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TASMANIA
__________
LAND USE PLANNING AND APPROVALS
(MISCELLANEOUS AMENDMENTS) BILL 2009
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - LAND USE PLANNING AND APPROVALS ACT 1993
AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 53 amended (When does a permit take effect?)
6. Section 61 amended (Appeals against planning decisions)
7. Section 62 amended (Determination of appeals)
8. Section 63 amended (Obstruction of sealed schemes)
9. Section 64 amended (Civil enforcement proceedings)
10. Part 4, Divisions 4A and 4B inserted
Division 4A - Enforcement by planning authorities
65A. Infringement notices
65B. Notice of intention to issue an enforcement notice to
be issued before enforcement notice is issued
65C. Enforcement notices
65D. Requirements of enforcement notices
65E. Offences and penalties in relation to enforcement
notices
[Bill 100]-XI
65F. Notice of intention to cancel a permit to be issued
before permit cancelled
65G. Cancellation of permits
65H. Issue of notices where applications made to Tribunal
Division 4B - Authorised officers
65I. Authorised officers
65J. Powers of authorised officers
65K. Entry and search warrants
65L. Additional requirements in respect of authorised
officer in dealings with disadvantaged persons
65M. Obstruction, &c., of authorised officers and others
11. Section 85A inserted
85A. Immunity from liability
PART 3 - LOCAL GOVERNMENT (GENERAL) REGULATIONS 2005
AMENDED
12. Principal Regulations
13. Schedule 7 amended (Questions)
PART 4 - MISCELLANEOUS AND REPEAL
14. Amendment of regulations
15. Repeal of Act
2
LAND USE PLANNING AND APPROVALS
(MISCELLANEOUS AMENDMENTS) BILL 2009
(Brought in by the Minister for Planning, the Honourable
David Edward Llewellyn)
A BILL FOR
An Act to amend the Land Use Planning and Approvals Act
1993
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Land Use Planning
and Approvals (Miscellaneous Amendments) Act
2009.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 100] 3
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s. 3 Part 2 - Land Use Planning and Approvals Act 1993 Amended
PART 2 - LAND USE PLANNING AND APPROVALS
ACT 1993 AMENDED
3. Principal Act
In this Part, the Land Use Planning and
Approvals Act 1993* is referred to as the
Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
inserting after the definition of "Appeal
Tribunal" the following definition:
"authorised officer" means a person who,
under section 65I, is, or is authorised to
be, an authorised officer;
5. Section 53 amended (When does a permit take
effect?)
Section 53(7) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b) "permit."
and substituting "permit; or";
(b) by inserting the following paragraph after
paragraph (b):
*No. 70 of 1993
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(c) it is cancelled under section 65G.
6. Section 61 amended (Appeals against planning
decisions)
Section 61 of the Principal Act is amended by
inserting after subsection (6) the following
subsections:
(7) A person on whom an enforcement
notice is served under section 65C may,
within 14 days, appeal to the Appeal
Tribunal against the decision of the
authorised officer who issued the notice.
(8) If a planning authority cancels under
section 65G a permit in relation to land,
an owner or occupier of the land may
appeal to the Appeal Tribunal against the
decision of the planning authority within
14 days after notice of the cancellation of
the permit is, under that section, served
on, or given to, the owner or occupier.
7. Section 62 amended (Determination of appeals)
Section 62(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (d)(ii)
"Appeal Tribunal." and substituting
"Appeal Tribunal; or";
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(b) by inserting the following paragraphs
after paragraph (d):
(e) in the case of an appeal against a
decision to issue an enforcement
notice under section 65C, declare
that the notice is to be taken to
have never been issued; or
(f) in the case of an appeal against a
decision to cancel a permit under
section 65G, declare that the
permit is to be taken to have
never been cancelled.
8. Section 63 amended (Obstruction of sealed schemes)
Section 63 of the Principal Act is amended by
omitting subsection (5) and substituting the
following subsections:
(5) If a person is convicted of an offence
against subsection (3), the court may, in
addition to any fine imposed under
subsection (4), order that the person pay
to the planning authority the reasonable
cost incurred by the authority
in investigating the offence or
prosecuting the offence, or both.
