Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Bill 2016

An Act to amend the Associations Incorporation Act 1981 , the Building Act 1975 , the Local Government Electoral Act 2011 , the Planning Act 2016 , the Planning and Environment Court Act 2016 , the Planning (Consequential) and Other Legislation Amendment Act 2016 and the Sustainable Planning Act 2009 for particular purposes

1Short title

This Act may be cited as the Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2016 .

2Commencement

Part 4, other than sections 25, 26 and 29, commences on a day to be fixed by proclamation.

3Act amended

This part amends the Associations Incorporation Act 1981 .

4Amendment of s 5 (Eligibility for incorporation)

Section 5(1)(e)(iii)—
insert—

Example for subparagraph (iii)—

an association that, as its main purpose, receives and holds gifts within the meaning of the Local Government Electoral Act 2011 , section 107 for use by a member or person nominated by a member for a purpose relating to an election under that Act

5Act amended

This part amends the Building Act 1975 .

6Replacement of s 6 (What is a building development application)

Section 6—
omit, insert—

6What is a building development application

A building development application is an application for a development approval under the Planning Act—

(a) if the local government is the assessment manager for the application—to the extent the application is for building work that, under that Act, must be assessed against the building assessment provisions; and

Note—

For the functions of a local government in relation to building development applications, see section 51.

(b)if a private certifier is the assessment manager for the application—for building work.

7Amendment of s 25 (General requirements for supporting documents)

Section 25(2)(a)(ii), ‘concurrence agency assessment’—
omit, insert—

referral agency’s response

8Amendment of s 83 (General restrictions on granting building development approval)

(1)Section 83(1)(a) and (b) and examples—
omit, insert—

(a)until, under the Planning Act, all necessary development permits and SPA compliance permits are effective for development, other than building work, that may affect any or all of the following—

(i)the form or location of the building work;

(ii)the use of the building or other structure;

(iii)the assessment of the building development application; and

Example—

A proposal involves building work, a material change of use, reconfiguring a lot and operational work under the Planning Act. The private certifier is engaged to carry out building assessment work and decide the building development application. The private certifier must not grant the building development approval applied for until all necessary development permits and SPA compliance permits are effective for—

•the material change of use, which will affect the use of the building or other structure

•reconfiguring the lot, which will affect the location of the building work on the reconfigured lot

•the operational work, other than operational work that does not affect the form or location of the building work or assessment of the building development application, including, for example, landscaping work.

(b)if the building development application is for a development permit that, under the Planning Act, section 245A, does not authorise the carrying out of a part of the building work unless a relevant preliminary approval is in effect for the part—until the relevant preliminary approval is in effect for the part; and

(2)Section 83(1)(d)—
omit, insert—

(d)if, under the Planning Act, a referral agency has jurisdiction for a matter relating to the building work—until—

(i)the referral agency has given its referral agency’s response to the private certifier or, if the referral agency does not give a response before the end of the referral agency’s response period for the application, until after the response period has ended; and

(ii)if the referral agency is the local government—any security it has required for the carrying out of the building work has been given; and

(3)Section 83—
insert—

(4)In this section—

referral agency’s response period, for a building development application, means the referral agency’s assessment period for the application under the Planning Act, including any extension of that period.

relevant preliminary approval see the Planning Act, section 245A(7).

9Amendment of sch 2 (Dictionary)

(1)Schedule 2—
insert—

preliminary approval means a preliminary approval under the Planning Act.

referral agency’s response see the Planning Act, schedule 3.

(2)Schedule 2, definition building development approval, ‘is for building work’—
omit, insert—

approves a building development application

10Act amended

This part amends the Local Government Electoral Act 2011 .

11Amendment of s 106 (Definitions for pt 6)

(1)Section 106, heading, ‘pt 6’—
omit, insert—

part

(2)Section 106—
insert—

disclosure date, for a return, means the day prescribed by regulation for the return.

required period, for an election, means 15 weeks after the polling day for the election or, if no poll is conducted, the day a poll would have been conducted if it were required.

12Amendment of s 114 (Disclosure period for candidates who were previously candidates in a local government election)

Section 114(2)—
omit, insert—

(2)The candidate’s disclosure period for the current election is the period—

(a)starting—

(i) on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—30 days after the polling day for the most recently held election for which the candidate was also a candidate; and

Example for subparagraph (ii)—

If the polling day for the most recently held election was 15 March, the disclosure period starts at the beginning of 15 April.

(b)ending—

(i)on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—30 days after the polling day for the current election.

Example for subparagraph (ii)—

If the polling day for the current election was 31 March, the disclosure period ends at the end of 30 April.

