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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Peel-Harvey Catchment Management Bill 2014
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used 2
4. Crown bound 5
5. Objectives of Act and principles to be regarded 6
6. Application of s. 5; relationship of this Act to other
Acts; disputes etc. between Trust and Sch. 3
authority 8
7. Native title rights and interests, how affected by
this Act 10
Part 2 -- Land and waters to which
this Act applies
8. Catchment area defined (Sch. 1) 11
9. Development control area defined (Sch. 1 and 2) 11
10. Sch. 1 and 2, amending by regulations 11
11. Boundaries of catchment area etc., proving 12
12. Boundaries of catchment area etc., resolving
questions as to 12
Part 3 -- Peel-Harvey Catchment
Trust
Division 1 -- Establishment and management
13. Trust established and nature of 14
14. Trust is agent of Crown etc. 14
15. Board of management of Trust 14
16. Board, membership of 14
17. Board, constitution and proceedings of (Sch. 4) 16
18. Remuneration and allowances of members 16
82--1 page i
Peel-Harvey Catchment Management Bill 2014
Contents
19. Local governments attendance of nominees of at
board meetings 16
Division 2 -- Functions and powers
20. Functions of Trust 17
21. Powers of Trust 19
22. Consultation and matters to be considered by Trust 20
23. Local governments, consultation by Trust with 20
24. Collaborative arrangements, Trust may enter etc. 21
25. Delegation by Trust etc. 22
26. Minister may give Trust directions 24
27. Minister to have access to information 24
28. Committees, Trust may appoint etc. 25
Division 3 -- Staff and facilities
29. General Manager and staff 25
30. Government staff and facilities, use of by Trust 26
Division 4 -- Inspectors
31. Inspectors, designating etc. 26
32. Identity cards for inspectors 27
Division 5 -- Financial provisions
33. Trust's funds 27
34. Peel Harvey Catchment Trust Account 28
35. Temporary investment of moneys 28
36. Financial Management Act 2006 and Auditor
General Act 2006, application of 28
37. Power to borrow from Treasurer 28
Division 6 -- Miscellaneous
38. Execution of documents 29
Part 4 -- Targets and strategic
documents
Division 1 -- Environmental quality targets
39. Regulations may prescribe targets 30
40. Consultation with public authorities etc. about
proposed s. 39 regulations 30
41. Draft s. 39 regulations to be published etc. 31
42. Public submissions about draft s. 39 regulations 31
Division 2 -- Strategic documents
43. Estuary protection strategy, content of 32
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Peel-Harvey Catchment Management Bill 2014
Contents
44. Water Quality Improvement Plan for the Rivers
and Estuary of the Peel Harvey System (2008),
temporary effect of 33
45. Management programmes, content of 33
46. Codes and subsidiary legislation, estuary
protection strategy and management programme
may adopt 34
47. Documents not prepared by Trust, approval of as
strategic documents 34
Division 3 -- Preparation, approval and
revision of estuary protection strategy
and management programmes
48. Trust to prepare draft documents 35
49. Consultation with local governments etc. about
proposed documents 36
50. Draft document to be published etc. 36
51. Public submissions about draft document 37
52. Draft document to be referred to certain bodies 37
53. Consultation with relevant Minister about draft
document 37
54. Approval of draft document by Minister 39
55. Approval of strategic document to be published;
when strategic document operates 39
56. Certain strategic documents, periodic review of 39
Division 4 -- Compliance with strategic
documents
57. Who has to comply with strategic documents;
documents etc. to be publicly available 41
58. Trust to report etc. on targets, compliance etc. 41
Part 5 -- Development in
development control area
59. Terms used 43
60. Land etc. owned by etc. public authority, use and
development of 43
61. Developments to which this Part applies 43
62. Development to be approved 44
63. Certain reclamations to be authorised by
Parliament 45
64. Approval, applying for 45
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Peel-Harvey Catchment Management Bill 2014
Contents
65. Consultation with local governments etc. about
development application 46
66. Development applications to be publicised 47
67. Draft report by Trust on proposed development 48
68. Report by Trust to Minister about proposed
development 49
69. Minister's options after considering s. 68 report 50
70. Review committee under s. 69(1)(b)(ii),
membership of etc. 50
71. Review committee's functions as to Trust's
recommendations 51
72. Minister's decision 51
73. Financial assurance condition may be imposed on
approval 52
74. Condition etc. on approval, request for
reconsideration of 53
75. Correction of approval 54
76. Variation or extension of approval 55
77. Approvals by Trust 55
78. Trust must give s. 77 decisions etc. to Minister 56
79. Minister may revoke Trust's decision etc. 57
80. False statements in applications 57
81. Refusal etc. of development, compensation for
injurious affection for etc. 58
Part 6 -- Estuary protection notices
82. Issue of notice, General Manager may recommend 60
83. Notice, issue of by Trust and content of 61
84. Service of notice 62
85. Who a notice binds 63
86. Memorial on land title of notice 63
87. Owner etc. of land subject to s. 86 memorial,
duties of if land changes ownership etc. 64
88. Memorial under s. 86, General Manager's duties to
give notice of etc. 65
89. Notice subject of s. 86 memorial binds new owners
of land 65
90. Financial assurance requirement, inclusion of in
notice 65
91. Amending or cancelling notice 66
92. Review by SAT of requirement in notice etc. 67
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Peel-Harvey Catchment Management Bill 2014
Contents
93. Contravening notice, offence 67
94. Contravention of notice, Trust's powers in case of 68
95. Entry to land etc. to ensure compliance with notice,
powers as to 68
Part 7 -- Investigation and
enforcement
Division 1 -- Preliminary
96. Terms used 70
Division 2 -- Investigative powers
97. Purposes for which investigation may be carried
out 70
98. Personal details of suspect, powers to obtain 71
99. Entry etc. powers 72
100. Records, powers to obtain 73
101. Exercise of power may be recorded 74
102. Force and assistance, use of 74
Division 3 -- Entry warrants
103. Entry warrant, who may apply for 74
104. Applications for entry warrant, how to be made 75
105. Entry warrant, issue of 77
106. Entry warrant, effect of 77
Division 4 -- Enforcement provisions
107. Obstructing or impersonating inspector, offence 77
108. Illegal development etc., Trust's powers as to 78
109. Abandoned etc. property, powers as to 79
110. Trust's costs under s. 94, 108(5) or 109, recovering
in case of financial assurance condition etc. 80
Part 8 -- Legal proceedings
Division 1 -- General matters
111. Prosecutions, commencing etc. and averments in 83
112. Time limit for prosecuting 83
113. Offence by body corporate, liability of directors
etc. in case of and proof of 84
Division 2 -- Infringement notices
114. Terms used 85
115. Infringement notices 85
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Peel-Harvey Catchment Management Bill 2014
Contents
Division 3 -- Offences under other Acts
116. Offences under other Acts (Sch. 6), enforcing
under this Act 87
117. Offences under other Acts (Sch. 6), prosecuting 87
118. Alleged offences under other Acts
(Sch. 6), infringement notices for 87
Part 9 -- Peel-Harvey Catchment
Foundation
119. Foundation established 89
120. Council to govern Foundation 89
121. Functions of Foundation 89
122. Powers of Foundation 89
123. Peel-Harvey Catchment Foundation Account 89
124. Rules for this Part 90
Part 10 -- General
125. Delegation by Minister 92