(5A) If a person is convicted of an offence
against subsection (3), the court may
order that the offender is required to
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carry out, within the period specified in
the order, work specified in the order.
(5B) The work that may be specified in an
order under subsection (5A) is work that
will ensure that a use or development
carried out by the person is in accordance
with the relevant planning scheme,
special planning order, permit, special
permit or determination.
(5C) If a court makes an order of a kind
referred to in subsection (5A) and the
offender to whom the order relates does
not, within the period specified in the
order, carry out the work specified in the
order, the relevant planning authority
may carry out the work.
(5D) If a planning authority carries out work
under subsection (5C), the planning
authority may recover the costs of that
work, as a debt, from the offender.
9. Section 64 amended (Civil enforcement
proceedings)
Section 64 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "the
Commission, a planning authority or a
person" and substituting "a person, other
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than the Commission or a planning
authority,";
(b) by inserting the following subsections
after subsection (1):
(1A) A person may only make an
application under subsection (1)
in relation to a contravention of,
or a failure to comply with, a
provision of this Part by a person
other than the planning authority,
if -
(a) the applicant has given
notice in writing of the
contravention or failure to
the planning authority in
whose municipal area is
situated the land to which
the contravention or
failure relates; and
(b) within a reasonable time
or, at the latest, within
120 days of the planning
authority being given the
notice referred to in
paragraph (a) -
(i) charges in relation
to the
contravention or
failure to comply
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have not been laid;
or
(ii) an authorised
officer has not
issued an
infringement
notice under
section 65A, or an
enforcement
notice under
section 65C, in
relation to the
contravention or
failure to comply.
(1B) A person may only make an
application under subsection (1)
in relation to a contravention of,
or a failure to comply with,
section 63A by a planning
authority, if -
(a) the person has given to
the planning authority
notice in writing that
specifies -
(i) the area of land to
which the
contravention or
failure to comply
relates; and
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(ii) how a planning
scheme or special
planning order in
relation to the land
is not being
complied with by
an owner or
occupier of the
land; and
(iii) that the person is
of the opinion that
the planning
authority has
failed to take all
reasonable steps to
ensure that the
planning scheme
or special order is
complied with in
relation to the
land; and
(b) within a reasonable time
or, at the latest, within
120 days of the notice
referred to in
paragraph (a) being given
to the planning authority -
(i) charges have not
been laid against
the owner or
occupier of the
land in relation to
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the owner or
occupier's failure
to comply with the
planning scheme
or special
planning order in
relation to the
land; or
(ii) an authorised
officer has not
issued an
infringement
notice under
section 65A, or an
enforcement
notice under
section 65C, in
relation to the
failure of the
owner or occupier
to comply with the
planning scheme
or special
planning order.
(c) by omitting subsections (2A) and (2B)
and substituting the following
subsections:
(2A) If an application under this
section is made by a person in
relation to land, the planning
authority in whose municipal area
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the land is situated is taken to be
a party to the application.
(2B) At any time after receiving an
application made under this
section, the Appeal Tribunal may
direct that the planning authority,
in whose municipal area is
situated the land to which the
application relates, be made an
applicant in the application.
(d) by omitting subsection (2C).
10. Part 4, Divisions 4A and 4B inserted
After section 65 of the Principal Act, the
following Divisions are inserted in Part 4:
Division 4A - Enforcement by planning authorities
65A. Infringement notices
(1) In this section -
"infringement offence" means an
offence against this Act or the
regulations that is prescribed by
the regulations to be an
infringement offence.
(2) An authorised officer may issue an
infringement notice and serve it on a
person if the officer reasonably believes
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that the person has committed an
infringement offence.
(3) An infringement notice may not be
served on an individual who has not
attained the age of 16 years.
(4) An infringement notice -
(a) is to be in accordance with
section 14 of the Monetary
Penalties Enforcement Act 2005;
and
(b) is not to relate to more than 4
offences.
