relation to local planning schemes

76.Minister may order local government to prepare or adopt local planning scheme

(1)If the Minister is satisfied on any representation that a local government —

(a)has failed to take the requisite steps for having a satisfactory local planning scheme prepared and approved in a case where a local planning scheme ought to be made;

(b)has failed to adopt any scheme proposed by owners of any land, in a case where a local planning scheme ought to be adopted; or

(c)has refused to consent to any modifications or conditions imposed by the Minister,

the Minister may order the local government, within such time as is specified in the order, to prepare and submit for the approval of the Minister a local planning scheme, or to adopt a local planning scheme, or to consent to the modifications or conditions imposed.

(2)If the representation under subsection (1) is that a local government has failed to adopt a scheme, the Minister, in lieu of making an order to adopt the scheme, may approve of the proposed scheme subject to such modifications and conditions, if any, as the Minister thinks fit.

(3)A scheme approved under subsection (2) has effect as if it had been adopted by the local government and approved by the Minister under this Part.

Division 3 — Relevant considerations in preparation or amendment of local planning scheme

77.Effect of State planning policy

(1)Every local government in preparing or amending a local planning scheme —

(a)is to have due regard to any State planning policy which affects its district; and

(b)may include in the scheme a provision that a specified State planning policy, with such modifications as may be set out in the scheme, is to be read as part of the scheme, or a provision however expressed to the same effect.

(2)Where a scheme includes a provision referred to in subsection (1)(b) —

(a)the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent policy by which it is repealed under this Act, were set out in full in the scheme; and

(b)the State planning policy is to have effect as part of the scheme subject to any modifications set out in the scheme.

(3)Modifications referred to in subsection (2)(b) prevail over any later amendment of the State planning policy, or subsequent policy referred to in subsection (2)(a), which is inconsistent with the modifications.

78.Schemes and amendments applicable to the Swan Valley

(1)If the City of Swan resolves to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, that would apply to land in the Swan Valley, that City, before the scheme or the amendment is advertised for public inspection under the regulations, is to refer the proposed scheme or amendment to the Swan Valley Planning Committee.

(2)The Swan Valley Planning Committee, within 42 days after the day on which it receives the referral, or within such longer period as the City of Swan allows, is to give to the City its written advice on the proposed scheme or amendment, including any modifications it thinks should be made.

(3)If the Swan Valley Planning Committee fails to give its advice within the time allowed under subsection (2), it is to be taken to have no advice to give on the proposed scheme or amendment.

(4)The Commission may, at the request of the City of Swan, approve of the City disregarding the Committee’s advice in whole or in part in preparing the scheme or amendment.

(5)Subject to any approval under subsection (4), the City of Swan is to prepare the local planning scheme or the amendment in accordance with any advice given by the Swan Valley Planning Committee under this section.

79.Advice from Heritage Council

If an entry in the Register or on any inventory maintained under section 45 or 46 of the Heritage of Western Australia Act 1990 relates to land or waters that are within or abut a local government district, the local government in preparing or amending a local planning scheme —

(a)is to refer the proposed scheme or amendment to the Heritage Council for advice in so far as any proposal under that scheme or amendment affects or may affect any such land or waters;

(b)is to have regard to any advice given; and

(c)is not to proceed, without the consent of the Minister, with the proposal unless or until that advice has been received.

80.Swan River management programme

If a management programme in force under Part 3 of the Swan River Trust Act 1988 relates to land or waters that are within or abut the district of a local government referred to in Schedule 2 of that Act, the local government in preparing or amending a local planning scheme is to have due regard to that management programme.

81.Referral of scheme or amendment to EPA

When a local government resolves to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, the local government is to forthwith refer the proposed local planning scheme or amendment to the EPA by giving to the EPA —

(a)written notice of that resolution; and

(b)such written information about the local planning scheme or amendment as is sufficient to enable the EPA to comply with section 48A of the EP Act in relation to the local planning scheme or amendment.

82.Environmental review

(1)When the EPA has acted under section 48C(1)(a) of the EP Act in relation to a proposed local planning scheme or a proposed amendment to a local planning scheme, the local government concerned, if it wishes to proceed with that local planning scheme or amendment, is to undertake, or cause under subsection (5) to be undertaken, an environmental review of that local planning scheme or amendment in accordance with the relevant instructions issued under that section.

(2)The local government is not to advertise that local planning scheme or amendment under section 84 until —

(a)the local government has forwarded the environmental review to the EPA; and

(b)the EPA has advised that that review has been undertaken in accordance with those instructions, or 30 days have elapsed since that forwarding without the EPA having advised whether or not that review has been undertaken in accordance with those instructions, whichever first occurs.

(3)If the EPA has advised that the review has not been undertaken in accordance with the relevant instructions issued under section 48C(1)(a) of the EP Act, the local government may —

(a)comply with subsection (1) in respect of the local planning scheme or amendment concerned; or

(b)request the Minister to consult the Minister for the Environment and, if possible, agree with that Minister on whether or not the review has been undertaken in accordance with those instructions.

(4)If the Minister, having complied with a request made under subsection (3), and the Minister for the Environment —

(a)agree on whether or not the review has been undertaken in accordance with the relevant instructions, their decision is final and without appeal or review; or

(b)cannot so agree, section 48J of the EP Act applies.

(5)If —

(a)the resolution to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, referred to in subsection (1) was passed at the request of the owner of land to which that local planning scheme or amendment relates;

(b)the local government referred to in that subsection by written notice served on that owner requests the owner to undertake an environmental review of that local planning scheme or amendment in accordance with the relevant instructions issued under section 48C(1)(a) of the EP Act; and

(c)that owner wishes that local planning scheme or amendment to proceed,

the owner is to undertake the environmental review and forward that review to that local government.

(6)The local government may, in accordance with regulations made under section 259, recover the expenses incurred by the local government in undertaking an environmental review in accordance with instructions issued under section 48C(1)(a) of the EP Act.

83.Consultation of persons likely to be affected

A local government, before submitting a local planning scheme or amendment to the Minister under section 87, is to make reasonable endeavours to consult in respect of the local planning scheme or amendment such public authorities and persons as appear to the local government to be likely to be affected by the local planning scheme or amendment.

Division 4 — Advertisement and approval

84.Advertisement of scheme or amendment

After compliance with sections 81 and 82, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government, is to be advertised for public inspection in accordance with the regulations.

85.Role of local governments in relation to environmental submissions

(1)When a local government has been informed under section 48A(1)(b)(i) of the EP Act that a proposed local planning scheme or amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the local government is to —

(a)as soon as practicable, but in any event within 7 days after the expiry of the period during which that local planning scheme or amendment is advertised under section 84, transmit to the EPA a copy of each submission —

(i)made during that period; and

(ii)relating wholly or in part to environmental issues raised by that local planning scheme or amendment;

and

(b)within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in paragraph (a) inform the EPA of its views on and response to the environmental issues referred to in paragraph (a) and received within that period.

86.Prerequisite to final approval by Minister

The Minister is not to approve under section 87(2) of a proposed local planning scheme or amendment referred to the EPA under section 81 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until —

(a)the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that local planning scheme or amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act;

(b)the Minister has received a statement under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that local planning scheme or amendment is subject; or

(c)the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the local government under that section,

whichever first occurs, and the Minister is satisfied that the conditions, if any, to which that amendment is subject have been incorporated into that local planning scheme or amendment.

87.Approval and publication of scheme or amendment

(1)Subject to section 83, after advertisement under section 84 and compliance with sections 85 and 86, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government is to be submitted to the Minister for the approval of the Minister.

(2)The Minister may, in relation to a local planning scheme or amendment submitted to the Minister under subsection (1) —

(a)approve of that local planning scheme or amendment;

(b)require the local government concerned to modify that local planning scheme or amendment in such manner as the Minister specifies before the local planning scheme or amendment is resubmitted for the Minister’s approval under this subsection; or

(c)refuse to approve of that local planning scheme or amendment.

(3)When the Minister has approved a local planning scheme or an amendment to a local planning scheme, the local government is to —

(a)cause the scheme or amendment to be published in the Gazette;

(b)advertise the scheme or amendment in accordance with the regulations; and

(c)ensure that copies of the scheme or amendment are available to the public.

(4)A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act.

(5)It is sufficient compliance with subsection (3) if a local planning scheme or amendment to a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local planning scheme or amendment.

Division 5 — Review of local planning schemes

88.Local government to prepare consolidation

(1)For the purposes of section 90, a local government by which a local planning scheme was prepared is to prepare a consolidation of the scheme incorporating all the amendments that have been made to the scheme and are of effect on the day on which the resolution to prepare the consolidation is made.

(2)The consolidation is to be prepared —

(a)in the fifth year after approval was given to the scheme by the Minister under section 87;

(b)in the case of a scheme in respect of which a consolidation has been published in the Gazette under this Part, in the fifth year after the consolidation of the scheme was last so published; and

(c)in the case of a scheme in respect of which an exemption is granted under subsection (4)(b) or section 91(3), in the fifth year after the notice of exemption was published in the Gazette.

(3)Despite subsections (1) and (2), a local government is not required to prepare a consolidation of the scheme if the local government resolves instead to prepare a new scheme in substitution for that scheme.

(4)Despite subsections (1) and (2), the Minister may at any time, by notice in the Gazette —

(a)direct the local government by which a local planning scheme was prepared to prepare, within the period specified in the notice, a consolidation of the scheme; or

(b)exempt a local government from compliance with those subsections if the scheme does not contain any provision for the zoning or classification of land.

(5)If a consolidation is required under subsection (4)(a) before a consolidation has been prepared under a paragraph of subsection (2), the consolidation is not required under that paragraph.

(6)The Minister is to consult the local government before giving a direction under subsection (4)(a).

89.Submissions on consolidated scheme

(1)After preparing the consolidation the local government is to ensure that the consolidation is approved by the Commission and made available for inspection.

(2)When the consolidation has been approved by the Commission, the local government is to invite submissions from the public on the effectiveness of the scheme, the need for amendment of the scheme and the need for the making of a new scheme.

90.Report on scheme

(1)Not later than 6 months after preparing a consolidation of a local planning scheme, the local government is to make a report to the Minister on the operation of the scheme.

(2)In its report the local government is to —

(a)include all submissions received under section 89;

(b)report and make recommendations on the submissions; and

(c)report and make recommendations as to whether or not the scheme —

(i)is satisfactory in its existing form;

(ii)should be amended;

(iii)should be repealed and a new scheme prepared in its place; or

(iv)should be repealed.

91.Procedure where no change to scheme

(1)If —

(a)a report of a local government under section 90 recommends that a local planning scheme is satisfactory in its existing form and the Minister concurs; or

(b)the Minister, after considering the report of the local government, advises the local government that the local planning scheme is satisfactory in its existing form,

the local government is to cause the consolidation of the local planning scheme prepared under section 88 to be published in the Gazette.

(2)It is sufficient compliance with subsection (1) if a consolidation of a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local planning scheme.

(3)If the Minister considers that the publication of a consolidation of a local planning scheme under subsection (1) is unnecessary or inexpedient the Minister may by notice published in the Gazette declare that the scheme is satisfactory in its existing form and exempt the local government from the requirement to publish the consolidation.

92.Procedure where amendments proposed

(1)If —

(a)a report of a local government under section 90 recommends amendment of a local planning scheme and the Minister concurs; or

(b)the Minister, after considering the report, advises the local government that amendment is recommended,

the local government, within 3 months or such longer period as the Minister may in writing agree from the date of the report or the Minister’s advice as the case may be, is to amend the local planning scheme in accordance with this Part.