13Amendment of s 115 (Disclosure period—other candidates)

Section 115(2)—
omit, insert—

(2)The candidate’s disclosure period for the election is the period—

(a)starting on the day the first of the following happens or, if they happen at the same time, when they happen—

(i)the person announces the person is to be a candidate in the election;

(ii)the person nominates as a candidate in the election; and

(b)ending—

(i)on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—30 days after the polling day for the election.

Example for subparagraph (ii)—

If the polling day for the current election was 31 March, the disclosure period ends at the end of 30 April.

14Amendment of s 116 (Disclosure period for groups of candidates)

Section 116(a) and (b)—
omit, insert—

(a)starting—

(i) on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—30 days after the polling day for the most recently held quadrennial elections; and

Example for subparagraph (ii)—

If the polling day for the most recently held quadrennial election was 15 March, the disclosure period starts at the beginning of 15 April.

(b)ending—

(i)on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—30 days after the polling day for the current election.

Example for subparagraph (ii)—

If the polling day for the current election was 31 March, the disclosure period ends at the end of 30 April.

15Omission of s 116A (Definition for div 3)

Section 116A—
omit.

16Amendment of s 117 (Gifts to candidates)

(1)Section 117(1) to (3)—
omit, insert—

(1)This section applies if, during a candidate’s disclosure period for an election, the candidate receives a gift of a value equal to or more than $500.

(2)The candidate must give the electoral commission a return about the gift on or before the disclosure date for the return.

(3)Each return must—

(a)be in the approved form; and

(b)state the relevant details for the gift.

(3A)Also, the candidate must, within the required period for the election, give the electoral commission a return in the approved form, stating—

(a)if the candidate received gifts during the disclosure period—

(i)the total value of all gifts received during the disclosure period; and

(ii)the number of entities that gave the gifts; or

(b)otherwise—that no gifts were received during the disclosure period.

(3B)For subsection (1), the value of a gift is taken to include the value of all other gifts previously given to the candidate by the same entity during the candidate’s disclosure period.

(3C)A candidate need not comply with this section if the candidate—

(a)gives a return, in the approved form, to the electoral commission before making the declaration of office under the Local Government Act 2009 , section 169 and the return states the candidate—

(i)does not expect to receive gifts in the candidate’s disclosure period for the election after giving the return; and

(ii)will give returns under this section if gifts are received during the candidate’s disclosure period for the election after giving the return; and

(b)does not receive gifts during the candidate’s disclosure period for the election after giving the return.

(2)Section 117(4), ‘subsection (1)’—
omit, insert—

subsection (2)

(3)Section 117—
insert—

(5)This section does not apply to a candidate who is a member of a group of candidates.

(4)Section 117(3A) to (5)—
renumber as section 117(4) to (8).

17Amendment of s 118 (Gifts to groups of candidates)

(1)Section 118(1) to (3)—
omit, insert—

(1)This section applies if, during the disclosure period for an election for a group of candidates, a member of the group, or a person acting on behalf of the group, receives a gift of a value equal to or more than $500.

(2)The group’s agent must give the electoral commission a return about the gift on or before the disclosure date for the return.

(3)Each return must—

(a)be in the approved form; and

(b)state—

(i)the names of the candidates forming the group; and

(ii)the name, if any, of the group; and

(iii)the relevant details for the gift.

(3A)Also, the agent must, within the required period for the election, give the electoral commission a return in the approved form, stating—

(a)if any members of the group received gifts during the disclosure period—

(i)the total value of all gifts received during the disclosure period; and

(ii)the number of entities that gave the gifts; or

(b)otherwise—that no gifts were received by any member of the group during the disclosure period.

(3B)For subsection (1), the value of a gift is taken to include the value of all other gifts previously given to any member of the group, or a person acting on behalf of the group, by the same entity during the group’s disclosure period.

(2)Section 118(4), ‘subsection (2)’—
omit, insert—

this section

(3)Section 118(3A) to (5)—
renumber as section 118(4) to (7).

18Amendment of s 119 (Particular gifts not to be received)

(1)Section 119(4)—
omit, insert—

(4)For this section, the value of a gift is taken to include the value of all other gifts previously received by the candidate, group of candidates or person acting on behalf of the candidate or group, from the same entity during the candidate’s or group’s disclosure period.

(2)Section 119(5), definition prescribed gift, ‘$200’—
omit, insert—

$500

19Replacement of s 120 (Loans to candidates or groups of candidates)

Section 120—
omit, insert—

120Loans to candidates or groups of candidates

(1)Subsection (2) applies if, during a candidate’s disclosure period for an election, the candidate receives a loan equal to or more than $500.

(2)The candidate must give the electoral commission a return about the loan on or before the disclosure date for the return.

(3)Subsection (4) applies if, during the disclosure period for a group of candidates for an election, the group receives a loan equal to or more than $500.

(4)The agent for the group must give the electoral commission a return about the loan on or before the disclosure date for the return.

(5)However, subsections (1) and (3) do not apply to a loan from a financial institution.