(5) The regulations -
(a) may prescribe the penalty
applicable to each infringement
offence that is payable under an
infringement notice; and
(b) may prescribe different penalties
for bodies corporate and
individuals.
(6) In the application of the Monetary
Penalties Enforcement Act 2005 to an
infringement notice issued and served
under this section -
(a) the authorised officer who issued
and served the infringement
notice is taken to be a public
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sector body within the meaning
of that Act; and
(b) a penalty prescribed under
subsection (5) in respect of an
infringement offence is taken to
be the prescribed penalty
applicable to that offence for the
purposes of section 14(a)(ii) of
that Act.
65B. Notice of intention to issue an enforcement
notice to be issued before enforcement notice
is issued
(1) An authorised officer may issue a notice
of intention to issue an enforcement
notice in relation to an offence and serve
it on a person.
(2) A notice of intention to issue an
enforcement notice may only be served
under subsection (1) on a person by an
authorised officer if the officer
reasonably believes the person has
committed, is committing, or is about to
commit, an offence against
section 57(4A), section 63(3) or
section 64(7).
(3) The planning authority must notify in
writing an owner of land, in relation to
which a notice of intention to issue an
enforcement notice is served under
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subsection (1), if the person on whom the
notice is served is not the owner of the
land.
(4) A notice of intention to issue an
enforcement notice in relation to an
offence must -
(a) be in writing; and
(b) specify the provision of this Act
to which the offence relates; and
(c) contain particulars of the offence
that give adequate information as
to the nature of the offence; and
(d) specify that it is proposed to issue
an enforcement notice in relation
to the offence; and
(e) specify that representations may
be made in relation to the offence
to an authorised officer specified
in the notice; and
(f) specify that the representations
may only be made in writing,
delivered to an address specified
in the notice, within the period
specified in the notice.
(5) The last day of a period specified under
subsection (4)(f) in a notice of intention
to issue an enforcement notice must not
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be sooner than 14 business days after the
notice is served.
(6) A person on whom a notice of intention
to issue an enforcement notice is served
may, within the period specified under
subsection (4)(f) in the notice, make
representations in writing to an address
specified in the notice.
(7) A notice of intention to issue an
enforcement notice in relation to a use or
development of land may, as an
alternative to being served in accordance
with section 84, be served by affixing the
notice to a building or structure on the
land in a place where a person entering
the land would be likely to see the notice.
65C. Enforcement notices
(1) An authorised officer may issue an
enforcement notice in relation to an
offence and serve it on a person.
(2) An authorised officer may only issue and
serve on a person an enforcement notice
if the officer reasonably believes the
person has committed, is committing, or
is about to commit, an offence against
section 57(4A), section 63(3) or
section 64(7).
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(3) The planning authority must notify in
writing an owner of land, in relation to
which an enforcement notice is served
under subsection (1), if the person on
whom the enforcement notice is served is
not the owner of the land.
(4) Subject to subsection (5), an enforcement
notice may only be issued and served on
a person if -
(a) a notice of intention to issue an
enforcement notice has been
issued and served on the person
under section 65B; and
(b) the enforcement notice is issued
and served after the end of the
last day of the period specified
under section 65B(4)(f) in the
notice of intention to issue an
enforcement notice; and
(c) the authorised officer has
considered any representations
made under section 65B(6) by the
person on whom the notice of
intention to issue an enforcement
notice was served.
(5) Subsection (4) does not apply in relation
to an enforcement notice if the authorised
officer issuing the notice reasonably
believes that it is necessary that the
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notice be issued and served without
delay -
(a) so as to prevent the imminent
commission of, or the
continuation of, the offence to
which the notice relates; and
(b) because, were the offence to be
committed or to continue to be
committed -
(i) damage might be caused
to the property of another
person; or
(ii) actions could not be taken
easily or without
significant expense to
restore land or a building
or other structure on land
to the condition it was in
before the offence was
committed.
(6) An enforcement notice issued and served
on a person in respect of an offence
must -
(a) be in writing; and
(b) specify the provision of this Act
to which the offence relates; and
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(c) contain particulars of the offence
that give adequate information as
to the nature of the offence; and
(d) inform the person of the person's
rights under this Act to appeal
against the notice; and
(e) specify the requirements that are
imposed on the person under
section 65D.