(2)After the Minister has under section 87(2), approved the amendments prepared for the purposes of subsection (1), the local government is to —

(a)prepare a consolidation of the local planning scheme, incorporating —

(i)all the amendments that have been made to the scheme and are of effect on the day on which the resolution to prepare the consolidation is made; and

(ii)the amendments prepared for the purposes of subsection (1) and approved by the Minister under section 87(2);

and

(b)publish the consolidation of the local planning scheme in the Gazette.

(3)It is sufficient compliance with subsection (2)(b) if a consolidation of a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local planning scheme.

93.Effect of publication of consolidation

(1)As from the publication of a consolidation of a local planning scheme under section 91 or 92 the consolidation of the local planning scheme —

(a)is to be judicially noticed by all tribunals, bodies and persons; and

(b)is to be taken to be a correct statement and representation of the local planning scheme as of effect on the day on which the resolution to prepare the consolidation was made and, in the case of a consolidation published under section 92, including the amendments prepared for the purposes of subsection (1) of that section and approved by the Minister.

(2)A reference in this or any other Act to a local planning scheme is to be read and construed as including a reference to a consolidation of a local planning scheme published under section 91 or 92.

94.Procedure where new scheme prepared following report

If —

(a)a report of a local government under section 90 recommends that a local planning scheme should be repealed and a new scheme prepared in its place and the Minister concurs; or

(b)the Minister, after considering the report, advises the local government that the local planning scheme should be repealed and a new scheme prepared in its place,

the new scheme is to be prepared by the local government and made in accordance with this Part, within the period of 6 months or such longer period as the Minister may in writing agree from the date of the report or the date of the Minister’s advice as the case may be.

95.Procedure where scheme repealed following report

If —

(a)a report of a local government under section 90 recommends that a local planning scheme should be repealed and not replaced and the Minister concurs; or

(b)the Minister, after considering the report, advises the local government that the local planning scheme should be repealed and not replaced,

the local government is to prepare an instrument of repeal, and forward it to the Minister under section 74(b) within the period of 42 days or such longer period as the Minister may in writing agree from the date of the report or the date of the Minister’s advice as the case may be.

96.Consolidation of 2 or more local planning schemes

Where 2 or more local planning schemes are consolidated, the provisions of the Division apply to those schemes as so consolidated with effect from the date on which they were last published in the Gazette as a consolidation of a scheme with the approval of the Minister.

Division 6 — Crown land

97.Planning of town and suburban lands

(1)If Crown land is to be sold, leased or disposed of, the Commission may prepare a scheme in respect of the land.

(2)The Commission may prepare a scheme in respect of the land with the general objects and provisions set out in section 69.

(3)A scheme prepared under this section, if approved by the Minister and published in the Gazette, has the same effect as a local planning scheme made and approved under this Part.

(4)The provisions of this Act, other than Part 10, so far as consistent and applicable, apply to and in respect of a scheme prepared under this section, as if the Commission were the responsible authority.

(5)If —

(a)a scheme is prepared, approved and published under this section; and

(b)Crown land the subject of the scheme is sold, leased or disposed of,

the Commission, with the approval of the Minister, may —

(c)suspend, vary, supplement, or supersede any of the provisions of the scheme;

(d)agree with a local government to be jointly responsible with that local government, as the responsible authority under and for the purposes of the scheme either with respect to all, or part, of the scheme; or

(e)agree with a local government that the local government is to be substituted as the responsible authority under and for the purposes of the scheme, either with respect to all, or part, of the scheme.

(6)After subsection (7) has been complied with in respect of a scheme to which subsection (5)(e) applies, the scheme is to be taken to be a local planning scheme prepared by the local government substituted as the responsible authority and this Act applies accordingly.

(7)Where the Commission exercises a power under subsection (5) and as a result a scheme is amended, the Minister is to cause notice of the amendment to be published in the Gazette.

Part 6 — Interim development orders

Division 1 — Regional interim development orders

98.Regional interim development orders

(1)Subject to this Part, if —

(a)the Commission is of the opinion that the development of land outside the metropolitan region and within a part of the State in respect of which the Commission has resolved under section 35 to prepare a region planning scheme might materially affect the preparation or implementation of the region planning scheme; and

(b)the Minister approves,

the Commission may make such regional interim development orders as are necessary for regulating, restricting or prohibiting that development.

(2)A regional interim development order may be made by the Commission at any time —

(a)before the relevant procedures set out in Part 4 have been fully complied with in respect of the region planning scheme; and

(b)after the Commission has complied with subsection (3).

(3)Before making a regional interim development order the Commission is to —

(a)inform each local government of a district which lies within or partly within the area to which the proposed regional interim development order will apply of the proposal;

(b)invite that local government to make submissions on the proposal within 28 days; and

(c)provide the Minister with a copy of any submission received under paragraph (b).

99.Contents of regional interim development order

(1)A regional interim development order is to specify the land affected by the regional development order.

(2)A regional interim development order may —

(a)require a person, before commencing to carry out any specified development within the regional order area, to obtain the written approval of the Commission;

(b)regulate, restrict or prohibit any specified class of development within the regional order area;

(c)exempt from the operation of the order any development of a specified class within the regional order area;

(d)provide that the approval of the Commission for the carrying out of any development referred to in the order may, if granted, be granted subject to such conditions as the Commission considers necessary to impose, including, without limiting the generality of those conditions —

(i)a condition limiting the period during which that development may be carried out; and

(ii)a condition requiring the cessation of the development and removal of any structure or building erected under that approval at the expiry of the period so limited;

(e)provide that the Commission may refuse to grant to an applicant its approval of development of a specified class in a specified part of the regional order area;

(f)subject to section 108, suspend, vary, supplement or supersede any of the provisions of the local laws in force under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 in the regional order area.

(3)In subsection (2) —

specified means specified in the regional interim development order concerned.

100.Consultation with local government on development approval

Before granting an application for approval of development referred to in section 99(2)(a), the Commission is to —

(a)refer that application to the local government of the district in which the relevant land lies;

(b)invite the local government to make submissions on the application within 42 days; and

(c)have regard to any submission received under paragraph (b).

101.Restrictions on power to grant development approval

Despite section 129, nothing in a regional interim development order in force in respect of a regional order area empowers the Commission to grant an applicant approval of development if that development contravenes a provision of a local planning scheme in force in the regional order area.

Division 2 — Local interim development orders

102.Local interim development orders

(1)Pending the consideration by the Minister of a proposed local planning scheme for a district or part of a district situated outside the metropolitan region, the Minister may make such local interim development orders as are necessary and in the public interest for regulating, restricting or prohibiting the development of any land within the district or such part of the district.

(2)If a local planning scheme is already in effect in a district or part of a district and it is proposed to make a further local planning scheme for that district or part of a district, the Minister is not to make a local interim development order that has effect in that district or part of a district unless, in the opinion of the Minister, it is in the public interest to do so.

103.Contents of local interim development orders

(1)A local interim development order is to specify the land affected by the order.

(2)A local interim development order may —

(a)require a person, before commencing to carry out any specified development within the local order area, to obtain the written approval of the local government administering the order;

(b)regulate, restrict or prohibit any specified class of development within the local order area;

(c)exempt from the operation of the order any development of a specified class within the local order area;

(d)in the case of land to which the Heritage of Western Australia Act 1990 applies, require the local government administering the order before approving a development application —

(i)to refer the application in question to the Heritage Council;

(ii)not to proceed, without the consent of the Minister, with the application unless or until the advice of the Heritage Council has been received; and

(iii)to have regard to that advice;

(e)provide that the approval of the local government for the carrying out of any development referred to in the order may, if granted, be granted subject to such conditions as the local government considers necessary to impose, including, without limiting the generality of those conditions —

(i)a condition limiting the period during which that development may be carried out; and

(ii)a condition requiring the cessation of the development and removal of any structure or building erected under that approval at the expiry of the period so limited;

(f)provide that the local government administering the order may refuse to grant to an applicant its approval of development of a specified class in a specified part of the local order area;

(g)subject to section 108, suspend, vary, supplement or supersede any of the provisions of the local laws in force under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 in the local order area.

(3)In subsection (2) —

specified means specified in the local interim development order concerned.

Division 3 — Provisions applying to regional and local interim development orders

104.Consultation with public authorities and utility services providers

Before making an interim development order that, in the opinion of the Commission or the local government, as the case requires, may affect the functions of a public authority or utility services provider, the Commission or the local government is to —

(a)inform the public authority or utility services provider of the proposal;

(b)invite that public authority or utility services provider to make submissions on the proposal within 28 days; and

(c)provide the Minister with a copy of any submission received under paragraph (b).

105.Publication of summary of interim development order

(1)On the making of a regional interim development order the Commission is to cause to be published once in the Gazette and 3 times in a daily newspaper circulating in the part of the State to which the order applies a notice —

(a)containing a summary of the order; and

(b)stating that copies of the order are available for inspection by any person free of charge at the offices of the Commission and of any local government within the area to which the order applies.

(2)At the same time or before acting under subsection (1), the Commission is to publish in the Gazette —

(a)a summary of the relevant resolution made under section 35(1); and

(b)a description of the part of the State to which the relevant proposed region planning scheme is to apply.

(3)On the making of a local interim development order the local government in whose district the order applies is to cause to be published once in the Gazette and 3 times in a daily newspaper circulating in that district a notice —

(a)containing a summary of the order; and

(b)stating that copies of the order are available for inspection by any person free of charge at the offices of the Commission and of any local government within the area to which the order applies.

106.Administration of interim development order

(1)The Commission is to administer each regional interim development order.

(2)The local government or local governments specified in a local interim development order is or are to administer the local interim development order.

107.Effect and duration of interim development order

(1)Subject to subsection (2), an interim development order —

(a)comes into operation on the day of publication of the relevant notice in the Gazette under section 105; and

(b)has effect as if it were enacted by this Act.

(2)An interim development order ceases to have effect in the regional order area or local order area to which it applies —

(a)when the relevant region planning scheme or local planning scheme, as the case requires, comes into operation in respect of that area;

(b)when the interim development order is revoked under section 110; or

(c)on the expiry of 3 years from the day on which the interim development order first applied to that area,

whichever is the sooner.

(3)Despite subsection (2) —

(a)the Commission may, by notice published in the Gazette before a regional interim development order ceases to have effect, extend its operation for a further period not exceeding 12 months and may, if the Commission thinks fit, exercise that power of extension more than once; and

(b)the Minister may, by notice published in the Gazette before a local interim development order ceases to have effect, extend its operation for a further period not exceeding 12 months and may, if the Minister thinks fit, exercise that power of extension more than once.

108.Effect on continued use and permitted development

Nothing in an interim development order prevents —

(a)the continued use of any land for the purpose for which the land was lawfully being used; or

(b)the carrying out of any development for which an approval or approvals, if any, required under this Act or any other Act authorising that development to be carried out, had been obtained and was or were current,

immediately before the coming into operation of the order.

109.Amendment of interim development order

(1)The Commission may, with the approval of the Minister, at any time make an order amending a regional interim development order.

(2)The Minister may at any time make an order amending a local interim development order.

(3)Sections 105(1) or (3) and 107(1) apply with any necessary modifications to such an order as if the order were an interim development order.

110.Revocation of interim development order

(1)The Commission may, with the approval of the Minister, at any time by order published —

(a)once in the Gazette; and

(b)3 times in a daily newspaper circulating in the part of the State to which the relevant regional interim development order applies,

revoke a regional interim development order.

(2)The Minister may at any time by order published —

(a)once in the Gazette; and

(b)3 times in a daily newspaper circulating in the part of the district to which the relevant local interim development order applies,

revoke a local interim development order.