126. Duties and liabilities of members etc. performing
functions under this Act 92
127. Protection from personal liability 94
128. Regulations 94
129. Review of Act 96
Schedule 1 -- Catchment area
Schedule 2 -- Development control
area
Schedule 3 -- Authorities
Schedule 4 -- Constitution and
proceedings of the board
Division 1 -- General provisions
1. Term used: appointed member 101
2. Term of office 101
3. Members to be part-time, except chairman 101
4. Resignation and removal 101
5. Leave of absence 102
6. Deputy chairman 102
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Peel-Harvey Catchment Management Bill 2014
Contents
7. Temporary members 102
8. Meetings, times and places of, quorum at etc. 102
9. Resolution may be passed without meeting 103
10. Meetings by telephone etc. 104
11. Minutes of meetings 105
12. Procedures 105
Division 2 -- Disclosure of interests
13. Term used: member 105
14. Material personal interests to be disclosed 105
15. Member with material personal interest not to vote
etc. 105
16. Clause 15 may be declared inapplicable 106
17. Quorum if cl. 15 applies 106
18. Minister may declare cl. 15 and 17 inapplicable 106
19. Supplementary provision about laying documents
before Parliament 106
Schedule 5 -- Local governments
Schedule 6 -- Prescribed regulations
Defined terms
page vii
Western Australia
LEGISLATIVE ASSEMBLY
(Introduced by Mr Chris Tallentire, MLA)
Peel-Harvey Catchment Management Bill 2014
A Bill for
An Act to make provision for --
• the rehabilitation of the Peel Inlet - Harvey Estuary and the
protection of the Estuary from further degradation;
• the establishment of a Trust with planning, protection and
management functions in respect of the Peel-Harvey
Catchment and associated land;
• the management policies to be followed by the Trust and
other persons in relation to the Peel-Harvey Catchment and
associated land;
• the establishment of a Foundation with fund-raising and
other functions,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Peel-Harvey Catchment Management Bill 2014
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Peel-Harvey Catchment Management Bill 2014.
4 2. Commencement
5 (1) This Act comes into operation on a day to be fixed by
6 proclamation.
7 (2) Different days may be fixed under subsection (1) for different
8 provisions.
9 3. Terms used
10 (1) In this Act, unless the contrary intention appears --
11 Account means the Peel-Harvey Estuary Trust Account referred
12 to in section 34;
13 board means the board of management referred to in section 15;
14 catchment area means the land and waters referred to in
15 section 8;
16 chairman means chairman of the board;
17 committee means a committee established under section 28;
18 Crown land has the meaning given to that term in the Land
19 Administration Act 1997;
20 development means --
21 (a) the erection, construction, demolition, alteration or
22 carrying out of any building, excavation, or other works,
23 in, on, over or under land or waters; and
24 (b) a material change in the use of land or waters; and
25 (c) any other act or activity in relation to land or waters
26 declared by the regulations to constitute development,
27 but does not include any work, act or activity declared by the
28 regulations not to constitute development;
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Peel-Harvey Catchment Management Bill 2014
Preliminary Part 1
s. 3
1 development control area means the land and waters referred to
2 in section 9;
3 Environmental Protection Policy Approval Order means the
4 Environmental Protection (Peel Inlet - Harvey Estuary) Policy
5 Approval Order 1992 made under the Environmental Protection
6 Act 1986;
7 Estuary means the Peel Inlet and Harvey Estuary;
8 estuary protection notice means a notice referred to in
9 section 83;
10 estuary protection strategy means the estuary protection
11 strategy approved and in force under Part 4;
12 Foundation means the Peel-Harvey Catchment Foundation
13 established under section 119;
14 Foundation Account means the Peel-Harvey Catchment
15 Foundation Account referred to in section 123;
16 General Manager means the person appointed as such for the
17 purposes of section 29;
18 high water mark --
19 (a) in relation to tidal waters -- means the ordinary high
20 water mark at spring tides; and
21 (b) in relation to non-tidal waters -- means the ordinary
22 high water mark at winter level;
23 inspector means --
24 (a) a person designated as such under section 31; or
25 (b) a police officer;
26 land includes tidal land and land covered by water, whether
27 continuously or discontinuously;
28 lot has the meaning given to that term in the Planning and
29 Development Act 2005;
30 management programme means a management programme
31 referred to in section 45 and approved and in force under Part 4;
32 member means a member of the board;
page 3
Peel-Harvey Catchment Management Bill 2014
Part 1 Preliminary
s. 3
1 Minister for Planning means the Minister to whom the
2 administration of the Planning and Development Act 2005 is
3 committed;
4 officer of the Trust means --
5 (a) the General Manager; or
6 (b) a person whose services are provided under
7 section 29(2) or used under section 30(1); or
8 (c) a person engaged under section 21(2)(a)(i);
9 owner means --
10 (a) in relation to freehold land --
11 (i) a holder of the freehold; or
12 (ii) a mortgagee in possession;
13 and
14 (b) in relation to Crown land --
15 (i) the care, control and management of which has
16 been placed in a management body as defined in
17 the Land Administration Act 1997 -- that
18 management body; and
19 (ii) which is reserved, set apart or vested for, or
20 dedicated to, the purposes of another written
21 law -- the person who is responsible for the
22 administration of that Crown land while it is so
23 reserved, set apart, vested or dedicated; and
24 (iii) other than land referred to in subparagraph (i)
25 or (ii) -- the Minister for Lands, as referred to in
26 the Land Administration Act 1997 section 7;
27 prescribed means prescribed by regulations made under
28 this Act;
29 public authority means --
30 (a) a Government department, State trading concern, State
31 instrumentality or State public utility; or
32 (b) a local government or regional local government; or
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Peel-Harvey Catchment Management Bill 2014
Preliminary Part 1
s. 4
1 (c) any other person, whether corporate or not, who or
2 which, under the authority of a written law, administers
3 or carries on for the benefit of the State a social service
4 or public utility;
5 Schedule 3 authority means a person listed in Schedule 3;
6 Statement of Planning Policy No. 21 means the Statement of
7 Planning Policy No. 21 made under the Town Planning and
8 Development Act 1928
9 strategic document means --
10 (a) the estuary protection strategy; or
11 (b) a management programme; or
12 (c) a document approved under section 47;
13 Trust means the Peel Harvey Catchment Trust established by
14 section 13;
15 Trust website means an internet website established by the Trust
16 and maintained for the purposes of this Act and other purposes
17 of the Trust;
18 unallocated Crown land has the meaning given to that term in
19 the Land Administration Act 1997;
20 waters includes the estuarybed and subsoil normally covered by
21 waters when at the high water mark;
22 Western Australian Planning Commission means the body
23 established by the Planning and Development Act 2005
24 section 7.
25 (2) Deposited plans referred to in this Act are those held by the
26 department of the Public Service that principally assists in the
27 administration of the Transfer of Land Act 1893.
28 4. Crown bound
29 This Act binds the Crown in right of the State and, so far as the
30 legislative power of the State permits, the Crown in all its other
31 capacities.