(7) An enforcement notice that imposes
under section 65D a requirement on a
person that the person stop carrying out a
use or development on land may, as an
alternative to being served in accordance
with section 84, be served by affixing the
notice to a building or structure on the
land in a place where a person entering
the land would be likely to see the notice.
(8) An authorised officer may, by notice
served on a person on whom an
enforcement notice has been served,
withdraw the enforcement notice.
(9) If an authorised officer withdraws under
subsection (8) an enforcement notice in
relation to land -
(a) a person may not be prosecuted
for having failed to comply with
the enforcement notice; and
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(b) the authorised officer is to give
notice in writing of the
withdrawal of the enforcement
notice to any owner of the land
who was notified under
subsection (3) in relation to the
enforcement notice.
65D. Requirements of enforcement notices
(1) An enforcement notice that is served on a
person under section 65C may require
the person to do any one or more of the
following:
(a) not to commit, or to cease to
commit, the offence to which the
notice relates;
(b) to take the action, specified in the
notice, to remedy the
consequences of the commission
of the offence;
(c) to take all reasonable steps to
ensure that a permit in relation to
the land to which the notice
relates is granted under this Act.
(2) Without limiting the generality of the
requirements that, under subsection (1),
may be imposed on a person by an
enforcement notice, an enforcement
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notice may contain one or more of the
following requirements:
(a) a requirement that the person stop
carrying out development of the
kind specified in the notice;
(b) a requirement that the person stop
carrying out a use of land that is
specified in the notice;
(c) a requirement that the person
demolish or remove a building or
other structure, or any works
carried out, on land owned or
occupied by the person;
(d) a requirement that the person
restore, so far as reasonably
practicable, land, or a building or
structure on land, to the condition
it was in before development was
carried out by the person;
(e) a requirement that the person do,
or not do, an act, so as to ensure
that development carried out by
the person on land complies with
a State Policy, permit, special
permit, planning scheme, or
special planning order, that
applies to the land.
(3) If an enforcement notice served on a
person under section 65C requires the
person to ensure that work is carried out,
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the notice must specify the details of the
work.
(4) If an enforcement notice served on a
person under section 65C requires the
person -
(a) to refrain from doing an act, the
notice must also specify the
period for which the requirement
applies or that the requirement
applies until the person is
otherwise notified by an
authorised officer; or
(b) to do an act, the notice must
specify the period within which
the act is required to be done.
(5) An enforcement notice issued under
section 65C may not contain a
requirement in respect of a matter in
relation to which, in accordance with
section 44(1)(a), (b) or (e) or 44(2)(a),
(b) or (e) of the Environmental
Management and Pollution Control Act
1994, an environment protection notice
may be issued.
(6) An enforcement notice may not be issued
under section 65C in relation to land if
the notice contains a requirement that is
inconsistent with a requirement of an
environment protection notice, issued
under section 44 of the Environmental
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Management and Pollution Control Act
1994, that applies in relation to the land.
(7) An authorised officer who issues an
enforcement notice in relation to land, to
which an environment protection notice
issued under section 44 of the
Environmental Management and
Pollution Control Act 1994 applies, must
notify the Director, within the meaning
of that Act, that the enforcement notice
has been issued.
65E. Offences and penalties in relation to
enforcement notices
(1) A person must not, without reasonable
excuse, fail to comply with a requirement
imposed on the person by an
enforcement notice served on the person
under section 65C.
Penalty: Fine not exceeding 500 penalty
units.
(2) If a person is convicted of an offence
against subsection (1), the court may, in
addition to any fine imposed under that
subsection, order that the person pay to
the planning authority the reasonable cost
incurred by the authority in investigating
or prosecuting (or both) either or both of
the following offences:
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(a) the offence against
subsection (1);
(b) the suspected offence in relation
to which the enforcement notice
was served.
(3) If a person is convicted of an offence
against subsection (1), the court may
order that the offender is required to
carry out, within the period specified in
the order, work specified in the order.