111.Non‑conforming development by local government or public authority

(1)If —

(a)a local government or public authority wishes to carry out within a regional order area any work or undertaking that is not exempted from the operation of the relevant regional interim development order and which, in the opinion of the Commission, would not be in conformity with the proposed region planning scheme for the part of the State in which the regional order area is situated; and

(b)after consultation between the local government or public authority and the Commission, agreement is not reached concerning the coordination of that work or undertaking with the proposals to be included in that proposed region planning scheme,

the Commission may submit the matter to the Minister for determination by the Governor.

(2)If —

(a)a local government or public authority wishes to carry out within a local order area any work or undertaking that is not exempted from the operation of the relevant local interim development order and which, in the opinion of the local government administering the order, would not be in conformity with the proposed local planning scheme for the district in which the local order area is situated; and

(b)after consultation between the local government or public authority wishing to carry out the work or undertaking and the local government administering the order, agreement is not reached concerning the coordination of that work or undertaking with the proposals to be included in that proposed region scheme,

the local government may submit the matter to the Minister for determination by the Governor.

(3)The Governor may, by order, in respect of a matter submitted under subsection (1) or (2) for determination —

(a)prohibit absolutely or for such period as the Governor thinks fit; or

(b)restrict, regulate or permit,

the carrying out of the work or undertaking or any part of it subject to such conditions as the Governor specifies.

(4)An order under subsection (3) has effect subject to any written law with which it is inconsistent.

Part 7  Planning control areas

112.Declaration of planning control areas

(1)If the Commission considers that any land situated in a region to which a region planning scheme applies may be required for one or more of the purposes specified in Schedule 6, the Commission may by notice published in the Gazette and with the approval of the Minister declare that land to be a planning control area.

(2)The power in subsection (1) is not to be exercised in respect of any land or waters in the management area of the Swan River Trust as defined in the Swan River Trust Act 1988.

(3)If the Commission considers that this Part should apply to any land in the Swan Valley, before seeking approval of the declaration the Commission is to —

(a)inform the Swan Valley Planning Committee and invite that Committee to make submissions on the matter within 42 days; and

(b)provide the Minister with a copy of any submissions received from the Committee under paragraph (a).

(4)This Part and the operation of any approval of development granted under this Part have effect subject to section 78 of the Heritage of Western Australia Act 1990.

(5)Where any land is comprised within an area to which the Commission considers that this section should apply and is land to which the Heritage of Western Australia Act 1990 applies, the Commission is to satisfy the Minister before seeking approval to the declaration of that land as a planning control area that full disclosure has been made to, and consultations concluded with, the Heritage Council as to the likely effect of the declaration as regards places to which that Act applies.

113.Declaration may be amended or revoked

The Commission may by notice published in the Gazette and with the approval of the Minister amend or revoke a declaration made under section 112.

114.Duration of declaration

A declaration made under section 112 remains in force until —

(a)the expiry of such period, not exceeding 5 years from the date on which the notice by which that declaration was so made was published in the Gazette, as is specified in that notice; or

(b)it is revoked under section 113,

whichever is the sooner.

115.Applications for approval of development in planning control areas

(1)A person who wishes to commence and carry out development in a planning control area may apply to the local government in the district of which the planning control area is situated for approval of that development.

(2)An applicant is to submit to the local government such plans and other information as the local government may reasonably require.

(3)The local government, within 30 days of receiving the application, is to forward the application, together with its recommendation, to the Commission for determination.

116.Commission may approve or refuse application

(1)After receiving an application and recommendation forwarded to it under section 115(3), the Commission may —

(a)consult with any authority that in the circumstances it thinks appropriate; and

(b)having regard to —

(i)any relevant State planning policy;

(ii)the purposes for which the land to which that application relates is zoned or reserved under a region planning scheme;

(iii)any special considerations relating to the nature of the planning control area concerned and of the development to which that application relates; and

(iv)the orderly and proper planning, and the preservation of the amenity, of the locality in which the land to which that application relates is situated,

approve, subject to such conditions as it thinks fit, or refuse to approve, that application.

(2)The Commission is to give written notice to the applicant of its decision on the application.

117.Commission may revoke approval

(1)If —

(a)the Commission approves an application forwarded to it under section 115(3); and

(b)the development concerned is carried out in a manner which is not in conformity with that approval, or any conditions subject to which that approval was given are not complied with,

the Commission may revoke that approval.

(2)Subsection (1) does not affect the operation of a direction under section 214 or prevent proceedings for an offence against section 220 in respect of that carrying out or non‑compliance alleged to have been committed during the subsistence of that approval.

118.Effect of Part

Nothing in this Part or section 220 affects —

(a)the continued use of any land in a planning control area for the purpose for which it was lawfully being used; or

(b)the continuation and completion of the development of any land in a planning control area, including the erection, construction, alteration or carrying out, as the case requires, of any building, excavation or other works on that land, which development was lawfully being carried out,

immediately before the declaration of the planning control area.

Part 8  Improvement plans

119.Commission may recommend improvement plan

(1)The Commission may —

(a)certify in writing to the Minister that for the purpose of advancing the planning, development and use of any land within a part of the State to which a region planning scheme applies —

(i)the land should be dealt with in all or any of the following ways, namely, planned, replanned, designed, redesigned, consolidated, resubdivided, cleared, developed, reconstructed or rehabilitated; or

(ii)provision should be made for the land to be used for such residential, commercial, industrial, public, recreational, institutional, religious, charitable or other uses, buildings, works, improvements or facilities, or spaces for those purposes, as may be appropriate or necessary;

and

(b)recommend to the Minister that the land should be so dealt with or used for that purpose and made the subject of an improvement plan.

(2)The recommendation is to be accompanied by a copy of the improvement plan and such supporting maps and texts as the Minister may require.

(3)If the Minister accepts the recommendation, the Minister is to forward the recommendation to the Governor for acceptance.

(4)An improvement plan comes into force on the day on which notice of the acceptance of the recommendation of the Governor, and a summary of the improvement plan, is published in the Gazette.

(5)Section 195 applies in respect of the acquisition of land included in an improvement plan in force under this section.

120.Improvement plan may be amended or revoked

(1)The Commission may —

(a)amend an improvement plan by notice of amendment; or

(b)revoke an improvement plan by notice of revocation.

(2)Section 119 applies to a notice of amendment or revocation under subsection (1) as if the notice were a recommendation under that section and the amendment or revocation were an improvement plan.

121.Commission may develop land included in improvement plan

(1)For the purpose of advancing the development of land in accordance with an improvement plan the Commission with the approval of the Governor may —

(a)construct, repair, rehabilitate or improve buildings, works, improvements or facilities on land acquired or held by it under this Act;

(b)return, sell, lease, exchange or otherwise dispose of —

(i)any buildings, works, improvements or facilities and the land appurtenant to the buildings, works, improvements or facilities; and

(ii)any land acquired by the Commission under this Act,

to any person or public authority upon such terms and conditions as the Commission with the approval of the Governor thinks fit;

(c)in respect of land included in an improvement plan but not acquired or held by it under this Act, enter into an agreement with any owner of the land relating to —

(i)the planning, replanning, design, redesign, consolidation, resubdivision, clearing, development, reconstruction or rehabilitation of the land;

(ii)the construction, repair, rehabilitation or improvement of any buildings, works, services, improvements or facilities on the land;

(iii)the sale, purchase, exchange, surrender, vesting, allocation or other disposal of the land, the adjustment or alteration of the boundaries of the land, the pooling of the lands of several owners, the adjustment of rights between owners of the land or other persons interested in the land whether by payments of money or transfers or exchanges of land or otherwise, the valuation of the land and the provision of land for any public open space, public work or any other public purpose;

(iv)the payment, satisfaction or recovery of costs incurred in implementing the agreement; and

(v)such other acts, matters or things as are or may be necessary to give effect to the improvement plan;

and

(d)do any act, matter or thing for the purpose of carrying out any agreement entered into under paragraph (c).

(2)The Commission is to notify in the Gazette particulars of any return, sale, lease, exchange or disposal to any person referred to in subsection (1)(b) within one month of the Governor’s approval.

122.Nothing in this Part derogates from other powers

Nothing in this Part is to be construed as taking away or in any way derogating from or diminishing any power otherwise conferred by this or any other Act upon the Commission or any other authority, body or person.

Part 9  Relationship between region planning schemes, local planning schemes, planning control provisions and written laws

123.Local planning schemes and local laws to be consistent with region planning scheme

(1)A local planning scheme is not to be approved by the Minister under this Act unless the provisions of the local planning scheme are in accordance with and consistent with each relevant region planning scheme.

(2)Local laws which if made would affect or be likely to affect a region planning scheme are not to be made by a local government unless the provisions of the local laws are in accordance with and consistent with each relevant region planning scheme.

124.Effect of region planning scheme on local planning scheme

(1)If a region planning scheme is inconsistent with a local planning scheme, the region planning scheme prevails over the local planning scheme to the extent of the inconsistency.

(2)If a region planning scheme is inconsistent with a local planning scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the region planning scheme has effect, resolve to prepare —

(a)a local planning scheme which is consistent with the region planning scheme; or

(b)an amendment to the local planning scheme which renders the local planning scheme consistent with the region planning scheme,

and which does not contain or removes, as the case requires, any provision which would be likely to impede the implementation of the region planning scheme.

(3)If a region planning scheme is amended and is inconsistent with a local planning scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the amendment to the region planning scheme has effect, resolve to prepare in relation to the land —

(a)a local planning scheme which is consistent with the region planning scheme; or

(b)an amendment to the local planning scheme which renders the local planning scheme consistent with the region planning scheme,

and which does not contain or removes, as the case requires, any provision which would be likely to impede the implementation of the region planning scheme.

(4)In preparing the local planning scheme or amendment the local government is to have due regard to the purpose and planning objectives of the region planning scheme or amendment to the region planning scheme as set out in the statement deposited under section 43(1).

(5)The local government is to, within such reasonable time after the passing of the resolution as is directed in writing by the Minister, forward to the Minister for approval under section 87 the local planning scheme or amendment it has prepared.

125.Minister may direct local government to amend local planning scheme for consistency

(1)The Minister may, by written notice, direct a local government to prepare a local planning scheme or to amend a local planning scheme, in the time and manner set out in the notice, to ensure consistency with a region planning scheme, a proposed region planning scheme or a proposed amendment to a region planning scheme.

(2)A local government to whom a notice is given under subsection (1) is to, within the time set out in the notice —

(a)resolve to prepare a local planning scheme, or an amendment to a local planning scheme, in accordance with the notice;

(b)prepare and advertise the local planning scheme or amendment in accordance with this Part; and

(c)forward to the Minister for approval under section 87 the local planning scheme or amendment prepared by it.

(3)If the Minister so directs, the advertisement of the local planning scheme or amendment to the local planning scheme is to be published together with the notification of the relevant region planning scheme or amendment under section 43 or 58.

126.Zoning amended by region planning scheme

(1)If a region planning scheme delineates land comprised in a local planning scheme as a reserve for any public purpose, then the local planning scheme, in so far as it operates in relation to that land, is, by force of this section and without any further action under this Act, amended to such extent (if any) as is necessary to give effect to the reservation under the region planning scheme.

(2)Notice of any amendment effected under subsection (1) is to be published in the Gazette.

(3)If —

(a)it is proposed that a region planning scheme delineate land comprised in a local planning scheme as land in an Urban zone;

(b)the local government of the district in which the land directly affected by the proposed region planning scheme zoning is situated requests the Commission to amend the local planning scheme under this subsection to change the zoning of that land under the local planning scheme, and the Commission agrees; and

(c)notice of the amendment, as made by the Commission, is published in the Gazette on or after the coming into operation of the region planning scheme,

then the local planning scheme, in so far as it operates in relation to that land, is, by force of this section and without any further action under this Act, amended as set out in that notice on the date of publication of the notice.