(6)Each return given under subsection (2) or (4) must—

(a)be in the approved form; and

(b)state—

(i)the value of the loan; and

(ii)the date on which the loan was made; and

(iii)the terms of the loan; and

(c)if the loan was made by the members of an unincorporated association, include—

(i)the association’s name; and

(ii)unless the association is a registered industrial organisation—the names and residential or business addresses of the members of the executive committee, however described, of the association; and

(d)if the loan was purportedly made out of a trust fund or out of the funds of a foundation, include—

(i)the names and residential or business addresses of the trustees of the fund or other persons responsible for the funds of the foundation; and

(ii)the title or other description of the trust fund or the name of the foundation; and

(iii)if the loan is made out of a trust account of a lawyer or accountant under the instructions of a person who is in substance the lender—the name and residential or business address of the person; and

(e)if neither paragraph (c) nor (d) apply—the name and residential or business address of the person who made the loan.

(7)Also, the candidate or agent must, within the required period for the election, give the electoral commission a return in the approved form, stating—

(a)if the candidate or group received loans during the disclosure period—

(i)the total value of all loans received during the disclosure period; and

(ii)the number of entities who made the loans; or

(b)otherwise—that no loans were received by the candidate or group during the disclosure period.

(8)For subsections (1) and (3), the amount of a loan received by the candidate or group is taken to include the value of all other loans previously given to the candidate or group by the same entity during the disclosure period.

20Amendment of s 121 (Particular loans not to be received)

(1)Section 121(1) and (2), ‘$200’—
omit, insert—

$500

(2)Section 121—
insert—

(5)For subsections (1) and (2), the amount of a loan received by the candidate or group is taken to include the value of all other loans previously given to the candidate or group by the same entity during the disclosure period.

21Amendment of s 122 (Electoral commission to give reminder notice to candidates)

(1)Section 122(1)(a), ‘section 117(1)’—
omit, insert—

section 117(4) or 120(7)

(2)Section 122(1)(b), ‘section 118(1)’—
omit, insert—

section 118(4) or 120(7)

(3)Section 122(2)(a)—
omit, insert—

(a)the candidate or agent is required to give the return under section 117, 118 or 120; and

(4)Section 122(3)(a), ‘section 117(3)’—
omit, insert—

section 117(6)

(5)Section 122(3)(b), ‘section 118(3)’—
omit, insert—

section 118(6)

22Amendment of s 123 (Definitions for div 4)

(1)Section 123, heading—
omit, insert—

123Definition for division

(2)Section 123, definition required period—
omit.

23Amendment of s 124 (Third party expenditure for political activity)

(1)Section 124(1)(b)—
omit, insert—

(b)the amount of the expenditure is $500 or more.

(2)Section 124(2) to (5)—
omit, insert—

(2)The third party must, for each amount of expenditure incurred during the disclosure period, give the electoral commission a return on or before the disclosure date for the return.

(3)Each return must—

(a)be in the approved form; and

(b)state—

(i)the total value of the expenditure to which the return relates; and

(ii)when the expenditure was incurred; and

(iii)the particular purpose of the expenditure.

(4)For subsection (1)—

(a)each amount of expenditure incurred by the third party is taken to include any amounts previously incurred by the third party for a political activity relating to the election during the disclosure period for the election; and

(b)an amount of expenditure incurred by the third party for a political activity relating to 2 or more elections is taken to have been incurred by the third party for each of the elections.

(5)In this section—

disclosure period, for an election, means the period—

(a)starting—

(i)on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—on the day after the day the returning officer publishes notice of the election in a newspaper under section 25; and

(b)ending—

(i)on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—at 6p.m. on the polling day for the election.

24Amendment of s 125 (Gifts received by third parties to enable expenditure for political activity)

(1)Section 125(1)(a)(ii), ‘$1000’—
omit, insert—

$500

(2)Section 125(2) to (5)—
omit, insert—

(2)The third party who receives the gift must give the electoral commission a return about the gift on or before the disclosure date for the return.

(3)Each return must—

(a)be in the approved form; and

(b)state the relevant details for the gift.

(4)For subsection (1)(a)(ii), the value of the gift is taken to include the value of all other gifts previously given to the third party by the same entity during the disclosure period.

(5)In this section—

disclosure period, for an election (the current election), means the period—

(a)starting—

(i)on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—30 days after the polling day for the most recently held quadrennial elections; and

Example for subparagraph (ii)—

If the polling day for the most recently held quadrennial election was 15 March, the disclosure period starts at the beginning of 15 April.

(b)ending—

(i)on the day prescribed by regulation for this subparagraph; or

(ii)if a day is not prescribed—ending 30 days after the polling day for the current election.

Example for subparagraph (ii)—

If the polling day for the current election was 31 March, the disclosure period ends at the end of 30 April.