(4) The work that may be specified in an
order under subsection (3) in relation to
an offence is -
(a) work that the enforcement notice
to which the offence relates
required to be carried out; or
(b) work that is required to be carried
out, because a requirement
specified in the enforcement
notice to which the offence
relates was not complied with -
so as to ensure that a use or development
is in accordance with the relevant
planning scheme, special planning order,
permit, special permit or determination.
(5) If a court makes an order under
subsection (3), and the offender to whom
the order relates does not, within the time
specified in the order, carry out the work
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specified in the order, the relevant
planning authority may carry out the
work.
(6) If a planning authority carries out work
under subsection (5), the planning
authority may recover the costs of that
work, as a debt, from the offender.
(7) A person, other than -
(a) an authorised officer; or
(b) the person on whom an
enforcement notice has been
served by affixing the notice to
land -
must not, without lawful authority,
damage, deface or remove an
enforcement notice that has been affixed
to land.
Penalty: Fine not exceeding 500 penalty
units.
65F. Notice of intention to cancel a permit to be
issued before permit cancelled
(1) If an authorised officer considers that
there are grounds on which a permit in
force in relation to land may be cancelled
under section 65G, the authorised officer
may issue a notice of intention to cancel
a permit and serve it -
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(a) on an owner of the land; or
(b) on an occupier of the land and the
owner of the land, if the grounds
relate to the use or development
of the land by the occupier.
(2) A notice of intention to cancel a permit
must -
(a) be in writing; and
(b) specify that the planning
authority is proposing to cancel
the permit to which the notice
relates; and
(c) specify on which of the grounds,
mentioned in section 65G, it is
proposed to cancel the permit;
and
(d) contain particulars of the grounds
on which it is proposed to cancel
the permit, which particulars give
adeqaute information as to why it
is proposed to cancel the permit;
and
(e) specify that representations may
be made, to an authorised officer
specified in the notice, in relation
to the proposal to cancel the
permit; and
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(f) specify that the representations
may only be made in writing,
delivered to an address specified
in the notice, within the period
specified in the notice.
(3) The last day of a period specified under
subsection (2)(f) in a notice of intention
to cancel a permit must not be sooner
than 14 business days after the notice is
served.
(4) A person on whom a notice of intention
to cancel a permit has been served may,
within the period specified under
subsection (2)(f) in the notice, make
representations in writing to an address
specified in the notice.
(5) A notice of intention to cancel a permit
in relation to a use or development of
land may, as an alternative to being
served in accordance with section 84, be
served by affixing the notice to a
building or structure on the land in a
place where a person entering the land
would be likely to see the notice.
65G. Cancellation of permits
(1) A planning authority may cancel a permit
in relation to land in the municipal area
of the authority by serving a notice in
writing -
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(a) on an owner of the land; or
(b) on the occupier of the land, if the
grounds on which the permit is
cancelled relate to the use or
development of the land by the
occupier.
(2) A permit in relation to land may only be
cancelled under subsection (1) on
grounds referred to in this section.
(3) A permit in relation to land may only be
cancelled under subsection (1) if -
(a) an enforcement notice has been
served under section 65C on the
owner or occupier of the land on
whom the notice under
subsection (1) is served, and the
enforcement notice has not been
withdrawn under section 65C(8);
and
(b) the owner or occupier on whom
the enforcement notice was
served has failed to comply with,
or has contravened, a requirement
specified in the enforcement
notice.
(4) If a notice is served under subsection (1)
on a person other than an owner of the
land to which the notice relates, the
planning authority must notify the owner
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in writing of the cancellation of the
permit.
(5) A planning authority has grounds for
cancelling a permit in relation to land if
the authority is reasonably of the opinion
that -
(a) the permit would not have been
granted; or
(b) different conditions to the
conditions, if any, it imposed on
the permit, would have been
imposed -
if the applicant had not made a material
misstatement of fact, or concealed
material facts, in relation to the
application for the permit.
(6) A planning authority has grounds for
cancelling a permit in relation to land if
the authority is reasonably of the opinion
that an owner or occupier of the land has
substantially failed to comply with, or
has contravened, a condition of the
permit.