127.Minister may direct local government to modify proposed scheme or amendment

(1)The Minister may, before approving a proposed local planning scheme, or amendment to a scheme, prepared by a local government under section 124(2) or 125, direct the local government to —

(a)modify the proposed local planning scheme or amendment in the manner specified in the direction to ensure that the proposed local planning scheme or amendment —

(i)is consistent with the region planning scheme; and

(ii)will not impede the implementation of the region planning scheme;

and

(b)to forward the proposed local planning scheme or amendment as so modified to the Minister for approval under section 87.

(2)A local government is to comply with a direction under subsection (1).

128.Minister may direct local government to adopt scheme or amendment

(1)If a local government does not comply with —

(a)section 124(2);

(b)section 125; or

(c)not later than 60 days after the giving of the direction concerned, section 127(2),

the Minister may —

(d)cause the relevant local planning scheme or amendment to be prepared or modified as the case requires and forwarded to the local government; and

(e)direct the local government to adopt that local planning scheme or amendment as if it were a local planning scheme proposed by owners of land with respect to which the local government might itself have prepared a scheme.

(2)A local government is to comply with a direction under subsection (1)(e).

(3)If a local government to which a direction has been given under subsection (1)(e) does not comply with the direction within 60 days after the relevant local planning scheme or amendment was forwarded to it, the Minister may approve of the local planning scheme or amendment and cause it to be published in the Gazette in accordance with Part 5.

(4)A local planning scheme, or an amendment to an existing local planning scheme, as the case requires, published in the Gazette under subsection (3) takes effect from the date of publication and has effect as if it were made under Part 5.

(5)All costs, charges and expenses incurred by the Minister in the exercise of any powers conferred on the Minister by this section may be recovered by the Minister from the local government concerned as a debt due to the Crown or may be deducted from any moneys payable by the Crown to the local government.

129.Effect of interim development order on local planning scheme and local laws

(1)If there is an inconsistency between —

(a)a local planning scheme in force in a regional order area, or a local law in force in a regional order area under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 or any written law for which the latter Act is in substitution; and

(b)a regional interim development order in force in respect of the regional order area,

the regional interim development order prevails over that local planning scheme or local law to the extent of the inconsistency.

(2)If there is an inconsistency between —

(a)a local planning scheme in force in a local order area, or a local law in force in a local order area under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 or any written law for which the latter Act is in substitution; and

(b)a local interim development order in force in respect of the local order area,

the local interim development order prevails over that local planning scheme or local law to the extent of the inconsistency.

130.Planning control area provisions prevail

The provisions of Part 7 prevail over —

(a)every other provision of this Act;

(b)any region planning scheme; and

(c)any local planning scheme,

to the extent of any inconsistency with those provisions and schemes.

131.Compliance with local government regulations

(1)If there is any inconsistency between a local planning scheme and a regulation made under section 433A of the Local Government (Miscellaneous Provisions) Act 1960, the local planning scheme prevails to the extent of the inconsistency.

(2)In the exercise of any power conferred on it by a local planning scheme a local government is not obliged to have regard to any regulations made under section 433A of the Local Government (Miscellaneous Provisions) Act 1960.

132.Governor may suspend operation of certain written laws

(1)If the carrying out of any provision of a planning scheme would conflict with any provisions, limitations, or conditions of or prescribed by any Act, the responsible authority may apply to the Governor for an order modifying or suspending the provisions of that Act, so far as may be necessary to enable effect to be given to the planning scheme.

(2)Upon application under subsection (1) the Governor may, in respect of that planning scheme but not otherwise, make an order accordingly for the suspension or modification of the provisions or any of them, subject to such conditions and limitations as the Governor thinks fit.

(3)An order under subsection (2) does not take effect unless and until it has been approved by a resolution of both Houses of Parliament.

Part 10 — Subdivision and development control

Division 1 — Application

133.Application to Crown land

(1)Except as provided in subsection (2) and section 168, this Part does not apply to Crown land.

(2)If the Minister to whom the Governor has for the time being committed the administration of the Land Administration Act 1997 intends to subdivide and develop any Crown land under section 27(1) of that Act for the purpose of selling the Crown land under section 74 of that Act, section 134, Division 2 (except section 136), sections 150, 151, 152 and 157, Division 4 and section 167 apply to that Crown land for the purposes of section 27 of the Land Administration Act 1997 as if that Crown land were held in freehold.

134.Application, and effect, of other written laws

(1)Sections 135 and 136 are subject to section 68 of the Environmental Protection Act 1986 and to section 58(6) of the Contaminated Sites Act 2003.

(2)Sections 135 and 136 do not apply to —

(a)the grant of, or to the transfer of or other dealing with or in, a mining tenement as defined in the Mining Act 1904 or the Mining Act 1978 or a portion of such a mining tenement or any shares in the mining tenement or portion;

(b)the conferral of rights under section 34 of the Dampier to Bunbury Pipeline Act 1997; or

(c)the issue of a distribution licence under Part 2A of the Energy Coordination Act 1994.

(3)Where an application is made to the Commission for approval under section 135 or 136 in relation to land in the Swan Valley, unless subsection (8) applies, the Commission is to give full particulars of the application to the Swan Valley Planning Committee.

(4)The Swan Valley Planning Committee, within 42 days after the day on which it receives particulars of an application or within such longer period as the Commission allows, is to give to the Commission its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject.

(5)If the Swan Valley Planning Committee fails to give its advice within the time allowed under subsection (4), it is to be taken to have no advice to give on the application.

(6)The Minister may, at the request of the Commission, approve of the Commission disregarding the Committee’s advice in whole or in part in determining the application.

(7)Subject to any approval under subsection (6) the Commission is to determine the application in accordance with the advice of the Swan Valley Planning Committee.

(8)The Swan Valley Planning Committee may determine that any particular class or description of applications under section 135 or 136 need not be referred to the Committee for advice under this section and is to notify the Commission of any such determination.

Division 2 — Approval for subdivision and certain transactions

135.Approval required for subdivision

(1)A person is not to —

(a)subdivide any lot;

(b)amalgamate any lot with any other lot, whether within the same district or otherwise; or

(c)lay out, grant or convey a road,

without the approval of the Commission.

(2)A person who contravenes subsection (1) commits an offence.

(3)In this section —

road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).

136.Approval required for certain transactions where land not dealt with as a lot or lots

(1)Subject to sections 139 and 140 a person is not to —

(a)lease or grant a licence to use or occupy land for any term exceeding 20 years, including any option to extend or renew the term or period;

(b)lease and grant a licence to use or occupy land for terms in the aggregate exceeding 20 years, including any option to renew or extend the terms or periods;

(c)sell or agree to sell land; or

(d)grant any option of purchase of land,

without the approval of the Commission unless the land is dealt with by way of such lease, licence, agreement or option of purchase as a lot or lots.

(2)A person who contravenes subsection (1) commits an offence.

(3)In this section —

land, in relation to the leasing or the granting of a licence to use or occupy or, where applicable, the leasing and the granting of such a licence, does not include the whole or a portion of a building if —

(a)the building was constructed in accordance with a building licence granted by a local government under section 374 of the Local Government (Miscellaneous Provisions) Act 1960 or under an Act repealed by that Act, or a building licence to construct the building is in force under that section; and

(b)subject to subsection (4), the leasing or the granting of a licence does not relate to any land other than that building or portion;

licence to use or occupy does not include an easement.

(4)A reference in the definition of “land” in subsection (3) to the whole or a portion of a building includes a reference to any area outside that whole or portion, which area is —

(a)the subject of the same lease or licence to use or occupy as that whole or portion or of a lease or licence to use or occupy entered into or granted by the lessor of, or grantor of a licence to use or occupy, that whole or portion; and

(b)used for the purpose of ingress to or egress from that whole or portion, advertising, parking vehicles, storing goods, loading or unloading goods or passengers or for any other purpose necessary or desirable for the convenient occupation of that whole or portion.

137.Applications in respect of heritage land

(1)This section applies to land to which section 78 of the Heritage of Western Australia Act 1990 applies.

(2)The Commission is not to grant an application for its approval under section 135 or 136 in respect of land to which this section applies unless —

(a)the requirements of section 78(1) and (4) of the Heritage of Western Australia Act 1990 have been observed; and

(b)regard has been had to any advice received from the Heritage Council.

(3)If section 78(2)(a) of the Heritage of Western Australia Act 1990 applies, the holder of an approval given by the Commission under section 135 or 136 in respect of land to which this section applies is not to give effect to that approval —

(a)during such time as the operation of the approval is suspended under section 78 of the Heritage of Western Australia Act 1990; or

(b)otherwise than in accordance with section 78(2)(b) and (c) of the Heritage of Western Australia Act 1990.

(4)In relation to any place which is entered in the Register maintained by the Heritage Council under the Heritage of Western Australia Act 1990, any approval given by the Commission under section 135 or 136 in respect of land to which this section applies is to be taken to be revoked under section 78(3) of the Heritage of Western Australia Act 1990.

138.Approval of Commission

(1)The Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before the approval becomes effective.

(2)Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.

(3)The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if —

(a)the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter;

(b)the approval is consistent with a region planning scheme that deals with substantially the same matter;

(c)in the opinion of the Commission —

(i)the conflict is of a minor nature; or

(ii)the approval is consistent with the general intent of the local planning scheme;

(d)the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict;

(e)in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or

(f)the approval is given in circumstances set out in the regulations.

(4)Despite subsection (3), the Commission is to ensure that an approval under section 135 or 136 complies with the provisions of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land under consideration.

139.Approved classes of lease or licence

(1)A person may without the approval of the Commission lease or grant a licence to use or occupy land for a term of any duration and otherwise than as a lot or lots if that lease or licence —

(a)belongs to a class of lease or licence for the time being approved under subsection (3) in respect of the person; and

(b)complies with such conditions as are imposed under subsection (3) in respect of that person.

(2)A person may apply to the Commission in writing for a class of lease or licence to use or occupy land to be approved under subsection (3) in respect of that person.

(3)On receiving an application made under subsection (2) the Commission may, having regard to —

(a)the nature of the interest proposed to be granted under leases or licences of the class concerned;

(b)the classification or zoning of the land to which leases or licences of the class concerned will relate;

(c)the proposed terms of leases or licences of the class concerned, whether for the lives of the proposed lessees or licensees or for fixed periods;

(d)the anticipated number or frequency of leases or licences of the class concerned; and

(e)such matters other than those referred to in paragraphs (a), (b), (c) and (d) as the Commission considers relevant,

approve the class of lease or licence concerned in respect of the applicant for the purposes of subsection (1), subject to such conditions as the Commission thinks fit to impose in respect of that approval, or refuse to approve that class.

(4)The Commission may at any time revoke or amend an approval given under subsection (3) by notice in writing of that revocation or amendment served on the person in respect of whom or which that approval was given.

140.Saving of certain agreements

(1)Where an agreement to sell or grant an option to purchase, or to lease or grant or lease and grant a licence to use or occupy any portion of a lot has been entered into without the approval of the Commission having been first obtained as required under this Division, that agreement is to be taken not to have been entered into in contravention of this Division if —

(a)the agreement is entered into subject to the approval of the Commission being obtained; and

(b)an application for the approval of the Commission is made within a period of 3 months after the date of the agreement.

(2)Nothing in this Division renders the agreement illegal or void by reason only that the agreement was entered into before the approval of the Commission was obtained.