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Peel-Harvey Catchment Management Bill 2014
Part 1 Preliminary
s. 5
1 5. Objectives of Act and principles to be regarded
2 (1) The objectives of this Act are --
3 (a) to provide for the rehabilitation and protection of the
4 Estuary;
5 (b) to provide for the management of activities that affect
6 the ecological and community benefits and amenity of
7 the Estuary;
8 (c) to provide for the needs of future generations in relation
9 to the ecological and community benefits and amenity of
10 the Estuary;
11 (d) to recognise the interests of the Nyungah community
12 and other people in the community with an association
13 with the Catchment area and to provide for their
14 participation in the management of those areas and the
15 management of activities affecting the ecological and
16 community benefits and amenity of those areas;
17 (e) to promote and facilitate the good management of the
18 catchment area to meet the objectives referred to in
19 paragraphs (a) to (d).
20 (2) In pursuing the objectives of this Act regard should be had to
21 the following principles --
22 Table
23 1. Sustainability principles
24 (1) Sound environmental practices and procedures should be
25 adopted as a basis for sustainability for the benefit of all human
26 beings and the environment today, while considering the
27 environmental, social and economic needs of future generations.
28 (2) Environmental, social and economic factors should be
29 considered in decision-making, with the objective of improving
30 community well-being and the benefit to future generations.
31 (3) Environmental practices and procedures should be
32 cost-effective and in proportion to the significance of the
33 environmental risks and consequences being addressed.
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Peel-Harvey Catchment Management Bill 2014
Preliminary Part 1
s. 5
1 2. Precautionary principle
2 (1) Where there are threats of serious or irreversible environmental
3 damage, lack of full scientific certainty should not be used as a
4 reason for postponing measures to prevent environmental
5 degradation.
6 (2) In the application of the precautionary principle,
7 decision-making should be guided by --
8 (a) a careful evaluation to avoid serious or irreversible
9 damage to the environment wherever possible; and
10 (b) an assessment of the risk-weighted consequences of the
11 options.
12 3. Intergenerational equity
13 The present generation should ensure that the health, diversity
14 and productivity of the environment are maintained or enhanced
15 for the benefit of future generations.
16 4. Biodiversity and ecological integrity
17 Biodiversity and ecological integrity should be maintained or
18 enhanced as part of the irreplaceable life support systems upon
19 which the earth depends.
20 5. Shared responsibility
21 Protection of the environment is a responsibility shared by
22 Government, industry, business, the community and the people
23 of the State.
24 6. Best practice
25 When designing policies, systems, procedures or technologies,
26 the best practicable measures available at the time should be
27 used.
28 7. Continuous improvement
29 Implementation of natural resource management should aim for
30 continuous improvement and extend beyond compliance with
31 relevant laws and requirements.
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Peel-Harvey Catchment Management Bill 2014
Part 1 Preliminary
s. 6
1 8. Accountability and transparency
2 (1) Members of the community should be given --
3 (a) access to reliable and relevant information; and
4 (b) opportunities to participate in policy and programme
5 development.
6 (2) Decisions should be made in a transparent manner and be made
7 public.
8 6. Application of s. 5; relationship of this Act to other Acts;
9 disputes etc. between Trust and Sch. 3 authority
10 (1) Persons involved in the administration of this Act, and
11 Schedule 3 authorities, should perform their functions with due
12 regard to the objectives and principles of this Act.
13 (2) The provisions of any other written law must be construed and
14 applied --
15 (a) with due regard to the objectives and principles of this
16 Act; and
17 (b) so that those objectives and principles are paramount,
18 unless that construction or application would --
19 (c) be inconsistent with the objects and intentions of that
20 written law; or
21 (d) substantially interfere with the operation of the
22 provisions of that written law.
23 (3) Except where the contrary intention is expressed in this Act, the
24 vesting in the Trust of functions in respect of the catchment area
25 and development control area does not limit the functions vested
26 by any written law in any other person in respect of those areas.
27 (4) If a provision of this Act, other than a provision of Part 5, is in
28 conflict with a power conferred on a Schedule 3 authority by a
29 written law, the Schedule 3 authority and the Trust must
30 endeavour to reach agreement as to which provision will
31 prevail.
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Peel-Harvey Catchment Management Bill 2014
Preliminary Part 1
s. 6
1 (5) If a question, difference or dispute arises, or may arise, between
2 a Schedule 3 authority and the Trust as to the rights, powers or
3 authority of, or the discharge of any duty by, a Schedule 3
4 authority, or as to their respective functions or interests, on a
5 matter referred to in subsection (4), then --
6 (a) if the matter relates to the functions of a government
7 department -- the Minister charged with the
8 administration of that government department (the
9 Schedule 3 Minister) may consult with the Minister;
10 (b) if the matter relates to the functions of a statutory
11 authority -- the Minister to whom the Governor has
12 committed the Act under which the statutory authority is
13 established or continued (the Schedule 3 Minister) may
14 consult with the Minister.
15 (6) If the Ministers agree after consultation under subsection (5),
16 the Schedule 3 Minister must give the Schedule 3 authority, and
17 the Minister must give the Trust, such directions as result from
18 the consultation and agreement.
19 (7) If no consultation under subsection (5) is concluded or the
20 Ministers cannot agree as to the matter, the matter may be
21 finally and conclusively determined by the Governor, and effect
22 must be given to the determination.
23 (8) The Governor may finally and conclusively determine any
24 question, difference or dispute arising or about to arise between
25 a Schedule 3 authority and the Trust as to the rights, powers or
26 authority of, or the discharge of any duty by, a Schedule 3
27 authority, or as to their respective functions or interests, on a
28 matter referred to in subsection (4) whether or not referred to
29 the Governor under subsection (7) and whether or not the
30 Ministers had purported to agree under subsection (6), and
31 effect must be given to the determination.
32 (9) Without limiting subsection (4), the regulations may make
33 provision as to the manner and circumstances in which a
34 conflict referred to in subsection (4) must be brought to the
35 notice of the Trust.
page 9
Peel-Harvey Catchment Management Bill 2014
Part 1 Preliminary
s. 7
1 (10) The performance of a function by the Trust or a Schedule 3
2 authority cannot be appealed against, reviewed, quashed,
3 challenged, or called in question, before or by any person acting
4 judicially or a court or tribunal on any account or by any means
5 on the ground that the performance of the function does not
6 comply with subsection (1) or (2).
7 7. Native title rights and interests, how affected by this Act
8 (1) In this section --
9 affect has the meaning given to that term in the NTA
10 section 227;
11 native title rights and interests has the meaning given to that
12 term in the NTA section 223;
13 NTA means the Native Title Act 1993 of the Commonwealth.
14 (2) Nothing done by or under this Act operates to affect any native
15 title rights and interests.
16 (3) Subsection (2) does not apply to the extent that the effect on
17 those rights and interests is valid by the operation of, or by
18 anything done under, the NTA or another law of this State.
page 10
Peel-Harvey Catchment Management Bill 2014
Land and waters to which this Act applies Part 2
s. 8
1 Part 2 -- Land and waters to which this Act applies
2 8. Catchment area defined (Sch. 1)
3 A reference in this Act to the catchment area is a reference to
4 the land and waters within the area for the time being described
5 in Schedule 1.