25Amendment of s 126 (Requirement for candidate to operate dedicated account)

(1)Section 126(5), after ‘must not’—
omit, insert—

, during the candidate’s disclosure period for the election,

(2)Section 126—
insert—

(5A)If an amount remains in the account at the end of the disclosure period, the amount or part of the amount may—

(a)be kept in the account for the conduct of another election campaign by the candidate; or

(b)if the candidate was a member of a political party during the disclosure period—be paid to the political party; or

(c)be paid to a charity nominated by the candidate.

(5B)An amount mentioned in subsection (6) must not be dealt with other than under that subsection.

(3)Section 126(6), ‘subsections (2) to (5)’—
omit, insert—

subsections (2) to (7)

(4)Section 126(6), penalty, ‘subsection (6)’—
omit, insert—

subsection (8)

(5)Section 126(5A) to (7)—
renumber as section 125(6) to (9).

26Amendment of s 127 (Requirement for group of candidates to operate dedicated account)

(1)Section 127(5), after ‘must not’—
omit, insert—

, during the group’s disclosure period for the election,

(2)Section 127—
insert—

(5A)If an amount remains in the account at the end of the group’s disclosure period for the election, the amount or part of the amount may—

(a)be kept in the account for the conduct of another election campaign by the group; or

(b)if each member of the group was a member of a political party during the disclosure period—be paid to the political party; or

(c)be paid to a charity nominated by the group.

(5B)An amount mentioned in subsection (6) must not be dealt with other than under that subsection.

(3)Section 127(6), ‘subsections (2) to (5)’—
omit, insert—

subsections (2) to (7)

(4)Section 127(6), penalty, ‘subsection (6)’—
omit, insert—

subsection (8)

(5)Section 127(5A) to (6)—
renumber as section 127(6) to (8).

27Insertion of new s 132A

After section 132—
insert—

132A Electronic lodgement of returns

(1)The electoral commission may make procedures about how a return under this part may be lodged electronically.

(2)The procedures—

(a)do not take effect until approved by a regulation; and

(b)must be tabled in the Legislative Assembly with the regulation approving the procedures; and

(c)must be published on the commission’s website.

(3)If a return under this part is lodged as provided for under the procedures, the return is taken to have been given to the electoral commission.

28Amendment of s 195 (Offences about returns)

Section 195(3), ‘section 118(2) or 120(2)’—
omit, insert—

section 118 or 120

29Amendment of s 202 (Local governments responsible for expenditure for conducting local government elections)

(1)Section 202, heading, ‘for conducting local government elections’—
omit, insert—

incurred by electoral commission

(2)Section 202—
insert—

(3)Also, a local government must pay the costs incurred by the electoral commission in carrying out functions relating to conducting elections generally, including, for example—

(a)the remuneration, allowances and reasonable expenses paid to members or staff of the electoral commission; and

(b)the costs of making appropriate administrative arrangements for the conduct of elections.

30Amendment of schedule (Dictionary)

(1)Schedule, definition required period—
omit.

(2)Schedule—
insert—

disclosure date, for a return, see section 106.

required period, for part 6, see section 106.

31Act amended

This part amends the Planning Act 2016 .

32Replacement of s 19 (Applying planning scheme in tidal areas)

Section 19—
omit, insert—

19Applying planning scheme in tidal areas

(1)A local government may apply a planning scheme as a categorising instrument in relation to prescribed tidal works in the tidal area for its local government area—

(a)even if the tidal area is outside its local government area; and

(b)to the extent prescribed under the Coastal Act, section 167(5)(c).

(2)However, subsection (1) does not apply to the extent the tidal area for the local government’s local government area is also the tidal area for strategic port land.

(3)In this section—

strategic port land see the Transport Infrastructure Act, section 286(5).

tidal area, for a local government area or strategic port land, means—

(a)the part or parts of a river, stream or artificial waterway that are—

(i)tidal water in or next to the area or land; and

(ii)between the high water mark and the middle of the river, stream or artificial waterway; and

(b)to the extent the boundary of the area or land is, or is seaward of, the high water mark and outside a river, stream or artificial waterway—tidal water that is seaward and within 50m of the high water mark.

tidal water see the Coastal Act, schedule.

33Amendment of s 48 (Who is the assessment manager)

(1)Section 48(6), from ‘may’—
omit, insert—

may—

(a)decide who is the assessment manager; or

(b)require the application to be split into 2 or more applications.

(2)Section 48(9), after ‘that is’—
insert—

prescribed

34Amendment of s 49 (What is a development approval, preliminary approval or development permit)

Section 49(6), definition decision notice, paragraph (c)—
omit, insert—

(c)a negotiated decision notice, other than a negotiated decision notice for a change application.