(7) A planning authority has grounds for
cancelling a permit in relation to land if
the grounds are prescribed in regulations
made for the purposes of this subsection.
(8) A planning authority may only cancel a
permit in relation to land if -
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(a) a notice of intention to cancel a
permit has, under section 65F,
been served on -
(i) the owner of the land; or
(ii) if a person other than the
owner of the land is using
or developing the land,
both that person and the
owner of the land; and
(b) the permit is cancelled after the
end of the last day of the period
specified under section 65F(2)(f)
in the notice of intention to cancel
a permit; and
(c) the authorised officer has
considered any representations
made under section 65F(4) by the
person or persons on whom the
notice of intention to cancel a
permit was served.
65H. Issue of notices where applications made to
Tribunal
(1) If an application is made under
section 64 in relation to -
(a) a contravention of, or a failure to
comply with, a provision of this
Part; or
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(b) a likely contravention of, or a
likely failure to comply with, a
provision of this Part -
a notice under this Division may not be
issued and served on a person in relation
to the contravention or failure, or the
likely contravention or failure, until the
application is determined by the Appeal
Tribunal.
(2) If -
(a) an application is made under
section 64 in relation to a
contravention of, or a failure to
comply with, a provision of this
Part; and
(b) the Appeal Tribunal makes an
order in relation to the
contravention or failure -
a notice under this Division may not be
issued and served on a person in relation
to the contravention or failure unless a
person contravenes, or fails to comply
with, the order.
(3) If the Appeal Tribunal has determined,
on an application under section 64, that
an alleged contravention of, or an alleged
failure to comply with, a provision of this
Part did not occur, a notice under this
Division may not be issued and served on
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a person in relation to the contravention
or failure to comply.
(4) If an appeal is made to the Appeal
Tribunal under section 61 in relation to a
decision to issue to a person an
enforcement notice under section 65C in
relation to -
(a) a contravention of, or a failure to
comply with, a provision of this
Part; or
(b) a likely contravention of, or a
likely failure to comply with, a
provision of this Part -
a notice under this Division may not be
issued and served on the person in
relation to the contravention or failure to
comply until the appeal is determined.
Division 4B - Authorised officers
65I. Authorised officers
(1) In this section -
"general manager of a council"
means a person who is appointed
under section 61 of the Local
Government Act 1993 to be the
general manager of a council.
(2) A general manager of a council may
authorise a person to be, for the purposes
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of this Act, an authorised officer in
respect of the municipal area of the
council.
(3) A general manager of a council is, in
respect of the municipal area of the
council, an authorised officer for the
purposes of this Act.
(4) A police officer is an authorised officer
for the purposes of the Act.
(5) An authorised officer in respect of the
municipal area of a council may only
exercise a power of an authorised officer
under this Act for the purposes of the
administration or enforcement of this Act
in relation to land within the municipal
area.
65J. Powers of authorised officers
(1) An authorised officer may, for any
reasonable purpose connected with the
administration or enforcement of this
Act, enter and inspect any place if -
(a) the occupier of the place consents
to the officer's entry; or
(b) the entry is made under a warrant;
or
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(c) the place is a public place and the
entry occurs when the place is
open to the public.
(2) An authorised officer may, for any
reasonable purpose connected with the
administration or enforcement of this
Act -
(a) take photographs, films or audio,
video or other recordings; or
(b) examine or test any air or thing
from a place or require the thing
to be examined or tested or
provided to the officer for
examination or testing.
(3) An authorised officer may require a
person to provide to the officer a
document, or a copy of a document, in
the possession of the person, if the
document is reasonably required for a
purpose connected with the
administration or enforcement of this
Act.
(4) The documents that a person may be
required under subsection (3) to produce
include a document in writing that
reproduces in a comprehensible form
information in the possession of the
person that is stored by an electronic
device, object or process.
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(5) An authorised officer may examine, copy
or take extracts from a document
produced under subsection (3) or found
in the conduct of a search under this Act.