6 9. Development control area defined (Sch. 1 and 2)
7 (1) A reference in this Act to the development control area is a
8 reference to the land and waters that are --
9 (a) within the catchment area; and
10 (b) within the area for the time being described in
11 Schedule 2.
12 10. Sch. 1 and 2, amending by regulations
13 (1) The regulations may amend or add detail to Schedule 1 or 2 --
14 (a) by adding any area to the catchment area or
15 development control area;
16 (b) by excising any area from the catchment area or
17 development control area;
18 (c) by deleting the catchment area or development control
19 area and substituting another area for it.
20 (2) Before regulations are made for the purposes of subsection (1)
21 the Minister must consult with --
22 (a) the Minister for Planning; and
23 (b) any other Minister of the Crown that the Minister
24 considers has a relevant interest in the regulations; and
25 (c) the local government --
26 (i) of the district in which any proposed new
27 boundary is located; and
28 (ii) of the district in which the existing boundary that
29 would be amended is located;
30 and
page 11
Peel-Harvey Catchment Management Bill 2014
Part 2 Land and waters to which this Act applies
s. 11
1 (d) any other public authority that has the care, control or
2 management of land likely to be added to, excised from,
3 or substituted for, land in the catchment area.
4 (3) Regulations referred to in subsection (1) may provide for the
5 substitution of a plan for a plan referred to in Schedule 1 or 2, or
6 for the amendment of an area by reference to a further plan.
7 11. Boundaries of catchment area etc., proving
8 (1) In any proceedings --
9 (a) a plan purporting to be a copy of a plan referred to in
10 Schedule 1 or 2 showing the boundaries or any boundary
11 of the catchment area; or
12 (b) a notice published under section 12(3) of the location of
13 a boundary of the catchment area,
14 is evidence of those boundaries or that boundary.
15 (2) A person may not assert the invalidity of a plan referred to in
16 Schedule 1 or 2 on the ground of error, misdescription,
17 irregularity or uncertainty if the error, misdescription,
18 irregularity or uncertainty did not in fact mislead the person in a
19 material way.
20 12. Boundaries of catchment area etc., resolving questions as to
21 (1) If any question arises as to the boundary of the catchment area,
22 the Trust, after giving the persons interested in the resolution of
23 the question the opportunity to make submissions to it, must
24 refer the question to the Minister with its opinion.
25 (2) The Minister must submit the matter, together with the Trust's
26 opinion, to the Governor for decision as to what is, or is to be
27 treated as, the boundary of the catchment area, and the
28 Governor's decision is final.
page 12
Peel-Harvey Catchment Management Bill 2014
Land and waters to which this Act applies Part 2
s. 12
1 (3) If any part of the boundary of the catchment area is determined
2 by the Governor under subsection (2) --
3 (a) the boundary of the catchment area is to be taken to be
4 the boundary determined by the Governor; and
5 (b) the Minister must cause --
6 (i) the location of that boundary to be notified in the
7 Gazette; and
8 (ii) a copy of the notice to be kept with the plans
9 referred to in Schedule 1 or 2, whichever is
10 relevant.
page 13
Peel-Harvey Catchment Management Bill 2014
Part 3 Peel-Harvey Catchment Trust
Division 1 Establishment and management
s. 13
1 Part 3 -- Peel-Harvey Catchment Trust
2 Division 1 -- Establishment and management
3 13. Trust established and nature of
4 (1) A body called the Peel Harvey Catchment Trust is established.
5 (2) The Trust is a body corporate with perpetual succession.
6 (3) Proceedings may be taken by or against the Trust in its
7 corporate name.
8 14. Trust is agent of Crown etc.
9 The Trust is an agent of the Crown and has the status,
10 immunities and privileges of the Crown.
11 15. Board of management of Trust
12 (1) The Trust is to have a board of management.
13 (2) The board is the governing body of the Trust.
14 (3) The board, in the name of the Trust, is to perform the functions
15 of the Trust under this Act or any other written law.
16 16. Board, membership of
17 (1) The members of the board are --
18 (a) 6 members appointed by the Minister, none of whom is
19 an elected member of the council of a local government;
20 and
21 (b) the person holding or acting in the office of chief
22 executive officer of the department principally assisting
23 in the administration of the Planning and Development
24 Act 2005, or a nominee of the chief executive officer
25 approved by the Minister; and
26 (c) a person appointed by the Minister whose name is
27 included in a panel of 3 names submitted to the Minister
page 14
Peel-Harvey Catchment Management Bill 2014
Peel-Harvey Catchment Trust Part 3
Establishment and management Division 1
s. 16
1 by the Western Australian Local Government
2 Association.
3 (d) a person appointed by the Minister whose name is
4 included in a panel of 3 names submitted to the Minister
5 by the Peel Harvey Catchment Council.
6 (2) As far as is practicable, the membership of the board must
7 comprise persons who between them have knowledge of, and
8 experience in, the fields of conservation, natural resource
9 management, recreation, tourism, planning, development,
10 matters of interest to the rural community and matters of interest
11 to the Nyungah community.
12 (3) The member appointed under subsection (1)(d) shall be the
13 chairman of the board.
14 (4) Before appointing a member under subsection (1)(a) the
15 Minister must publish in a newspaper circulating throughout the
16 State a notice calling for expressions of interest in appointment
17 to the board.
18 (5) The Minister must consider expressions of interest lodged in
19 accordance with the notice but may appoint a person as a
20 member of the board whether or not the person has lodged an
21 expression of interest.
22 (6) Where the submission of a panel of names is required for the
23 purposes of subsection (1)(c), the submission must be made to
24 the Minister, in writing signed on behalf of the Western
25 Australian Local Government Association, within such
26 reasonable time after the receipt by it of a notice from the
27 Minister that such submission is required as is specified in the
28 notice.
29 (7) Where the submission of a panel of names is required for the
30 purposes of subsection (1)(d), the submission must be made to
31 the Minister, in writing signed on behalf of the Peel-Harvey
32 Catchment Council, within such reasonable time after the
33 receipt by it of a notice from the Minister that such submission
34 is required as is specified in the notice.
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Peel-Harvey Catchment Management Bill 2014
Part 3 Peel-Harvey Catchment Trust
Division 1 Establishment and management
s. 17
1 (8) If the submission has not been made in accordance with
2 subsection (6) or (7) within the time specified under that
3 subsection the Minister may nominate an elected member of the
4 council of a local government to be a member of the board in
5 place of the person provided for by subsection (1)(c) or (1)(d).
6 17. Board, constitution and proceedings of (Sch. 4)
7 Schedule 4 has effect.
8 18. Remuneration and allowances of members
9 (1) In subsection (2) --
10 member means a member appointed under section 16(1)(a), (c)
11 or (d) and a member of a committee.
12 (2) A member is to be paid such remuneration and travelling and
13 other allowances as are determined, in the case of that member,
14 by the Minister on the recommendation of the Public Sector
15 Commissioner.
16 19. Local governments attendance of nominees of at board
17 meetings
18 (1) Subject to subsections (4) and (5), the chairman must by notice
19 specifying the time and place of a meeting of the board, request
20 a local government referred to in Schedule 3 to nominate a
21 person to attend or participate in that meeting if a matter to be
22 considered at that meeting is a relevant matter for that local
23 government.