35Amendment of s 64 (Deemed approval of applications)

(1)Section 64(8)(c), from ‘standard’—
omit, insert—

conditions (the standard conditions) stated in an instrument made by the Minister for this section.

(2)Section 64—
insert—

(9)Sections 9 to 11 apply for making or amending the instrument mentioned in subsection (8)(c) as if the instrument were a State planning policy.

36Amendment of s 68 (Development assessment rules)

(1)Section 68(2)(e)—
omit.

(2)Section 68(2)(f) and (g)—
renumber as section 68(2)(e) and (f).

37Insertion of new s 73A

Chapter 3, part 5, division 1—
insert—

73ADevelopment permits for building work given by private certifiers

(1)This section applies to a development application for a development permit that—

(a)is for building work; and

(b)is made to a private certifier as assessment manager.

(2)Subsection (3) applies to the development application if any part of the building work requires impact assessment.

(3)A development permit given by the private certifier for the building work does not authorise the carrying out of the part requiring impact assessment, unless a relevant preliminary approval is in effect for the part.

(4)Subsection (5) applies to the development application if—

(a)any part of the building work must be assessed against, or having regard to, a matter that is not a building assessment provision; and

(b)none of the referral agencies are required to assess the application against, or having regard to, the matter.

(5)A development permit given by the private certifier for the building work does not authorise the carrying out of the part requiring assessment against, or having regard to, the matter, unless a relevant preliminary approval is in effect for the part.

(6)In this section—

relevant preliminary approval means a preliminary approval given under the old Act by an entity other than a private certifier.

38Amendment of s 74 (What this subdivision is about)

Section 74—
insert—

(2)This subdivision also applies to an approval of a change application, other than a change application for a minor change to a development approval.

(3)For subsection (2), sections 75 and 76 apply—

(a)as if a reference in section 75 to a development approval were a reference to an approval of a change application; and

(b)as if a reference in the sections to the assessment manager were a reference to the responsible entity; and

(c) as if a reference in section 76 to a development application were a reference to a change application; and

(d)as if the reference in section 76(3)(b) to section 63(2) and (3) were a reference to section 83(4); and

(e)with any other necessary changes.

39Amendment of s 75 (Making change representations)

(1)Section 75(1), ‘the approval’—
omit, insert—

the development approval

(2)Section 75(1)(b)—
omit, insert—

(b)if the development approval is a deemed approval—the standard conditions taken to be included in the deemed approval under section 64(8)(c).

40Amendment of s 76 (Deciding change representations)

Section 76(2), note—
omit.

41Amendment of s 79 (Requirements for change applications)

Section 79(1)(a)—
omit, insert—

(a)made in the approved form; and

42Amendment of s 81 (Assessing and deciding application for minor changes)

Section 81(2)(b)—
omit, insert—

(b)if the responsible entity is the assessment manager—any properly made submissions about the development application or another change application that was approved; and

43Amendment of s 82 (Assessing and deciding application for other changes)

Section 82—
insert—

(5)If a change application is made within 1 year after the development approval was given, any properly made submission for the application for the development approval is taken to be a properly made submission for the change application.

44Amendment of s 83 (Notice of decision)

(1)Section 83(1)—
insert—

(h)another person prescribed by regulation.

(2)Section 83—
insert—

(1A)Also, if a negotiated decision notice is not given in relation to the decision, the responsible entity, other than the P&E Court, must give a decision notice about the decision to each principal submitter within 5 business days after the first of the following events happens—

(a)the applicant gives the responsible entity a written notice stating that the applicant does not intend to make change representations under section 75;

(b)the applicant gives the responsible entity notice of the applicant’s appeal;

(c)the applicant’s appeal period for the change application ends.

(3)Section 83(6), ‘subsection (5)’—
omit, insert—

subsection (6)

(4)Section 83(1A) to (8)—
renumber as section 83(2) to (9).

45Amendment of s 103 (Call in notice)

Section 103(3)(b)(i), after ‘decide’—
insert—

, or reassess and re-decide,

46Amendment of s 104 (Effect of call in notice)

Section 104(1)(a) and (b), after ‘decision-maker’—
insert—

for the application

47Amendment of s 105 (Deciding called in application)

(1)Section 105(1)(a), after ‘decide’—
insert—

, or reassess and re-decide,

(2)Section 105(8), ‘83(2) and (3),’—
omit, insert—

83(3) and (4)

(3)Section 105(9)(b)(i), after ‘decide’—
insert—

, or reassess and re-decide,

48Amendment of s 112 (Regulation prescribing charges)

Section 112(2)(b)—
omit, insert—

(b) an amount equal to the prescribed amount at the start of the financial year, multiplied by the sum of the percentage increases for each financial quarter since the prescribed amount was last prescribed or amended.

49Amendment of s 115 (Provisions for participating local governments and distributor-retailers)

Section 115—
insert—

(8)Each party to a breakup agreement must publish a copy of the agreement on the party’s website.