(3)Without prejudice to the operation of section 141, the agreement referred to in subsection (1) has no effect, unless and until the Commission gives its approval —

(a)within a period of 6 months after the date of the agreement or within such further period as is stipulated in that agreement; or

(b)within such further period as is stipulated in a subsequent agreement in writing made —

(i)by all the parties to the first‑mentioned agreement; or

(ii)when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party.

141.Refund where transaction cannot be completed

Where, after payment of consideration for any transaction relating to any land, it is found that the transaction cannot be completed —

(a)within a period of 6 months after the date of entering into the transaction or within such further period as is stipulated in the transaction; or

(b)within such further period as is stipulated in a subsequent agreement in writing made —

(i)by all the parties to the transaction; or

(ii)when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party,

because the land cannot be dealt with as a lot or lots, the person who paid the consideration is entitled to a refund of the consideration from the person to whom it was paid.

142.Objections and recommendations

(1)When, in the opinion of the Commission, a plan of subdivision may affect the functions of a local government, a public authority, or a utility services provider, the Commission is to forward the plan or a copy of the plan to that local government, public authority or utility services provider for objections and recommendations.

(2)A local government, public body or utility services provider receiving such a plan or copy is to, within 42 days of receipt of the plan or copy or within such longer period as the Commission allows, forward it to the Commission with —

(a)a memorandum in writing containing any objections to, or recommendations in respect of, the whole or part of that plan; and

(b)in the case of a local government receiving a plan or copy relating to land within the area to which an assessed scheme (as defined in the EP Act) applies, advice of any relevant environmental condition to which the assessed scheme is subject.

(3)If a local government, public authority or utility services provider does not forward a memorandum within the time allowed under subsection (2), the Commission may determine that it is to be taken to have no objections or recommendations to make or advice to give.

143.How Commission is to deal with plan of subdivision

(1)After considering any objections or recommendations contained in a memorandum forwarded to the Commission under section 142, and any advice of a relevant environmental condition forwarded to it under that section, the Commission is to —

(a)approve the plan of subdivision;

(b)refuse to approve the plan of subdivision; or

(c)approve the plan of subdivision and require the applicant for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of survey will be endorsed with the approval of the Commission.

(2)The Commission is to try to deal with the plan of subdivision in one of the ways mentioned in subsection (1) within the period of 90 days after the day on which the plan was submitted to the Commission for approval or within such longer period after that day as may be agreed in writing between the Commission and the applicant for approval.

144.Reconsideration of refusal to approve plan of subdivision

(1)If the Commission under section 143 refuses to approve a plan of subdivision and the applicant for approval concerned is dissatisfied with the refusal, that applicant may within 28 days of being notified of the refusal request in writing the Commission to reconsider the refusal.

(2)On receiving a request under subsection (1), the Commission, by notice in writing served on the person who made that request, may —

(a)approve the plan of subdivision;

(b)again refuse to approve the plan of subdivision; or

(c)approve the plan of subdivision and require the applicant for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of survey will be endorsed with the approval of the Commission.

145.Endorsement of approval upon diagram or plan of survey of subdivision

(1)A person to whom approval of a plan of subdivision has been given may, within the prescribed period —

(a)submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and

(b)request the Commission to approve the diagram or plan of survey of the subdivision.

(2)In subsection (1) —

prescribed period means —

(a)in relation to a plan of subdivision creating more than 5 lots, the period of 4 years after the Commission approved the plan of subdivision; and

(b)in any other case, the period of 3 years after the Commission approved the plan of subdivision.

(3)If a subdivision is being carried out in stages, a diagram or plan of survey of the subdivision may be submitted to the Commission under subsection (1) in relation to a stage of subdivision.

(4)Subject to subsection (6), if the Commission is satisfied that —

(a)the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and

(b)if that approval was given subject to conditions —

(i)the conditions have been complied with or will be complied with at the time a certificate of title is created or registered;

or

(ii)in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage of subdivision or the subdivision as a whole, have been complied with or will be complied with at the time a certificate of title is created or registered,

the Commission is to endorse its approval on the diagram or plan of survey.

(5)The Commission is to try to deal with the request under subsection (1)(b) within the period of 30 days after the day on which the request is made to the Commission or within such longer period after that day as may be agreed in writing between the Commission and the person making the request.

(6)If, in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the Commission is of the opinion that, because of planning considerations, it is not appropriate to approve the diagram or plan of survey, the Commission may refuse to endorse its approval on the diagram or plan of survey.

(7)If, at the expiration of the period referred to in subsection (1), a diagram or plan of survey of the subdivision has not been submitted to the Commission, the approval of the plan of subdivision ceases to have effect and the diagram or plan of survey cannot be submitted to the Commission under this section.

146.No certificate of title for subdivided land without endorsement of Commission approval

(1)The Registrar of Titles is not to create or register a certificate of title under the Transfer of Land Act 1893 for land the subject of a plan of subdivision unless a diagram or plan of survey of the subdivision of that land has been endorsed with the approval of the Commission and —

(a)in the case of a diagram or plan of survey endorsed with the approval of the Commission before the coming into operation of this section, the title application was lodged with the Registrar of Titles before, or is lodged with the Registrar of Titles within 5 years after, the coming into operation of this section;

(b)in the case of a diagram or plan of survey endorsed with the approval of the Commission on or after the coming into operation of this section, the diagram or plan of survey has been endorsed with the approval of the Commission within the 24 months preceding the lodging of a title application with the Registrar of Titles; and

(c)any conditions as to the registration or recording or continued registration or recording of an encumbrance or other document on or before the creation or registration of a certificate of title that are noted on the diagram or plan of survey have been complied with, or will be complied with at the time the certificate of title is created or registered.

(2)In subsection (1)(a) and (b) —

title application, in relation to a diagram or plan of survey, means an application for new titles to be created and registered for land the subject of the diagram or plan of survey.

(3)A plan containing one lot only is deemed a diagram or plan of survey of a subdivision provided that it is a portion of land comprised in —

(a)a certificate of title;

(b)a registered conveyance;

(c)a Crown grant; or

(d)a lot on a plan deposited with the TLA Department.

147.Approval required for certain transfers and other dealings

(1)The Registrar of Titles is not to register a transfer, conveyance, lease or mortgage of any land unless —

(a)it has first been approved in writing by the Commission;

(b)the land comprises the whole of one or more lots, or the land comprises part of a lot included in a diagram or plan of survey of subdivision that has been approved by the Commission; or

(c)in the case of a lease, the lease does not contain or purport to contain an option to purchase land other than the whole of one or more lots and —

(i)the term is not more than 20 years, including any option to extend or renew the term;

(ii)section 136(1) does not apply to the lease by virtue of the definition of “land” in section 136; or

(iii)the lease is a lease which may be entered into without the approval of the Commission by virtue of section 139(1).

(2)The Registrar of Titles is not to create and register in the name of a registered proprietor a certificate of title for a portion of land, not being the whole of one or more lots, unless the application from the registered proprietor for the certificate of title has been endorsed with the approval of the Commission.

Division 3 — Conditions of subdivision

148.Conditions as to development

Without limiting section 143, the Commission may impose a condition under that section that requires —

(a)development to be integrated with the subdivision of the lot as specified by the Commission where, in the opinion of the Commission, such integration is necessary because of the size of the lots and potential impact on the amenity of the locality; and

(b)development approval for building on the lot to be granted before the diagram or plan of survey of the subdivision will be endorsed with the approval of the Commission.

149.Conditions on rural land (tied lots)

(1)In this section —

rural land means land zoned for agricultural or rural use under a local planning scheme.

(2)Without limiting section 143, the Commission may approve a plan of subdivision in respect of rural land subject to conditions imposed under that section that require —

(a)a restrictive covenant to be created and made binding under section 129BA of the Transfer of Land Act 1893 so that no dwelling may be constructed on a specified lot to be created by the subdivision; and

(b)the lot to which the restrictive covenant is to apply (the tied lot) to be —

(i)owned by a person who is the owner of another specified lot (the principal lot); and

(ii)used for agricultural purposes together with the principal lot.

(3)The applicant is to ensure that any diagram or plan of survey for a subdivision referred to in subsection (2) includes a notation that the approval of the Commission is subject to the conditions referred to in that subsection.

(4)The Commission is to provide the Registrar of Titles with any further information requested by the Registrar of Titles, in the form, if any, specified in the request.

(5)When the Registrar of Titles creates or registers a certificate of title under the Transfer of Land Act 1893 for a tied lot, the Registrar of Titles is to endorse or note —

(a)the title of the tied lot to give a person searching the title to that land notice that it is a tied lot; and

(b)the title of the principal lot to give a person searching the title to the land notice that there is a tied lot in relation to the principal lot.

(6)The Registrar of Titles is not to register a transfer, conveyance, lease or mortgage of a tied lot or a principal lot unless —

(a)the transfer, conveyance, lease or mortgage is endorsed with the approval of the Commission; or

(b)the principal lot is transferred, conveyed, leased or mortgaged together with the tied lot in one and the same transaction.

(7)A person who —

(a)contravenes; or

(b)directly or indirectly, enters into a transaction relating to land for the purpose of avoiding,

a condition referred to in subsection (2) commits an offence.

(8)In any proceedings for an offence under subsection (7), a certificate of the Minister certifying that the purpose of the transaction in question is to avoid a condition referred to in subsection (2) and set out in that certificate is prima facie evidence of that purpose.

(9)Subsection (7) does not apply to a transaction approved by the Commission.

(10)Regulations made for the purposes of this section may provide for —

(a)the rights, powers and privileges given to, and duties imposed on, a specified person or authority where a condition referred to in subsection (2) is imposed;

(b)the removal or modification of a restrictive covenant created pursuant to a condition referred to in subsection (2);

(c)the circumstances in which the Commission will approve the substitution of a principal lot or a transfer, conveyance, lease or mortgage of a tied lot or a principal lot;

(d)the procedure for the approval;

(e)the certification of relevant facts in relation to the approval; and

(f)any other matter necessary or convenient to be prescribed for giving effect to the purposes of this section.

150.Conditions on road access

(1)Without limiting section 143, the Commission may impose a condition under that section that access to and from a portion of land shown on a plan or diagram of survey relating to the subdivision to a road abutting the portion of land is to be restricted or prohibited as set out in the condition and in accordance with the regulations.

(2)A condition referred to in subsection (1) is to specify a covenantee.

(3)Where —

(a)a diagram or plan of survey of a subdivision or a plan lodged for registration under the Strata Titles Act 1985 is received at the TLA Department; and

(b)it is shown on the plan or diagram that access to and from any portion of land shown on the plan or diagram to and from a road abutting the portion of land is subject to or intended to be subject to a restriction or prohibition as set out in a condition imposed by the Commission,

the land becomes subject to a covenant so restricting or prohibiting that access —

(c)in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(d)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893.

(4)It is sufficient description for the purposes of subsection (3)(b) if reference is made on the plan or diagram to this section and regulations made for the purposes of this section.

151.Reconsideration of conditions

(1)If the Commission under section 143 imposes conditions and the applicant concerned is dissatisfied with any such condition, that applicant may within 28 days of being notified of that condition request in writing the Commission to reconsider that condition.

(2)On receiving a request under subsection (1), the Commission may by notice in writing served on the person who made that request —

(a)alter or revoke the condition to which that request relates; or

(b)confirm the condition.