24 (2) A relevant matter for a local government is one that --
25 (a) relates to a development or proposed development in a
26 part of the catchment area that is in or adjoins the district
27 of that local government; or
28 (b) is in the opinion of the chairman a matter that affects or
29 is likely to affect the interest of that local government in
30 a material way and to an extent that is greater than the
31 extent to which other local governments referred to in
32 Schedule 3 are affected.
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Peel-Harvey Catchment Management Bill 2014
Peel-Harvey Catchment Trust Part 3
Functions and powers Division 2
s. 20
1 (3) A notice under subsection (1) must be given --
2 (a) in writing to the local government not less than 14 clear
3 days before the meeting; or
4 (b) in writing or by facsimile or electronic communication
5 to the local government within such lesser period as the
6 local government may, by notice in writing or by
7 facsimile or electronic communication, agree.
8 (4) A nomination under subsection (1) must be made --
9 (a) if not less than 14 clear days notice of the meeting has
10 been given, in writing delivered to the board not later
11 than 3 clear days before the meeting; or
12 (b) if the local government or redevelopment authority has
13 agreed to a lesser period of notice, in writing or by
14 facsimile or electronic communication before the
15 meeting commences.
16 (5) A person nominated under subsection (1) is entitled to attend or
17 participate in a meeting for the purpose of determining any
18 relevant matter in relation to which the person is nominated, and
19 to attend or participate in any subsequent meeting that the
20 chairman may request the person to attend in connection with
21 that matter, and has all of the functions of a member in relation
22 to the consideration of that matter at any such meeting.
23 Division 2 -- Functions and powers
24 20. Functions of Trust
25 The functions of the Trust are --
26 (a) to improve the social, economic, ecological, aesthetic,
27 and recreational potential of the estuary; and
28 (b) to work with the local governments listed in Schedule 3
29 to ensure the achievement of environmental quality
30 objectives under the Environmental Protection Policy
31 Approval Order; and
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Peel-Harvey Catchment Management Bill 2014
Part 3 Peel-Harvey Catchment Trust
Division 2 Functions and powers
s. 20
1 (d) to establish targets for ecological and community
2 benefits and amenity of the Estuary, and mechanisms
3 evaluating achievement of those targets; and
4 (e) to coordinate and promote the development and
5 implementation of strategic documents under this Act;
6 and
7 (f) to coordinate and promote the activities of other bodies
8 that have functions in relation to the catchment area,
9 insofar as those functions may affect the Estuary,
10 including the implementation of any strategic documents
11 applicable to the catchment area; and
12 (g) to monitor and report to the Minister on --
13 (i) whether changes to land use are appropriately
14 controlled in line with the Statement of Planning
15 Policy No. 21; and
16 (ii) the achievement and maintenance of
17 environmental quality objectives in line with the
18 Environmental Protection Policy Approval Order
19 and as prescribed by regulations;
20 (iii) the state of the development control area;
21 (iv) development on or adjacent to the development
22 control area;
23 and
24 (i) to provide advice to the Western Australian Planning
25 Commission on State planning policies and planning
26 scheme provisions relating to any matter within its
27 functions, and to publish other statements of policy
28 relating to any matter within its functions; and
29 (j) to provide advice and promote public education on any
30 matter within its functions; and
31 (k) to perform such functions as are delegated to it under
32 any other written law; and
33 (l) to otherwise undertake the administration and
34 enforcement of this Act; and
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Peel-Harvey Catchment Management Bill 2014
Peel-Harvey Catchment Trust Part 3
Functions and powers Division 2
s. 21
1 (m) to perform any other function vested in it by this Act or
2 any other written law.
3 21. Powers of Trust
4 (1) The Trust has all the powers it needs to perform its functions
5 under this Act or any other written law.
6 (2) Subject to any limitation imposed by this Act or another written
7 law, the Trust may, for the purpose of performing any of its
8 functions under this Act or any other written law --
9 (a) enter into any contract or arrangement, including a
10 contract or arrangement with a person for --
11 (i) the performance of the function by that person on
12 behalf of the Trust; or
13 (ii) the supply of equipment or services;
14 and
15 (b) act as an agent or provide consultancy, professional, or
16 technical services or other assistance under a contract for
17 services or other arrangement; and
18 (c) carry out any investigation, survey, exploration,
19 feasibility study, evaluation, or review; and
20 (d) collaborate in, carry out, or procure the carrying out of,
21 research and publish information that results from the
22 research; and
23 (e) produce and publish information on matters related to its
24 functions.
25 (3) Subsection (2) does not limit subsection (1) or any of the Trust's
26 other powers.
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Peel-Harvey Catchment Management Bill 2014
Part 3 Peel-Harvey Catchment Trust
Division 2 Functions and powers
s. 22
1 22. Consultation and matters to be considered by Trust
2 (1) The Trust must, so far as is practicable and consistent with
3 this Act --
4 (a) consult and collaborate with persons that are affected in
5 a material way by the performance of its functions; and
6 (b) have regard, in the performance of its functions, to --
7 (i) protection and enhancement of the ecological
8 and community benefits and amenity of the
9 Estuary; and
10 (ii) the significance of the waters in the Estuary to
11 the Nyungah community; and
12 (iii) the requirements of public recreation; and
13 (iv) the need to preserve right of access for the public
14 to waters in the Estuary; and
15 (v) the interests of navigation, fisheries, agriculture
16 and water supply.
17 (2) The Trust must consult and collaborate with any body that
18 appears to the Trust to have a role in regional natural resource
19 management in the catchment area to ensure that, to the extent
20 that is practicable, there is consistency between the strategies
21 and programmes of the Trust and the functions of that body, to
22 the extent to which those functions may affect the Estuary.
23 23. Local governments, consultation by Trust with
24 (1) If it appears to the Trust that a measure proposed to be taken by
25 the Trust, not being a matter to which Part 4 applies or a
26 development to which Part 5 applies, is one that affects or is
27 likely to affect the interests of a local government referred to in
28 Schedule 3, in a material way, the Trust must refer the proposal
29 to the local government.
30 (2) If a proposal is referred to it, the local government may make
31 submissions to the Trust on the proposal.
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Peel-Harvey Catchment Management Bill 2014
Peel-Harvey Catchment Trust Part 3
Functions and powers Division 2
s. 24
1 (3) The Trust must have regard to those submissions --
2 (a) in any report, advice or recommendation that it intends
3 to submit to the Minister on the proposal; and
4 (b) if it undertakes the proposal.
5 (4) The local government must be notified of any decision in
6 respect of the proposal --
7 (a) by the Minister, in the case of a decision by the Minister;
8 and
9 (b) by the Trust, in the case of a decision by the Trust.
10 24. Collaborative arrangements, Trust may enter etc.
11 (1) Subject to this section, the Trust may enter into a collaborative
12 arrangement with any other person --
13 (a) binding that person to undertake programmes of a kind
14 specified in the arrangement and directed towards
15 protection and enhancement of the ecological and
16 community benefits and amenity of the Estuary or any
17 part of the Estuary; or
18 (b) providing for measures to be taken jointly with that
19 person relating to any matter that is within the functions
20 of the Trust and that other person.