50Amendment of s 230 (Notice of appeal)

(1)Section 230(3), ‘the registrar must,’—
omit, insert—

the registrar, must,

(2)Section 230—
insert—

(7)Despite any other Act or rules of court to the contrary, a copy of a notice of appeal may be given to the chief executive by emailing the copy to the chief executive at the email address stated on the department’s website for this purpose.

51Amendment of s 231 (Other appeals)

Section 231(4), definition non-appealable, paragraphs (b) and (c), ‘a tribunal’—
omit, insert—

any tribunal

52Amendment of s 249 (Conduct of tribunal proceedings)

Section 249(2), ‘if the parties agree’—
omit.

53Amendment of s 287 (Statutory instruments)

Section 287—
insert—

(7)In this section—

statutory instrument includes a designation of land for community infrastructure within the meaning of the old Act.

54Amendment of s 289 (References to the old Act or provisions of the old Act)

(1)Section 289, heading—
omit, insert—

289References to the old Act and the repealed Integrated Planning Act 1997

(2)Section 289(2)(a) and (b), after ‘old Act’—
insert—

or the repealed Integrated Planning Act 1997

(3)Section 289, table, column 1, entry for ‘a code, or other matter, against which assessable development must be assessed’, after ‘development’—
insert—

, or development requiring compliance assessment,

55Amendment of s 297 (Categorising development under designations)

Section 297(1)(a)—
omit, insert—

(a)either—

(i)a designation of land for community infrastructure under the old Act is in force when the old Act is repealed; or

(ii)a designation of land for community infrastructure is made under the old Act after the commencement; and

56Insertion of new s 307A

After section 307—
insert—

307A Application to convert infrastructure to trunk infrastructure

(1)This section applies to a development approval that is in force when the old Act is repealed.

(2)Despite section 139(2), the applicant for the development approval may make a conversion application at any time after the approval starts to have effect.

57Amendment of sch 1 (Appeals)

Schedule 1, table 2, item 2, paragraph (a), ‘for the development approval’—
omit, insert—

, or the change application,

58Amendment of sch 2 (Dictionary)

(1)Schedule 2, definitions required fee and standard conditions—
omit.

(2)Schedule 2—
insert—

prescribed tidal works means tidal works of a type prescribed under the Coastal Act, section 167(5)(d).

required fee means—

(a)for an application or referral to a local government—the fee fixed by resolution of the local government for the application or referral; or

(b)for an application or appeal to the P&E Court—the fee prescribed under the Supreme Court of Queensland Act 1991 , section 92(2)(a) for the application or appeal; or

(c)for an application or appeal to a tribunal—the fee prescribed by regulation for the application or appeal; or

(d)for an application or referral to another public sector entity or the Minister—the fee prescribed by regulation for the application or referral; or

(e)for an application to a chosen assessment manager—the fee negotiated between the applicant and the chosen assessment manager for the application.

standard conditions, of a deemed approval, see section 64(8)(c).

(3)Schedule 2, definition building work, paragraph (d)—
omit.

59Act amended

This part amends the Planning and Environment Court Act 2016 .

60Amendment of s 60 (Orders for costs)

Section 60(2), definition development assessment rules—
omit.

61Amendment of s 61 (Orders for costs for particular proceedings)

Section 61(2), ‘the owner’s consent requirement under the Planning Act’—
omit, insert—

a requirement under the Planning Act to obtain the consent of another person or entity to the cancellation

62Act amended

This part amends the Planning (Consequential) and Other Legislation Amendment Act 2016 .

Editor’s note—

Legislation ultimately amended—

• Building Act 1975

• Coastal Protection and Management Act 1995

63Replacement of s 39 (Replacement of s 6 (What is a building development application))

Section 39—
omit, insert—

39Replacement of s 6 (What is a building development application)

Section 6—
omit, insert—

6What is a building development application

(1)A building development application is—

(a)a development application for a development approval—

(i)if the local government is the assessment manager for the application—to the extent the application is for building work that, under the Planning Act, must be assessed against the building assessment provisions; and

Note—

For the functions of a local government in relation to building development applications, see section 51.

(ii)if a private certifier is the assessment manager for the application—for building work; or

(b)a change application, other than a minor change application, to change a development approval—

(i)if the development approval approves building work—in relation to the building work; or

(ii)otherwise—to approve building work.

(2)However, if a local government is the responsible entity for a change application, the application is a building development application only to the extent the building work mentioned in subsection (1)(b)(i) or (ii) must, under the Planning Act, be assessed against the building assessment provisions.

(3)In this section—

minor change application means a change application for a minor change to a development approval, as defined in the Planning Act.

64Amendment of s 49 (Amendment of s 25 (General requirements for supporting documents))

Section 49(2)—
omit.