(6) An authorised officer may require a
person to provide information to the
officer that is reasonably required for a
purpose connected with the
administration or enforcement of this
Act.
(7) An authorised officer may require a
person to answer questions in relation to
a matter.
(8) An authorised officer may only require a
person to answer questions in relation to
a matter if -
(a) the questions relate to a matter in
respect of which information is
reasonably required for a purpose
connected with the administration
or enforcement of this Act; and
(b) the officer reasonably suspects
the person may have the
information.
(9) An authorised officer may require a
person who the officer reasonably
suspects has committed, is committing,
or is about to commit, an offence against
this Act, to -
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(a) state the person's full name, date
of birth and usual place of
residence; and
(b) produce evidence of the person's
identity.
65K. Entry and search warrants
(1) A magistrate may issue a warrant
authorising an authorised officer to enter
land, and any premises on land, that is
land specified in the warrant.
(2) A warrant issued under subsection (1)
may authorise an authorised officer who
is a police officer to enter land, and any
premises on land, with, if necessary,
reasonable force.
(3) A magistrate may issue a warrant under
subsection (1) in relation to land, and any
premises on land, if the magistrate is
satisfied, on the application of an
authorised officer, that there are
reasonable grounds to believe -
(a) that a contravention of this Act
has been, is being, or is about to
be, committed on the land or the
premises; or
(b) that an object may be found, in or
on the land or the premises, that
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constitutes evidence of a
contravention of this Act.
(4) The grounds for an application for a
warrant must be verified by affidavit.
(5) A warrant issued under subsection (1)
must specify -
(a) the offence to which the warrant
relates; and
(b) a description of the land to which
the warrant relates; and
(c) the kinds of evidential material
that are to be searched for under
the warrant; and
(d) the name of the authorised officer
or officers who is or are to be
responsible for executing the
warrant; and
(e) the period for which the warrant
remains in force, which is not to
be more than 28 days from the
date on which the warrant is
issued; and
(f) whether the warrant may be
executed at any time or during
particular hours; and
(g) that the warrant authorises the
seizure of a thing that is referred
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to in paragraph (c) or any other
thing, that is found on the land, or
premises on the land, in the
course of the search and that the
person executing the warrant
believes on reasonable grounds to
be -
(i) evidential material in
relation to an offence to
which the warrant relates;
or
(ii) evidential material in
relation to another
offence -
if the officer believes on
reasonable grounds that seizure of
the thing is necessary to prevent
its concealment, loss or
destruction or its use in
committing an offence.
(6) An application for the issue of a warrant
may be made either personally or by
telephone.
(7) If an application for a warrant is made by
telephone -
(a) the applicant must inform the
magistrate of the applicant's
name and that the applicant is an
authorised officer; and
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(b) the applicant must inform the
magistrate of the grounds on
which the applicant seeks the
warrant; and
(c) if it appears to the magistrate
from the information given by the
applicant that there are proper
grounds for the issue of a
warrant, the magistrate must
inform the applicant of the facts
on which the applicant relies for
the issue of a warrant, and must
not proceed to issue the warrant
unless the applicant undertakes to
make an affidavit verifying those
facts; and
(d) if the applicant gives the
undertaking referred to in
paragraph (c), the magistrate may
then make out and sign a warrant,
noting on the warrant the facts on
which the magistrate relies as
grounds for issue of the warrant;
and
(e) the warrant will be taken to have
been issued, and will come into
force, when signed by the
magistrate; and
(f) the magistrate must inform the
applicant of the terms of the
warrant; and
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(g) the applicant must, as soon as
practicable after the issue of the
warrant, forward to the magistrate
an affidavit verifying the facts
referred to in paragraph (c).
(8) In executing a warrant -
(a) an authorised officer specified in
the warrant may obtain the
assistance that is necessary and
reasonable in the circumstances;
and
(b) an authorised officer specified in
the warrant may, if the officer is a
police officer, use the force
against persons and things that is
necessary and reasonable in the
circumstances.