152.Certain land to vest in the Crown

(1)If the Commission has approved a subdivision of land subject to a condition that one or more portions of land shown on a diagram or plan of survey relating to the subdivision or a plan under the Strata Titles Act 1985 are to vest in the Crown for any one or more of the following purposes —

(a)conservation or protection of the environment;

(b)an artificial waterway;

(c)a pedestrian accessway;

(d)a right‑of‑way;

(e)a reserve for water supply, sewerage, drainage, foreshore management, waterway management or recreation;

(f)a public purpose specified in the condition and related to the subdivision,

then, subject to the encumbrances referred to in subsection (5), the land subject to the condition vests in the Crown by force of this section without any conveyance, transfer or assignment or the payment of any fee.

(2)Land vested under subsection (1) is vested —

(a)in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(b)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan of survey, has or have been registered under the Transfer of Land Act 1893.

(3)Land vested under subsection (1) —

(a)is Crown land;

(b)does not form part of a parcel comprised in a plan that is registered under the Strata Titles Act 1985;

(c)is to be taken to be reserved under section 41 of the Land Administration Act 1997 for the purpose set out in the condition; and

(d)may be dealt with in accordance with the Land Administration Act 1997.

(4)The Registrar of Titles is to do all things necessary to give effect to this section.

(5)Land vested under this section is to be vested subject to —

(a)any easement on that land created for the purposes of the subdivision, shown on the diagram or plan of survey and referred to in section 167;

(b)any easement on that land created under Part IVA of the Transfer of Land Act 1893 for the purposes of the subdivision and shown on the diagram or plan of survey;

(c)any existing encumbrance specified in a direction of the Minister responsible for the administration of the Land Administration Act 1997, or a person authorised in writing by that Minister for the purposes of this section, lodged with the Registrar of Titles on or before the vesting; and

(d)any encumbrance prescribed, or of a class prescribed, by the regulations.

153.When owner may pay money in lieu of land being set aside for open space

(1)If the Commission has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in the Crown for parks, recreation grounds or open spaces generally and —

(a)the Commission, after consultation with the local government in whose district the portion is situated, so requires; or

(b)the Commission, the local government in whose district the portion is situated and the owner of the land so agree,

the owner of that land is to, in lieu of setting aside the portion, pay to that local government a sum that represents the value of the portion.

(2)The Commission is not to impose a requirement referred to in subsection (1)(a) in respect of a plan of subdivision that creates less than 3 lots.

154.How money received in lieu of open space is to be dealt with

(1)All money received by a local government under section 153 is to be paid into a separate account of the trust fund of the local government established under section 6.9 of the Local Government Act 1995.

(2)The money is to be applied —

(a)for the purchase of land by the local government for parks, recreation grounds or open spaces generally, in the locality in which the land included in the plan of subdivision referred to in section 153 is situated;

(b)in repaying any loans raised by the local government for the purchase of any such land;

(c)with the approval of the Minister, for the improvement or development as parks, recreation grounds or open spaces generally of any land in that locality vested in or administered by the local government for any of those purposes; or

(d)with the approval of the Commission, in reimbursing an owner (the first owner) of land included in a joint subdivision agreement for land that has been set aside and vested for parks, recreation grounds or open space where —

(i)the first owner set aside a greater proportion of land than another owner (the second owner); and

(ii)as a consequence, the local government and the Commission approved of the second owner paying to the local government a sum in lieu of land being set aside for that purpose and that sum, or the relevant proportion of that sum, being reimbursed to the first owner for the excess proportion of land set aside by the first owner.

(3)If interest is earned from the investment of moneys held under subsection (1), that money is to be applied for a purpose set out in subsection (2).

155.How value of portion is determined

(1)In this section —

licensed valuer means —

(a)a licensed valuer as defined in the Land Valuers Licensing Act 1978; or

(b)the Valuer‑General,

but nothing in subsection (3)(a) or in this definition is to be construed as obliging the Valuer‑General to undertake a valuation for the purposes of this section;

market value of land means the capital sum which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require.

(2)For the purposes of section 153, the value of the portion is to be such percentage of the market value of the land of which the portion forms part as the area of the portion bears to the area of that land.

(3)For the purposes of subsection (2), the market value of land —

(a)is to be determined, at the cost of the owner of the land, by a licensed valuer agreed upon by the parties or, failing agreement, appointed by the local government; and

(b)is to be so determined —

(i)as at the date on which the valuation is made;

(ii)on the basis that there are no buildings, fences or other improvements of a like nature on the land;

(iii)on the assumption that any rezoning necessary for the purpose of the subdivision has come into force; and

(iv)taking into account the added value of all other improvements on or appurtenant to the land.

(4)The licensed valuer is to give the valuation to the owner of the land and the local government.

(5)If within 90 days, or such longer time as is agreed in writing by the local government, of the date on which the valuation is made the owner of the land has not —

(a)paid the amount of the valuation; or

(b)disputed the valuation under section 156,

the local government may, by written notice to the owner of the land, determine that the valuation is no longer current and that a fresh valuation is required.

156.Dispute as to valuation

(1)If either the owner of the land or the local government disputes a valuation made under section 155, the valuation may be varied by agreement between the parties or the dispute may be settled by such method as they may agree upon.

(2)If after 28 days from the date when both parties have received the valuation the dispute has not been settled or an agreement made as to the method of settlement, either the owner of the land or the local government may refer the dispute for determination by an arbitrator under the Commercial Arbitration Act 1985.

157.When approval of subdivision is deemed to be approval under planning scheme

(1)Subject to subsection (2), when the Commission has approved a plan of subdivision of any land to which a planning scheme relates, that approval is to be taken to be approval by the responsible authority under the planning scheme of the carrying out of works necessary to enable the subdivision of the land that are —

(a)shown on the plan of subdivision; or

(b)required by the Commission to be carried out as a condition of approval of the plan of subdivision.

(2)When approving a plan of subdivision the Commission may determine that the approval is not to be taken under subsection (1) to be approval by the responsible authority under the planning scheme of the carrying out of works specified in the determination, and the determination has effect accordingly.

Division 4 — Subdivision costs

158.Expenses of road or waterway construction and road drainage

(1)Where a person who is subdividing land is required under this Part to construct and drain roads or construct artificial waterways shown on the plan of subdivision that person may —

(a)carry out or cause to be carried out the construction and drainage at his or her own expense; or

(b)arrange for the local government to carry out the work on behalf, and at the cost and expense, of that person.

(2)Where the person does not make the arrangement with the local government, that person is to pay to the local government, on demand, an amount (calculated under subsection (3)) to cover the reasonable costs of the local government in supervising the construction and drainage.

(3)For the purposes of subsection (2) the amount is to be calculated as follows —

(a)where the person has not engaged a consulting engineer and clerk of works to design and supervise the construction and drainage, the amount is to be 3% of the cost of the construction and drainage as estimated by the local government;

(b)where the person has engaged a consulting engineer and clerk of works to design and supervise the construction and drainage, the amount is to be 1½% of the cost of the construction and drainage as estimated by the local government.

(4)The local government may require the person to employ a consulting engineer and clerk of works to design and supervise the construction and drainage and that person, when required to do so by the local government, is to carry out the requirement.

159.Subdivider may recover portion of road costs from subsequent subdivider

(1)Where —

(a)a person (in this section called the later subdivider) has subdivided land in which —

(i)a lot or lots has or have a common boundary with; or

(ii)a road joins,

an existing road to which there is access from the subdivided land;

(b)a person (in this section called the original subdivider) who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing or upgrading the existing road; and

(c)the later subdivider did not contribute to that cost,

the original subdivider may, in accordance with this Division, recover from the later subdivider a sum representing one‑half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, as referred to in paragraph (a).

(2)In this section —

CPI means the Table described as the Consumer Price Index (All Groups Index) for Perth published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth, or if the same is not published, such other similar index as the Minister may reasonably determine;

market value of land means the capital sum, determined in accordance with section 155(3)(b)(ii), (iii) and (iv), which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require;

road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).

(3)In this section a reference to the cost of providing a road is a reference to the aggregate of —

(a)the value, as at the date of the subdivision referred to in subsection (1)(b), of the portion of the land provided as a road, being such percentage of the market value of the total area of land comprised in that subdivision as the area of the road bears to that total area as at the date of that subdivision; and

(b)the reasonable cost of designing and carrying out the following works —

(i)the survey of the land provided as a road;

(ii)the formation, preparation, priming and sealing of the road; and

(iii)the provision of kerbing, drainage and service ducts in connection with the road,

escalated by the percentage by which the CPI last published prior to the date of the subsequent subdivision has increased over the CPI last published prior to the original subdivider subdividing the land referred to in subsection (1)(b).

160.How subdivision costs recovered

An amount payable under section 159 may be recovered by the original subdivider in a court of competent jurisdiction as a debt due to the original subdivider by the later subdivider; but no proceedings for recovery of the debt are to be commenced after the expiration of 6 years from the date of the later subdivision.

161.When land is subdivided

For the purposes of this Division land is subdivided on the date on which the approval of the Commission is endorsed on the diagram or plan of survey relating to the subdivision of the land.

Division 5 — Development controls

162.Development requires approval

(1)Subject to this Act, where a planning scheme or interim development order provides that development referred to in the planning scheme or interim development order is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme or interim development order applies unless —

(a)the approval has been obtained and is in force under the planning scheme or interim development order; and

(b)the development is carried out in accordance with the conditions subject to which the approval was granted.

(2)Nothing in this section limits or otherwise affects a right or entitlement under any other written law.

163.Heritage places

Where any land comprised within a place entered in the Register maintained by the Heritage Council under the Heritage of Western Australia Act 1990, or of which such a place forms part, is to be the subject of development, an application for approval of the development is to be made —

(a)in the case of an application under a local planning scheme or local interim development order, to the responsible authority; and

(b)in any other case, to the Commission.

164.Development may be approved after commencement

(1)A responsible authority may grant its approval under a planning scheme or interim development order for development already commenced or carried out.

(2)The Commission may grant its approval under section 116 for development already commenced or carried out in a planning control area.

(3)Subsections (1) and (2) do not affect the operation of the provisions of Part 13 in respect of development commenced or carried out before approval has been granted.

(4)Development which was unlawfully commenced or carried out is not rendered lawful by the occurrence of any subsequent event except the approval by the relevant responsible authority of that development.

(5)The continuation of development unlawfully commenced is to be taken to be lawful upon the grant of approval for the development.

Division 6 — Miscellaneous

165.Record of conditions on title

(1)This section applies when the Commission considers it desirable that owners or prospective owners of land comprised in —

(a)a plan of subdivision or proposed plan of subdivision; or

(b)a strata/survey‑strata plan or proposed strata/survey‑strata plan under the Strata Titles Act 1985,

be made aware of hazards or other factors seriously affecting the use or enjoyment of that land and determines that the title and land register in respect of that land should be noted accordingly.

(2)When this section applies, the Commission may cause a notification of the hazard or other factor affecting the use or enjoyment of the land to be prepared in a form acceptable to the Registrar of Titles and deposited at the TLA Department.

(3)Where a notification is deposited under subsection (2), the Registrar of Titles is to endorse or note the title and land register in respect of the land with that notification.

(4)The Commission may, at any time after the notification has been deposited under subsection (2), lodge a withdrawal of that notification at the TLA Department.

(5)A withdrawal of a notification under subsection (4) is to be in a form acceptable to the Registrar of Titles.

166.Encroachments

If, after the erection of a building on land the property of one owner —

(a)it is found that the building encroaches upon land the property of another owner to the extent of not more than one metre;

(b)the encroaching owner desires to purchase the land upon which the encroachment stands;

(c)an application for approval of the necessary subdivision is made by the owner of the land encroached upon; and

(d)the Commission is satisfied that there has not been collusion and that everything has been done in good faith without intention to evade the law,

the Commission is to approve of the necessary subdivision.