21 (2) The term of a collaborative arrangement must not exceed
22 5 years but on its expiry a further collaborative arrangement
23 may be made.
24 (3) A collaborative arrangement under this section may contain
25 terms providing for any matter that the Trust considers
26 appropriate for securing the objectives of this Act, including
27 terms --
28 (a) providing for measures to be taken jointly by the parties
29 to the arrangement; and
30 (b) binding the Trust to provide financial or other assistance
31 of any kind to the other party or parties or any of them;
32 and
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Peel-Harvey Catchment Management Bill 2014
Part 3 Peel-Harvey Catchment Trust
Division 2 Functions and powers
s. 25
1 (c) relating to the objectives and performance standards to
2 be met by a party other than the Trust; and
3 (d) requiring a party to report to the Trust in relation to the
4 party's obligations under the agreement; and
5 (e) as to the monitoring functions of the Trust; and
6 (f) as to the means by which disputes under the
7 arrangement may be dealt with; and
8 (g) as to procedures for varying and enforcing the
9 arrangement.
10 (4) The Trust must not enter into a collaborative arrangement under
11 this section except with the prior approval of the Minister.
12 (5) For the purposes of subsection (4) the Minister may approve a
13 specific collaborative arrangement or class of collaborative
14 arrangement.
15 (6) A collaborative arrangement does not have effect to relieve a
16 party to the arrangement from any duty under this or any other
17 Act, and any obligations imposed under such an arrangement
18 have effect in addition to and not in derogation of the
19 requirements imposed by or under this or any other Act.
20 25. Delegation by Trust etc.
21 (1) In subsection (2) --
22 eligible person means --
23 (a) a member;
24 (b) a committee or a member of the committee;
25 (c) an officer of the Trust;
26 (d) an inspector;
27 (e) a public authority or a member or officer of a public
28 authority or a member of the council of, or an employee
29 of, a local government.
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Peel-Harvey Catchment Management Bill 2014
Peel-Harvey Catchment Trust Part 3
Functions and powers Division 2
s. 25
1 (2) Subject to subsection (3), the Trust may, by resolution, delegate
2 to an eligible person any function of the Trust under another
3 provision of this Act or any other written law.
4 (3) The Trust --
5 (a) must not delegate a function vested in it by section 67,
6 69, 73, 77, 81, 83 or 91; and
7 (b) must not delegate any other function vested in it under
8 Part 5 except to the General Manager.
9 (4) A resolution under subsection (2) takes effect when notice of the
10 resolution is published in the Gazette.
11 (5) The Trust may in a delegation under subsection (2) empower a
12 public authority to subdelegate a function delegated to it under
13 this section to --
14 (a) in the case of a public authority that is not a local
15 government -- a committee of, a member of, or an
16 officer of, the authority; or
17 (b) in the case of a local government -- the council of, a
18 committee of, or an employee of, the local government,
19 or a member of the council of the local government.
20 (6) Except as provided in subsection (5), a delegate or subdelegate
21 must not further delegate any function.
22 (7) A person exercising or performing a function that has been
23 delegated to the person under this section is to be taken to do so
24 in accordance with the terms of the delegation unless the
25 contrary is shown.
26 (8) Nothing in this section limits the ability of the Trust to perform
27 a function through an officer or agent.
28 (9) This section does not apply to the execution of documents but
29 the authority to execute documents on behalf of the Trust can be
30 given under section 38.
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Peel-Harvey Catchment Management Bill 2014
Part 3 Peel-Harvey Catchment Trust
Division 2 Functions and powers
s. 26
1 26. Minister may give Trust directions
2 (1) The Minister may give written directions to the Trust with
3 respect to the exercise or performance of its functions, either
4 generally or in relation to a particular matter, and the Trust must
5 give effect to any such direction.
6 (2) The text of a direction under subsection (1) must be included in
7 the annual report submitted by the accountable authority of the
8 Trust under the Financial Management Act 2006 Part 5.
9 27. Minister to have access to information
10 (1) In this section --
11 document includes any tape, disc or other device or medium on
12 which information is recorded or stored;
13 information means information specified, or of a description
14 specified, by the Minister that relates to the functions of the
15 Trust.
16 (2) The Minister is entitled to have information in the possession of
17 the Trust and, if the information is in or on a document, to have,
18 and make and retain copies of, that document.
19 (3) For the purposes of subsection (2) the Minister may --
20 (a) request the Trust to provide information to the Minister;
21 and
22 (b) request the Trust to give the Minister access to
23 information; and
24 (c) for the purposes of paragraph (b) make use of the
25 officers of the Trust to obtain the information and
26 provide it to the Minister.
27 (4) The Trust must comply with a request under subsection (3) and
28 make its officers and facilities available to the Minister for the
29 purposes of paragraph (c) of that subsection.
page 24
Peel-Harvey Catchment Management Bill 2014
Peel-Harvey Catchment Trust Part 3
Staff and facilities Division 3
s. 28
1 28. Committees, Trust may appoint etc.
2 (1) The Trust may appoint committees to assist it in the
3 performance of its functions, and may discharge or alter any
4 committee so appointed.
5 (2) A committee may include persons who are not members of the
6 board.
7 (3) Subject to the directions of the Trust and to the terms of any
8 delegation under section 25, a committee may determine its own
9 procedures.
10 Division 3 -- Staff and facilities
11 29. General Manager and staff
12 (1) In this section --
13 chief executive officer means the chief executive officer of the
14 department of the Public Service principally assisting in the
15 administration of the Environmental Protection Act 1986.
16 (2) The chief executive officer must provide the Trust with the
17 services of such public service officers, including a General
18 Manager, and other professional, technical and administrative
19 staff as the Trust may reasonably require to perform its
20 functions.
21 (3) Subject to the control of the board, the General Manager is to
22 administer the day to day operations of the Trust.
23 (4) The General Manager is entitled to attend any meeting of the
24 board and to take part in the consideration and discussion of any
25 matter before a meeting, but cannot vote on any matter.
26 (5) The General Manager and other officers of the Trust are not, in
27 the performance of their functions under this Act, subject to the
28 direction of the chief executive officer.
page 25
Peel-Harvey Catchment Management Bill 2014
Part 3 Peel-Harvey Catchment Trust
Division 4 Inspectors
s. 30
1 30. Government staff and facilities, use of by Trust
2 (1) The Trust may by arrangement with the relevant employer make
3 use, either full-time or part-time, of the services of any officer
4 or employee --
5 (a) in the Public Service; or
6 (b) in a State agency or instrumentality; or
7 (c) otherwise in the service of the State.
8 (2) The Trust may by arrangement with --
9 (a) a department of the Public Service; or
10 (b) a State agency or instrumentality,
11 make use of any facilities of the department, agency or
12 instrumentality.
13 (3) The Trust must not enter into an arrangement under
14 subsection (1) or (2) without the prior approval of the Minister.
15 (4) An arrangement under subsection (1) or (2) is to be made on
16 such terms as are agreed to by the parties.
17 (5) An officer or employee provided under this section is not, in the
18 performance of his or her functions under this Act, subject to the
19 direction of his or her employer.