65Replacement of s 75 (Amendment of s 83 (General restrictions on granting building development approval))

Section 75—
omit, insert—

75Amendment of s 83 (General restrictions on granting building development approval)

(1)Section 83(1)(a) and example, ‘and SPA compliance permits’—
omit.

(2)Section 83(1)(b)—
omit, insert—

(b)if the building development application is for a development permit that, under the Planning Act, section 73A, does not authorise the carrying out of a part of the building work unless a relevant preliminary approval is in effect for the part—

(i)until the relevant preliminary approval is in effect for the part; or

(ii)until a development permit given by an entity other than a private certifier is in effect for the part; and

(3)Section 83(1)(d), from ‘has jurisdiction’ to ‘the building work—’—
omit, insert—

must assess the building work against, or having regard to, a matter relating to the building work—

(4)Section 83(2) to (4)—
omit, insert—

(2)Subsection (3) applies if the private certifier receives the application before a following application or request is decided—

(a)if subsection (1)(a) applies to the application—a development application for each development permit mentioned in the subsection;

(b)if subsection (1)(b) applies to the application—a development application for a preliminary approval or development permit mentioned in the subsection;

(c)if subsection (1)(e) applies to the application—a request under the Plumbing and Drainage Act 2002 for a compliance permit mentioned in the subsection.

(3)For the development assessment process under the Planning Act, the building development application is taken not to have been received by the private certifier until the day the last or only application or request mentioned in subsection (2)(a), (b) or (c) to be decided is decided.

(4)This section does not limit part 4.

(5)In this section—

referral agency’s response period, for a building development application, means the period stated in the development assessment rules under the Planning Act for complying with section 56(4) of that Act for the application, including any extension of that period under the rules.

relevant preliminary approval see the Planning Act, section 73A(6).

66Amendment of s 113 (Amendment of sch 2 (Dictionary))

Section 113—
insert—

(6)Schedule 2, definition referral agency’s response, ‘schedule 3’—
omit, insert—

section 56(4)

67Amendment of s 153 (Amendment of s 167 (Regulation-making power))

Section 153(5)—
omit, insert—

(5)Section 167(6)—
omit, insert—

(5)A regulation may prescribe—

(a)assessment benchmarks for the Planning Act for the assessment of assessable development under that Act, other than an assessment carried out by the planning chief executive; and

(b)the requirements that operational work that is tidal works, or work in a coastal management district, must comply with to be categorised as accepted development under that Act; and

(c)for section 19(1)(b) of that Act, the extent to which a local government may apply a planning scheme as a categorising instrument under that Act in relation to tidal works in the tidal area for its local government area, as defined under that Act; and

(d)for schedule 2 of that Act, definition prescribed tidal works, the type of tidal works that are prescribed tidal works.

68Act amended

This part amends the Sustainable Planning Act 2009 .

69Amendment of s 120 (When planning scheme, temporary local planning instrument and amendments have effect)

Section 120—
insert—

(1A)Subsection (1B) applies if—

(a)a local government resolves at a public meeting—

(i)to give a temporary local planning instrument to the Minister; and

(ii)to ask the Minister to approve the instrument taking effect on and from the day the resolution was made; and

(b)the Minister, by notice to the local government, approves the request.

(1B)The temporary local planning instrument has effect on and from the day the local government resolution was made.

70Amendment of s 241 (Preliminary approvals)

Section 241(2), note—
omit, insert—

Note—

See also section 245A.

71Amendment of s 243 (Development permits)

Section 243—
insert—

Note—

See also section 245A.

72Insertion of new s 245A

Chapter 6, part 1, division 3, subdivision 4—
insert—

245ADevelopment permits for building work given by private certifiers

(1)This section applies to a development application for a development permit that—

(a)is for building work; and

(b)is made to a private certifier as assessment manager.

(2)Subsection (3) applies to the development application if any part of the building work requires impact assessment.

(3)A development permit given by the private certifier for the building work does not authorise the carrying out of the part requiring impact assessment, unless a relevant preliminary approval is in effect for the part.

(4)Subsection (5) applies to the development application if—

(a)any part of the building work must be assessed against a matter that is not a building assessment provision; and

(b)the matter is not within the jurisdiction of a referral agency.

(5)A development permit given by the private certifier for the building work does not authorise the carrying out of the part requiring assessment against the matter, unless a relevant preliminary approval is in effect for the part.

(6)This section applies despite sections 241(2) and 243.

(7)In this section—

relevant preliminary approval means a preliminary approval given by an entity other than a private certifier.

73Amendment of s 456 (Court may make declarations and orders)

Section 456—
insert—

(10)Despite any other Act or rules of court to the contrary, notice of a proceeding under this section may be given to the chief executive by emailing the notice to the chief executive at the email address stated on the department’s website for this purpose.