167.Easements

(1)Where —

(a)a diagram or plan of survey of a subdivision or a plan lodged for registration under the Strata Titles Act 1985 is received at the TLA Department; and

(b)it is shown on the plan or diagram that any land comprised in the diagram or plan is subject to or intended to be subject to an easement in favour of —

(i)the local government in whose district the land is situated, for the purposes of sewerage or drainage or access to sewerage or drainage works;

(ii)a licensee as defined in the Water Services Licensing Act 1995, for the purpose of water supply, sewerage, irrigation or drainage works or access to water supply, sewerage, irrigation or drainage works;

(iii)the holder of a licence under the Electricity Industry Act 2004 for the purpose of the supply of electricity or access to electricity supply works;

(iv)the holder of a distribution licence under the Energy Coordination Act 1994 for the purpose of the supply of gas, or access to gas supply works, under the authority of that licence; or

(v)any holder of a licence under a written law for the purpose of the supply of a utility service or access to a utility service, under the authority of that licence,

the land becomes subject to an easement in favour of the person or authority mentioned on the plan or diagram for the purpose mentioned on the diagram or plan —

(c)in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(d)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893.

(2)An easement in favour of a person or authority for any purpose, to which any land is subject by virtue of this section, gives that person or authority such rights, powers and privileges as are prescribed in respect of an easement in favour of that person or authority for that purpose.

(3)If, by virtue of this section, any land is subject to an easement, the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence that the land is so subject, and, for the purpose of making any such entry or endorsement or registering any such memorial, it is sufficient description of the easement if reference is made to this section.

(4)Where, by virtue of this section, any land is subject to an easement in favour of a person or authority for any purpose, the Registrar of Titles may, by order made —

(a)upon application in writing by the person or authority; and

(b)with the consent in writing of all persons having a registered interest in the land,

vary or extinguish the easement and upon such variation or extinction, the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence the variation or extinction.

(5)The purpose of an easement in favour of a person or authority is to be taken to be varied if —

(a)the prescribed circumstances set out in the regulations occur; and

(b)the person or authority gives written consent to that variation,

and the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence the variation.

168.Roads

(1)All land on a diagram or plan of survey of a subdivision or a plan lodged for registration under the Strata Titles Act 1985 deposited in the TLA Department that is shown as a new road is dedicated as a road.

(2)The local government within the district in which the dedicated road is situated has the care, control and management of the road.

(3)All land on a diagram or plan of survey of a subdivision or a plan lodged for registration under the Strata Titles Act 1985 deposited at the TLA Department that is shown as a road widening or is for the purpose of extending or adding to a road forms part of the road and is dedicated to the public use.

(4)Subsections (1) and (3) operate —

(a)in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(b)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893.

(5)When a portion of land is transferred to the Crown or a local government for the purpose of extending or adding to a road, the transferred portion is to be taken —

(a)to be dedicated to the public use; and

(b)to form part of the road,

as and from the date of registration of the transfer in the TLA Department.

(6)When a road corner shown on a plan deposited in the TLA Department or in the LAA Department is subsequently rounded off or truncated, the portion of land so excised forms part of the road and is dedicated to the public use.

(7)The local government within the district in which the land referred to in subsection (6) is situated has the care, control and management of the land.

(8)Subsection (6) operates —

(a)in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act;

(b)in the case of a plan lodged with an application for a new certificate or certificates, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the plan have been registered;

(c)in the case of a plan lodged with an application for registration of a document giving effect to the rounding off or truncation, at the time of the registration of that document.

(9)Land referred to in subsection (1), (3) or (6) does not form part of a parcel comprised in a plan that is registered under the Strata Titles Act 1985.

169.Commission may fix minimum standards of construction

(1)The Commission may by notice published in the Gazette fix minimum standards of construction with respect to roads and artificial waterways to be constructed on a proposed subdivision.

(2)A notice published under subsection (1) may set out particulars relating to the width, kerbing, thickness, surfacing and foundations of roads, and the materials to be used in the construction of roads and artificial waterways.

(3)A notice published under subsection (1) is subsidiary legislation for the purposes of sections 43 and 44 of the Interpretation Act 1984.

(4)A person who without the approval of the Commission constructs a road or artificial waterway on a subdivision that does not comply with the standards set out in a notice published under subsection (1) commits an offence.

170.Local government to be provided with specifications for roads and waterways

(1)Before a person who is subdividing land commences to construct and drain roads or construct artificial waterways shown in the diagram or plan of survey, that person is to give to the local government —

(a)drawings showing longitudinal and cross sections of the proposed road or artificial waterway;

(b)specifications of the proposed road or artificial waterway; and

(c)such other information including information relating to levels, drainage, nature of soil, and physical features as the local government requires.

(2)A person who does not comply with subsection (1) commits an offence.

(3)The local government may by written notice require the person subdividing the land —

(a)to amend the drawings or specifications or both; and

(b)to comply with such further conditions as the local government thinks fit to impose in respect of the proposed road or waterway,

for the purpose of ensuring that the construction and drainage of the road or construction of the artificial waterway is consistent with the approval of the Commission.

(4)Without limiting the powers conferred on a local government by subsection (3), where —

(a)a person delivers drawings and specifications of a proposed road or artificial waterway to a local government under subsection (1); and

(b)the proposed road or artificial waterway, if constructed in accordance with those plans and specifications, would not satisfy the minimum standards fixed under section 169 applicable to the proposed road or artificial waterway,

the local government is to by written notice require the person to so amend the drawing or specifications, or both, as to cause the proposed road or artificial waterway to satisfy those minimum standards.

(5)A person who is aggrieved by a requirement of the local government made under subsection (3) may apply to the State Administrative Tribunal for a review, in accordance with Part 14, of the responsible authority’s decision.

(6)A person who does not comply with a requirement of a local government made by written notice given to that person under subsection (3) commits an offence.

Part 11 — Compensation and acquisition

Division 1 — General matters in relation to compensation

171.Only one entitlement to compensation

(1)If compensation has been paid under a provision of this Part in relation to a matter or thing no further compensation is payable under any other provision of this Act as a result of the same matter or thing.

(2)When a person is entitled to compensation under this Act in respect of any matter or thing, and is also entitled to compensation in respect of the same matter or thing under any other written law, that person is not entitled to compensation in respect of that matter or thing both under this Act and that other written law, and is not entitled to any greater compensation under this Act than that person would be under the other written law.

Division 2 — Compensation where land injuriously affected by planning scheme

172.Meaning of terms used in this Division

In this Division —

Board means the Board of Valuers established under section 182;

non‑conforming use means a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7;

public purpose means a purpose which serves or is intended to serve the interests of the public or a section of the public and includes a public work.

173.Entitlement to compensation where land injuriously affected by planning scheme

(1)Subject to this Part any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.

(2)Despite subsection (1) a person is not entitled to obtain compensation under this section on account of any building erected, or any contract made, or other thing done with respect to land included in a planning scheme after the date of the approval of a planning scheme or amendment, or after such other date as the Minister may fix for the purpose, being not earlier than the date of the approval of the scheme or amendment.

(3)A responsible authority may make agreements with owners for the development of their land during the time that the planning scheme or amendment is being prepared.

174.When land is injuriously affected

(1)Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if —

(a)that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose;

(b)the scheme permits development on that land for no purpose other than a public purpose; or

(c)the scheme prohibits wholly or partially —

(i)the continuance of any non‑conforming use of that land; or

(ii)the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non‑conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated.

(2)Despite subsection (1)(c)(ii), a planning scheme which prescribes any requirement to be complied with in respect of a class or kind of building is not to be taken to have the effect of so prohibiting the erection, alteration or extension of a building of that class or kind in connection with, or in furtherance of that class or kind in connection with, or in furtherance of, non‑conforming use.

(3)Where a planning scheme wholly or partially prohibits the continuance of any non‑conforming use of any land or the erection, alteration or extension of any building in connection with or in furtherance of a non‑conforming use of any land, no compensation for injurious affection is payable in respect of any part of the land which immediately prior to the coming into operation of the scheme or amendment does not comprise —

(a)the lot or lots on which the non‑conforming use is in fact being carried on;

(b)if the prohibition relates to a building or buildings standing on one lot, the lot on which the building stands or the buildings stand; or

(c)if the prohibition relates to a building or buildings standing on more than one lot, the land on which the building stands or the buildings stand and such land, which is adjacent to the building or buildings, and not being used for any other purpose authorised by the scheme, as is reasonably required for the purpose for which the building or buildings is or are being used.

(4)If any question arises under subsection (3) as to whether at any particular date, any land —

(a)does or does not comprise the lot or lots on which a non‑conforming use is being carried on;

(b)is or is not being used for any purpose authorised by a scheme; or

(c)is or is not reasonably required for the purpose for which any building is being used,

the claimant or responsible authority may apply to the State Administrative Tribunal for determination of that question.

175.No entitlement to compensation where provisions are, or could have been, in certain other laws

When land is alleged to be injuriously affected by reason of the making or amendment of a planning scheme, no compensation is payable in respect of the injurious affection if or so far as the relevant provisions of the planning scheme are —

(a)also contained in any Act, or in any order having the force of an Act of Parliament, in operation in the area; or

(b)such as would have been enforceable without compensation if they had been contained in local laws.

176.How questions determined

(1)A claimant or responsible authority may apply to the State Administrative Tribunal for determination of any question as to whether land is injuriously affected.

(2)Any question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid as compensation under this Division is to be determined by arbitration under and in accordance with the Commercial Arbitration Act 1985, unless the parties agree on some other method of determination.

177.When compensation is payable if land reserved for public purpose

(1)Subject to subsection (3), when under a planning scheme any land has been reserved for a public purpose, no compensation is payable by the responsible authority for injurious affection to that land alleged to be due to or arising out of such reservation until —

(a)the land is first sold following the date of the reservation; or

(b)the responsible authority —

(i)refuses an application made under the planning scheme for approval of development on the land; or

(ii)grants approval of development on the land subject to conditions that are unacceptable to the applicant.

(2)Compensation for injurious affection to any land is payable only once under subsection (1) and is so payable —

(a)under subsection (1)(a) to the person who was the owner of the land at the date of reservation referred to in subsection (1)(a); or

(b)under subsection (1)(b) to the person who was the owner of the land at the date of application referred to in subsection (1)(b),

unless after the payment of that compensation further injurious affection to the land results from —

(c)an alteration of the existing reservation of the land; or

(d)the imposition of another reservation of the land.

(3)Before compensation is payable under subsection (1) —

(a)when the land is sold, the person lawfully appointed under section 176 to determine the amount of the compensation is to be satisfied that —

(i)the owner of the land has sold the land at a lesser price than the owner might reasonably have expected to receive had there been no reservation of the land under the planning scheme;

(ii)the owner before selling the land gave written notice to the responsible authority of the owner’s intention to sell the land; and

(iii)the owner sold the land in good faith and took reasonable steps to obtain a fair and reasonable price for the land;

or

(b)when the responsible authority refuses an application made under the planning scheme for approval of development on the land or grants approval of development on the land subject to conditions that are unacceptable to the applicant, the person lawfully appointed under section 176 to determine the amount of the compensation is to be satisfied that the application was made in good faith.

178.When claim for compensation may be made

(1)A claim for compensation for injurious affection to land by the making or amendment of a planning scheme is to be made —

(a)in the case of a claim in respect of injurious affection referred to in section 174(1)(a) or (b), at any time within 6 months after —

(i)the land is sold;

(ii)the application for approval of development on the land is refused; or

(iii)the approval is granted subject to conditions that are unacceptable to the applicant;

or

(b)in the case of a claim in respect of injurious affection referred to in section 174(1)(c), within the time, if any, limited by the planning scheme.