20 Division 4 -- Inspectors
21 31. Inspectors, designating etc.
22 (1) The Trust may, by instrument in writing, designate an officer of
23 the Trust or other officer of a public authority as an inspector.
24 (2) An inspector may perform such of the functions of an inspector
25 as may be specified in his or her instrument of designation.
26 (3) The Trust may revoke a designation under subsection (1) at any
27 time.
28 (4) A police officer is ex officio an inspector.
page 26
Peel-Harvey Catchment Management Bill 2014
Peel-Harvey Catchment Trust Part 3
Financial provisions Division 5
s. 32
1 32. Identity cards for inspectors
2 (1) The General Manager must issue to an inspector an identity card
3 stating that he or she has been designated as an inspector.
4 (2) An inspector must produce the identity card whenever requested
5 to do so by any person in respect of whom the inspector has
6 exercised, or is about to exercise, a power under Part 7
7 Division 2.
8 (3) Production of an identity card is evidence in any court of the
9 designation of the inspector to whom the identity card relates.
10 (4) A person who ceases to be an inspector must, as soon as
11 practicable, return his or her identity card to the General
12 Manager or other person authorised to receive it.
13 Penalty: a fine of $10 000.
14 (5) This section does not apply to an inspector who is a police
15 officer.
16 Division 5 -- Financial provisions
17 33. Trust's funds
18 (1) Subject to this Act, the Trust is responsible for managing its
19 own finances.
20 (2) The funds available to the Trust to enable it to perform its
21 functions under this Act or any other written law are --
22 (a) moneys borrowed under section 37; and
23 (b) any other moneys lawfully received by, made available
24 to, or payable to, the Trust under this Act or any other
25 written law.
26 (3) Where any moneys or property, including moneys or property
27 representing a gift by will, have been accepted by the Trust
28 upon lawful conditions, it must apply the moneys or property in
29 accordance with those conditions.
page 27
Peel-Harvey Catchment Management Bill 2014
Part 3 Peel-Harvey Catchment Trust
Division 5 Financial provisions
s. 34
1 34. Peel Harvey Catchment Trust Account
2 (1) An account called the Peel Harvey Catchment Trust Account is
3 to be established --
4 (a) as an agency special purpose account under the
5 Financial Management Act 2006 section 16; or
6 (b) with the approval of the Treasurer, at a bank as defined
7 in section 3 of that Act,
8 to which the funds referred to in section 33 must be credited.
9 (2) All expenditure incurred by the Trust for the purposes of
10 performing its functions under this Act, including the repayment
11 of moneys borrowed by the Trust under section 37, is to be
12 charged to the Account and moneys standing to the credit of that
13 Account must be applied only for the purposes of this Act.
14 35. Temporary investment of moneys
15 If section 34(1)(b) applies, moneys standing to the credit of the
16 Account may, until required by the Trust for the purposes of this
17 Act, be temporarily invested by the Trust in such manner as the
18 Treasurer approves.
19 36. Financial Management Act 2006 and Auditor General
20 Act 2006, application of
21 The provisions of the Financial Management Act 2006 and the
22 Auditor General Act 2006 regulating the financial
23 administration, audit and reporting of statutory authorities apply
24 to and in relation to the Trust and its operations.
25 37. Power to borrow from Treasurer
26 The Trust may borrow from the Treasurer such amounts as the
27 Treasurer approves on such conditions relating to repayment,
28 payment of interest or any other matter as the Treasurer
29 imposes.
page 28
Peel-Harvey Catchment Management Bill 2014
Peel-Harvey Catchment Trust Part 3
Miscellaneous Division 6
s. 38
1 Division 6 -- Miscellaneous
2 38. Execution of documents
3 (1) The Trust is to have a common seal.
4 (2) A document is duly executed by the Trust if --
5 (a) the common seal of the Trust is affixed to it in
6 accordance with subsections (3) and (4); or
7 (b) it is signed on behalf of the Trust by a person or persons
8 authorised to do so under subsection (5).
9 (3) The common seal of the Trust must not be affixed to any
10 document except as authorised by the Trust.
11 (4) The common seal of the Trust must be affixed to a document in
12 the presence of the chairman and another member, or the
13 chairman and an officer of the Trust authorised by the Trust
14 either generally or in any particular case to be so present, and
15 each of them must sign the document to attest that the common
16 seal was so affixed.
17 (5) The Trust may, by writing under its common seal, authorise a
18 member or members or an officer or officers of the Trust to sign
19 documents on behalf of the Trust, either generally or subject to
20 such conditions or restrictions as are specified in the
21 authorisation.
22 (6) A document purporting to be executed in accordance with this
23 section is to be presumed to be duly executed until the contrary
24 is shown.
25 (7) A document executed by a person under this section without the
26 common seal of the Trust is not to be regarded as a deed unless
27 the person executes it as a deed and is authorised under
28 subsection (5) to do so.
29 (8) When a document is produced bearing a seal purporting to be
30 the common seal of the Trust, it is to be presumed that the seal
31 is the common seal of the Trust until the contrary is shown.
page 29
Peel-Harvey Catchment Management Bill 2014
Part 4 Targets and strategic documents
Division 1 Environmental quality targets
s. 39
1 Part 4 -- Targets and strategic documents
2 Division 1 -- Environmental quality targets
3 39. Regulations may prescribe targets
4 (1) The regulations may prescribe --
5 (a) environmental quality targets for the Estuary over and
6 above those set out in the Environmental Protection
7 Policy Approval Order; and
8 (b) targets for the catchment area that relate to the
9 achievement of the targets prescribed under
10 paragraph (a).
11 (2) Without limiting subsection (1) the regulations may --
12 (a) prescribe targets for levels of phosphorus, nitrogen or
13 other pollutants in waters;
14 (b) make provision for --
15 (i) monitoring protocols; and
16 (ii) sampling procedures; and
17 (iii) standards, criteria and benchmarks; and
18 (iv) statistical treatments; and
19 (v) reporting procedures,
20 in relation to measuring the targets prescribed under
21 subsection (1) or paragraph (a) of this subsection.
22 (3) A failure to meet a target or a contravention of a regulation
23 prescribing a target is not an offence.
24 40. Consultation with public authorities etc. about proposed
25 s. 39 regulations
26 Before regulations are made in relation to a matter referred to in
27 section 39 the Trust must endeavour to consult with any public
28 authority or person which or who appears to the Minister to be
29 likely to be affected in a material way by the regulations.
page 30
Peel-Harvey Catchment Management Bill 2014
Targets and strategic documents Part 4
Environmental quality targets Division 1
s. 41
1 41. Draft s. 39 regulations to be published etc.
2 (1) The Trust must --
3 (a) deposit copies of draft regulations proposed to be made
4 in relation to a matter referred to in section 39 for public
5 inspection during ordinary business hours free of charge
6 at the office of the Trust; and
7 (b) publish the draft regulations on the Trust website.
8 (2) As soon as practicable after the deposit of the copies of the draft
9 regulations under subsection (1)(a) the Trust must publish --
10 (a) in the Gazette; and
11 (b) in 2 issues of a daily newspaper circulating throughout
12 the State,
13 a notice --
14 (c) specifying the places at which copies of the draft
15 regulations may be inspected and obtained; and
16 (d) stating the effect of section 42 and specifying the period
17 referred to in that section.