74Replacement of s 457 (Costs)

Section 457—
omit, insert—

457Costs generally

(1)Subject to sections 457A and 457B, each party to a proceeding must bear the party’s own costs for the proceeding.

(2)If the court makes an order for costs under section 457A or 457B, the amount of the costs is to be decided under the appropriate procedure and scale of costs for proceedings in the District Court.

(3)An order for costs may be enforced as if the order were an order of the District Court.

457A Orders for costs in particular circumstances

The court may make an order for costs as the court considers appropriate if a party has incurred costs in 1 or more of the following circumstances—

(a)the court considers the proceeding was started or conducted primarily for an improper purpose, including, for example, to delay or obstruct;

Example—

A party (the first party) with similar commercial interests to another party started a proceeding. The court considers the proceeding was started primarily to advance the first party’s commercial interests by delaying or obstructing the other party’s development approval from taking effect.

(b)the court considers the proceeding to be frivolous or vexatious;

Example—

The court considers a proceeding was started or conducted without reasonable prospects of success.

(c)a party has not been given reasonable notice of intention to apply for an adjournment of the proceeding;

(d)a party is required to apply for an adjournment because of the conduct of another party;

(e)without limiting paragraph (d), a party has introduced, or sought to introduce, new material;

(f)a party has defaulted in the court’s procedural requirements;

(g)the court considers an applicant for a development application did not give all the information reasonably required to assess the development application;

(h)the court considers an assessment manager, referral agency or local government should have taken an active part in a proceeding and did not do so;

(i)an applicant, submitter, assessment manager, referral agency or local government does not properly discharge its responsibilities in the proceeding.

457B Orders for costs for particular proceedings

(1)If the court makes an enforcement order or interim enforcement order against a person, the court may award costs against the person.

(2)If the court declares that an owner wrongly sought the cancellation of a development approval in contravention of a requirement to obtain the consent of another person or entity to the cancellation, the court must award costs against the owner.

(3)If the court allows an assessment manager to withdraw from an appeal, the court must not award costs against the assessment manager.

75Amendment of s 482 (Notice of appeal to other parties—development applications and approvals)

Section 482—
insert—

(4)Despite any other Act or rules of court to the contrary, the notice may be given to the chief executive by emailing the notice to the chief executive at the email address stated on the department’s website for this purpose.

76Amendment of s 491B (Power of ADR registrar)

Section 491B(3), ‘section 457(1), (4) and (9) to (14)’—
omit, insert—

sections 457A and 457B

77Amendment of s 575 (Carrying out development without compliance permit)

Section 575(1), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

78Amendment of s 578 (Carrying out assessable development without permit)

Section 578(1), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

79Amendment of s 580 (Compliance with development approval)

Section 580(1), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

80Amendment of s 581 (Offence to carry out prohibited development)

Section 581(1), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

81Amendment of s 582 (Offences about the use of premises)

Section 582, penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

82Amendment of s 585 (Coastal emergency exemption for operational work that is tidal works)

Section 585(5), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

83Amendment of s 586 (Exemption for building work on Queensland heritage place or local heritage place)

Section 586(5), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

84Amendment of s 587 (False or misleading document or declaration)

Section 587(1), (2) and (3), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

85Amendment of s 594 (Offences relating to enforcement notices)

Section 594(1) and (2), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

86Amendment of s 595 (Processing application or request required by enforcement notice or show cause notice)

Section 595, penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

87Amendment of s 599 (Magistrates Court may make orders)

Section 599(5), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

88Amendment of s 921 (Compliance with master plans)

Section 921(4) and (5), penalty, ‘1665 penalty units’—
omit, insert—

4500 penalty units

89Insertion of new ch 10, pt 15

Chapter 10—
insert—

Part 15 Transitional provision for Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2016

999Costs for existing court proceedings

(1)This section applies to—

(a)a proceeding in the court (an originating proceeding) that has been brought before the commencement; or

(b)an interlocutory proceeding relating to an originating proceeding that is brought after the commencement.

(2)Section 457 as in force immediately before the commencement continues to apply to the proceeding.

(3)Sections 457A and 457B do not apply to the proceeding.

90Amendment of sch 3 (Dictionary)

Schedule 3—
insert—

costs, for chapter 7, part 1, division 7—

(a)for a proceeding of the following type, includes a party’s costs to investigate, or gather evidence for, the proceeding that the court decides the party reasonably incurred—

(i)a declaratory proceeding about the lawfulness of land use or development, including any order made by the court about the declaration;

(ii)an appeal against the giving of an enforcement notice;

(iii)a proceeding for an enforcement order or interim enforcement order; and

(b)for an appeal against the giving of an enforcement notice, includes costs relating to investigations or gathering of evidence for the giving of the enforcement notice.

© State of Queensland 2016