(9) An authorised officer must, as soon as
practicable after executing a warrant -
(a) prepare a notice in the prescribed
form containing -
(i) the officer's name and a
statement that he or she is
an authorised officer; and
(ii) the name of the magistrate
who issued the warrant
and the date and time of
its issue; and
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(iii) a description of the place
to which the warrant
relates and of the
authority conferred by the
warrant; and
(b) give the notice to the occupier or
person apparently in charge of the
land to which the warrant relates
or leave it for the occupier or
person on a prominent place on
the land.
(10) A warrant expires if it has not been
executed by the end of 28 days after the
day on which it was issued.
65L. Additional requirements in respect of
authorised officer in dealings with
disadvantaged persons
(1) A person is entitled to be assisted by an
interpreter or other representative during
any questioning conducted by an
authorised officer in the course of
investigating an offence, if the person is
not reasonably fluent in English or able
to comprehend spoken English.
(2) As soon as the authorised officer
becomes aware, or ought to have become
aware, that subsection (1) applies in
relation to a person, the officer may not
question or further question the person
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until the person has been informed, in a
manner that the person is likely to
comprehend, that the person has the right
to an interpreter, or another
representative, chosen by the person,
who is willing and able to assist the
person.
(3) If the person requests the assistance of an
interpreter or other representative, the
officer must not continue with the
questioning, or further questioning, until
an interpreter or other representative,
chosen by the person and willing and
able to assist the person, is present.
65M. Obstruction, &c., of authorised officers and
others
(1) A person must not -
(a) assault, resist, impede or obstruct
an authorised officer, or a person
assisting an authorised officer
under section 65K, in the exercise
of the officer's powers, or in the
performance of the officer's
functions, under this Act; or
(b) use threatening, abusive or
insulting language to an
authorised officer, or a person
assisting an authorised officer
under section 65K, in the exercise
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of the officer's powers, or in the
performance of the officer's
functions, under this Act; or
(c) fail to comply with a requirement
imposed on the person under
section 65J; or
(d) provide false or misleading
information when required to
provide information under
section 65J; or
(e) impersonate an authorised officer.
Penalty: Fine not exceeding 40 penalty
units.
(2) If a person is convicted by a court of an
offence against subsection (1)(c) of
failing to comply with a requirement, the
court may order the person to comply
with the requirement.
11. Section 85A inserted
After section 85 of the Principal Act, the
following section is inserted in Part 6:
85A. Immunity from liability
(1) An authorised officer, or a person
assisting an authorised officer under
section 65K, is not personally liable in
respect of any act done or omitted to be
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done by the officer or person in good
faith in the performance or exercise, or
purported performance or exercise, of a
function or power of an authorised
officer under this Act.
(2) A member of a planning authority is not
personally liable in respect of any act
done or omitted to be done by the
planning authority in good faith in the
performance or exercise, or purported
performance or exercise, of a function or
power of a planning authority under this
Act.
(3) Nothing in subsection (1) or (2)
precludes the Crown or a planning
authority from incurring liability that an
authorised officer, a person assisting an
authorised officer under section 65K or a
member of a planning authority would
otherwise incur.
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Part 3 - Local Government (General) Regulations 2005 Amended s. 12
PART 3 - LOCAL GOVERNMENT (GENERAL)
REGULATIONS 2005 AMENDED
12. Principal Regulations
In this Part, the Local Government (General)
Regulations 2005* are referred to as the
Principal Regulations.
13. Schedule 7 amended (Questions)
Schedule 7 to the Principal Regulations is
amended by inserting after paragraph (b) in item
20 in the first table in Part 3 the following item:
20A. Enforcement notices
(a) has the council a record of an
enforcement notice issued under
section 65C of the Act in relation
to the specified land?
(b) if YES to (a), provide particulars.
*S.R. 2005, No. 64
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s. 14 Part 4 - Miscellaneous and Repeal
PART 4 - MISCELLANEOUS AND REPEAL
14. Amendment of regulations
The amendment by this Act of a provision of the
Local Government (General) Regulations 2005
does not prevent the amendment or rescission of
the provision by a subsequent regulation.
15. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which all of the provisions of this Act
commence.
46 Government Printer, Tasmania