(2)The time limited by a planning scheme under subsection (1)(b) is to be not less than 6 months after the date when notice of the approval of the scheme is published in the manner prescribed by the regulations.

179.Amount of compensation for injurious affection arising out of reservation for public purposes

(1)Subject to this Division, the compensation payable for injurious affection due to or arising out of the land being reserved under a planning scheme, where no part of the land is purchased or acquired by the responsible authority, is not to exceed the difference between —

(a)the value of the land as so affected by the existence of such reservation; and

(b)the value of the land as not so affected.

(2)The values referred to in subsection (1)(a) and (b) are to be assessed as at the date on which —

(a)the land is sold as referred to in section 178(1)(a);

(b)the application for approval of development on the land is refused; or

(c)the approval is granted subject to conditions that are unacceptable to the applicant.

180.Notification may be lodged if compensation paid

(1)When compensation for injurious affection to any land has been paid under section 177, the responsible authority may lodge with the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, specifying —

(a)the date of payment of compensation;

(b)the amount of compensation so paid; and

(c)the proportion (expressed as a percentage), which the compensation bears to the unaffected value of the land as assessed under section 179(2).

(2)On receipt of the notification from the responsible authority, the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, is to register the notification.

181.Responsible authority may recover compensation if reservation revoked or reduced

(1)Where —

(a)compensation for injurious affection to land (the original compensation) has been paid to an owner of land in the circumstances set out in section 177; and

(b)as a result of the planning scheme being amended or revoked the reservation of the land for a public purpose is revoked or the area of the land the subject of the reservation is reduced,

the responsible authority is entitled to recover from the owner of the land at the date of the revocation or reduction of the reservation an amount (the refund) which is determined by calculating the relevant proportion (as determined under subsections (4) to (7)) of the value of the land as at the date on which the refund becomes payable under subsection (2).

(2)The refund is not payable by the owner of the land until the land is first sold or subdivided following the date of the revocation or reduction referred to in subsection (1)(b) unless otherwise agreed by the owner and the responsible authority.

(3)If the land is owned by 2 or more people they are jointly and severally liable to pay the refund.

(4)When the reservation has been revoked the relevant proportion for the purposes of subsection (1) is the same as the proportion referred to in section 180(1)(c) in relation to the original compensation.

(5)Where the area of the reservation has been reduced the relevant proportion for the purposes of subsection (1) is to be determined as follows — 

(a)a notional amount of compensation is determined under sections 177 and 179 as if — 

(i)the reservation had never occurred;

(ii)a reservation of the reduced area had occurred when the reduction occurred; and

(iii)the land were being sold;

(b)the proportion (expressed as a percentage) which that notional amount of compensation bears to the current value of the land (unaffected by the existence of the reservation) is calculated; and

(c)the relevant proportion is then determined by deducting the proportion calculated under paragraph (b) from the proportion referred to in section 180(1)(c) in relation to the original compensation.

Example:Original compensation
proportion


25%

Less

 

Notional compensation
proportion


15%

Relevant proportion =

10%

(6)Despite subsection (4), where the reservation is revoked after an amount has been recovered under subsection (2) in respect of a previous reduction of the reservation, the relevant proportion is the same as the notional compensation proportion calculated under subsection (5)(a) and (b) in respect of the previous reduction.

(7)Despite subsection (5), where the reservation is reduced after an amount has been recovered under subsection (2) in respect of a previous reduction of the reservation, the relevant proportion is to be determined as follows — 

(a)a notional compensation proportion is calculated under subsection (5)(a) and (b) in respect of the subsequent reduction; and

(b)the relevant proportion is then determined by deducting the proportion referred to in paragraph (a) from the notional compensation proportion calculated under subsection (5)(a) and (b) in respect of the previous reduction.

Example:Notional compensation
proportion calculated
under subsection (5)(a)
and (b) on previous
reduction





15%

Less

 

Notional compensation
proportion calculated
under subsection (5)(a)
and (b) on
subsequent reduction





8%

Relevant proportion
on subsequent
reduction=



7%

(8)For the purposes of subsections (1) and (5)(b) the value of the land is to be determined by one of the methods set out in section 188(2)(a), (b)or(c), but that value is to be determined without regard to any increase in value attributable to factors unrelated to the reservation or to its revocation or reduction.

(9)When the responsible authority has an entitlement to recover an amount under subsection (1) it has an interest in the land and may lodge with the Registrar a notification in a form acceptable to the Registrar of the existence of that interest, and may withdraw, in a form acceptable to the Registrar, any notification so lodged.

(10)On receipt of the notification or a withdrawal of notification from the responsible authority, the Registrar is to register the notification or withdrawal of notification.

(11)Before selling or subdividing land in respect of which a notification is lodged under subsection (9), the owner of the land is to give written notice to the responsible authority, in accordance with the regulations, of the owner’s intention to sell or subdivide the land.

(12)Where a notification is lodged under subsection (9) the Registrar of Titles is not to register a transfer of the land without the consent of the responsible authority.

(13)Where a notification as to the land is lodged under subsection (9) with the Registrar of Deeds and Transfers without the consent of the responsible authority, registration of the document the subject of the notification is null and void.

(14)Subject to subsection (15), in the case of land reserved under a region planning scheme, subsection (1) has effect whether the reservation of the land occurred before the commencement of this section or occurs after that commencement.

(15)In the case of land reserved under the Metropolitan Region Scheme, where the reservation occurred before the commencement of this Act, subsection (1) does not have effect if —

(a)the revocation or reduction of the reservation occurred before 1 July 1998; or

(b)the sale or subdivision referred to in subsection (2) occurred before 1 March 1995,

but otherwise has effect whether the revocation or reduction occurred before the commencement of this section or occurs after that commencement.

(16)In any other case subsection (1) has effect if the revocation or reduction occurs after the commencement of this section.

(17)In this section —

register means to register under the Registration of Deeds Act 1856 or Transfer of Land Act 1893, as the case requires;

Registrar means the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires.

182.Board of Valuers

(1)A Board of Valuers is established.

(2)The Board consists of the following members appointed by the Governor —

(a)a chairperson nominated by the Commission; and

(b)3 other members nominated by the body known as The Real Estate Institute of Western Australia and incorporated under the Associations Incorporation Act 1987.

(3)Each of the persons appointed to the Board is to be an Associate or a Fellow of the Australian Property Institute, an association incorporated under the laws of South Australia.

(4)Judicial notice is to be taken of the signature of the chairperson on any finding of the Board.

(5)Schedule 9 has effect.

183.Valuations by the Board

(1)The owner of land that is subjected to injurious affection due to, or arising out of, the land being reserved under a planning scheme for a public purpose who gives notice of intention to sell the land and claim compensation is to, unless the responsible authority waives the requirement, apply to the Board of Valuers in the prescribed manner for a valuation of the land as not so affected and the Board is to make the valuation.

(2)Subject to subsection (4), a valuation made by the Board under subsection (1) is to be communicated to the applicant and to the responsible authority and, for the purposes of this Division, a valuation so made is final.

(3)Upon receipt of a valuation made by the Board under this section, the responsible authority is to advise the owner of the subject land of the minimum price at which the land may be sold without affecting the amount of compensation (if any) payable to him or her under this Division.

(4)Where any land with respect to which a valuation has been made under this section is not sold within a period of 6 months from the making of the valuation, the Board may, at the request of the owner of the land, if in the circumstances of the case it thinks it just to do so, review the valuation and either confirm the valuation or vary it.

(5)Where the Board reviews a valuation under subsection (4), it is to notify the owner of the land and the responsible authority accordingly and upon that notification subsection (3), with such modification as circumstances require, applies to the valuation as reviewed by the Board.

Division 3 — Other compensation

184.Betterment, and compensation where scheme amended or repealed

(1)If, by the expenditure of money by the responsible authority in the making and carrying out of a planning scheme, any land or property is within 12 months of the completion of the work, or of the section of the work affecting the land, as the case may be, increased in value, the responsible authority may recover from any person whose land or property is so increased in value, one half of the amount of that increase.

(2)A claim by a responsible authority for the purposes of subsection (1) is to be made within the time, if any, limited by the planning scheme, not being less than 3 months after the date when notice of the approval of the scheme is first published.

(3)If a planning scheme is amended or repealed by an order of the Minister under this Act any person who has incurred expenditure for the purpose of complying with the planning scheme is entitled to compensation from the responsible authority, in so far as any such expenditure is rendered abortive by reason of the amendment or repeal of the planning scheme.

(4)A question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which —

(a)the responsible authority is entitled to recover under this section from a person whose land is increased in value; or

(b)is to be paid as compensation under this section,

is to be determined by arbitration in accordance with the Commercial Arbitration Act 1985 or by some other method agreed by the parties.

185.Compensation in relation to interim development order

(1)Compensation for injurious affection to any land within a regional order area or a local order area or for loss arising from any other cause is payable under this Part as a result of the operation of the relevant interim development order if, and only if —

(a)the Commission or the local government administering the interim development order —

(i)refuses an application made under that interim development order for approval of development on that land; or

(ii)grants such an application subject to conditions,

on the ground that the proposed planning scheme for the regional order area or local order area, as the case requires, is to include that land within a reservation for public purposes; and

(b)any decision for the review of which the claimant has made an application under section 249 has been affirmed in whole or in part by the State Administrative Tribunal.

(2)The Commission or local government, as the case requires, may, and if the claimant so requests is to, purchase any land injuriously affected at a price not exceeding the value of that land at the time of —

(a)the refusal of approval; or

(b)the grant of approval subject to conditions,

without regard to any increase in value attributable wholly or in part to the proposed region planning scheme or proposed local planning scheme for the regional order area or local order area in which the land is situated.

(3)If the land is not purchased under subsection (2), when compensation of the kind referred to in subsection (1) is claimed that compensation is to be determined by arbitration in accordance with the Commercial Arbitration Act 1985 or by some other method agreed by the parties.

186.Compensation in relation to planning control areas

(1)Compensation is payable in respect of land injuriously affected by the declaration, or by the amendment of the declaration, of a planning control area, and land so affected may be acquired by the Commission, in the same circumstances and to the same extent as if the land in the planning control area, instead of being in the planning control area, had been reserved under a planning scheme for a public purpose.

(2)Division 2 applies to compensation payable under this section as if any reference in that Division to compensation for injurious affection to any land were a reference to compensation under this section for injurious affection as a result of the declaration of a planning control area under section 112, or the amendment of the declaration under section 113.

Division 4 — Purchase or compulsory acquisition

187.Election to acquire instead of compensation

(1)Where compensation for injurious affection is claimed as a result of the operation of the provisions of section 174(1)(a) or (b), the responsible authority may at its option elect to acquire the land so affected instead of paying compensation.

(2)The responsible authority, within 3 months of the claim for injurious affection being made, is to by written notice given to the claimant —

(a)elect to acquire the land; or

(b)advise that it does not intend to acquire the land.

(3)Where the responsible authority elects to acquire the land as provided in subsections (1) and (2), if the responsible authority and the owner of the land are unable to agree as to the price to be paid for the land by the responsible authority, the price at which the land may be acquired by the responsible authority is to be the value of the land as determined in accordance with section 188.

(4)If —

(a)an owner of land claims compensation and the responsible authority elects to purchase the land instead of paying compensation; and

(b)the price to be paid for the land by the responsible authority has not been determined for the purposes of subsection (3),

the owner of the land may withdraw the claim for compensation and, upon that withdrawal, the election has no effect.

188.How value of land is to be determined

(1)The value of the land referred to in