18 (3) The Trust may fix and charge a fee for supplying a copy of draft
19 regulations.
20 42. Public submissions about draft s. 39 regulations
21 Submissions on draft regulations proposed to be made in
22 relation to a matter referred to in section 39 may be made, in the
23 form, if any, approved by the Trust, by any person --
24 (a) within a period determined by the Trust that is not less
25 than 60 days after the day on which the notice is
26 published in the Gazette under section 41(2)(a); and
27 (b) by delivering or posting them so that they are received
28 within that period at the offices of the Trust.
page 31
Peel-Harvey Catchment Management Bill 2014
Part 4 Targets and strategic documents
Division 2 Strategic documents
s. 43
1 Division 2 -- Strategic documents
2 43. Estuary protection strategy, content of
3 (1) The estuary protection strategy must --
4 (a) establish coordinated management arrangements
5 necessary for the protection and enhancement of the
6 ecological and community benefits and amenity of the
7 Estuary, and the meeting of the targets referred to in
8 section 39; and
9 (b) specify --
10 (i) the persons who, in addition to the Trust, are
11 responsible for those management arrangements;
12 and
13 (ii) their responsibilities under those management
14 arrangements.
15 (2) Without limiting subsection (1), the estuary protection strategy
16 may --
17 (a) establish objectives and performance standards for the
18 coordinated management of the catchment area; and
19 (b) provide for the development of key strategies and broad
20 programmes to achieve the objectives of this Act; and
21 (c) specify reporting and compliance requirements of
22 Schedule 3 authorities; and
23 (d) set out requirements for the assessment of the state of
24 the Estuary and their ecological and community benefits
25 and amenity, and for reporting on the effectiveness of
26 the estuary protection strategy; and
27 (e) set out protocols for the acquisition, assessment and
28 storage of information relating to requirements under
29 paragraph (d).
30 (3) The estuary protection strategy may specify the period within
31 which any action recommended in the strategy must be
32 implemented.
page 32
Peel-Harvey Catchment Management Bill 2014
Targets and strategic documents Part 4
Strategic documents Division 2
s. 44
1 44. Water Quality Improvement Plan for the Rivers and
2 Estuary of the Peel Harvey System (2008), temporary effect
3 of
4 The Water Quality Improvement Plan for the Rivers and
5 Estuary of the Peel-Harvey System (2008) has effect as
6 guidelines for management arrangements for the protection and
7 enhancement of the ecological and community benefits and
8 amenity of the Estuary until the estuary protection strategy is
9 approved under this Part.
10 45. Management programmes, content of
11 (1) A management programme may --
12 (a) specify the objectives of the management programme in
13 relation to the protection and enhancement of the
14 ecological and community benefits and amenity of the
15 Estuary; and
16 (b) identify the areas or activities to which the management
17 programme applies, including areas that require priority
18 protection and areas requiring priority remediation; and
19 (c) specify the management arrangements to be
20 implemented.
21 (2) A management programme in relation to the development
22 control area must include policies and guidelines proposed to be
23 followed by the Trust in relation to development in the
24 development control area.
25 (3) A management programme may specify the period within which
26 any action recommended in the management programme must
27 be implemented.
28 (4) A management programme must be consistent with the estuary
29 protection strategy.
30 (5) A management programme must not disclose any information or
31 matter communicated in confidence for the purposes of this Act
32 or which would or might reasonably be expected to cause
page 33
Peel-Harvey Catchment Management Bill 2014
Part 4 Targets and strategic documents
Division 2 Strategic documents
s. 46
1 damage to the interests of the person from whom the
2 information was received.
3 46. Codes and subsidiary legislation, estuary protection strategy
4 and management programme may adopt
5 (1) In this section --
6 code means a code, standard, rule, specification or other
7 document, made in or outside Australia, that does not by itself
8 have legislative effect in this State.
9 (2) The estuary protection strategy or a management programme
10 may adopt, either wholly or in part or with modifications --
11 (a) any code; or
12 (b) any subsidiary legislation made, determined or issued
13 under any other Act or under any Act of the
14 Commonwealth, another State or a Territory.
15 (3) If the estuary protection strategy or a management programme
16 adopts a code or subsidiary legislation, it is adopted as in force
17 from time to time unless the estuary protection strategy or
18 management programme specifies that a particular text is
19 adopted.
20 47. Documents not prepared by Trust, approval of as strategic
21 documents
22 (1) The Minister may, on the recommendation of the Trust, approve
23 as a strategic document a document prepared by a public
24 authority, person or body other than the Trust.
25 (2) The Minister must not approve a document under subsection (1)
26 unless the Minister is satisfied that --
27 (a) the document is consistent with the estuary protection
28 strategy or a management programme; and
29 (b) there has been sufficient community consultation, and
30 consultation with public authorities, persons and bodies
31 likely to be affected in a material way by the document,
32 in the preparation of the document; and
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strategy and management programmes
s. 48
1 (c) each relevant Minister has agreed to the terms of the
2 document.
3 (3) In subsection (2)(c) --
4 relevant Minister, in relation to a document referred to in this
5 section, means a Minister for the time being responsible for the
6 administration of a written law under which functions are vested
7 in a person in respect of a matter that is likely to be affected in a
8 material way by the document.
9 Division 3 -- Preparation, approval and revision of estuary
10 protection strategy and management programmes
11 48. Trust to prepare draft documents
12 (1) As soon as is practicable after the commencement of this section
13 the Trust must prepare or cause to be prepared --
14 (a) a draft estuary protection strategy; and
15 (b) a draft management programme for the Estuary; and
16 (c) a draft management programme for the development
17 control area; and
18 (d) such other draft management programmes as the Trust
19 considers necessary to give effect to the estuary
20 protection strategy.
21 (2) If the draft estuary protection strategy or a management
22 programme adopts a code or subsidiary legislation, any
23 reference in this Division to the draft estuary protection strategy
24 or management programme includes a reference to the code or
25 subsidiary legislation so adopted.
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s. 49
1 49. Consultation with local governments etc. about proposed
2 documents
3 In the preparation of the estuary protection strategy or a
4 management programme the Trust must consult --
5 (a) a local government to the extent that the interests of the
6 local government appear to the Minister to be likely to
7 be affected in a material way by the document; and
8 (b) the Western Australian Local Government Association;
9 and
10 (c) any other public authority, person or body who or which
11 appears to the Minister to be likely to be affected in a
12 material way by the document.
13 50. Draft document to be published etc.
14 (1) The Trust must --
15 (a) deposit copies of the draft estuary protection strategy or
16 management programme for public inspection during
17 ordinary business hours free of charge at the office of
18 the Trust; and
19 (b) publish the draft estuary protection strategy or
20 management programme on the Trust website.
21 (2) As soon as practicable after the deposit of the copies of the draft
22 estuary protection strategy or management programme under
23 subsection (1)(a) the Trust must publish --
24 (a) in the Gazette; and
25 (b) in 2 issues of a daily newspaper circulating throughout
26 the State,
27 a notice --
28 (c) specifying the places at which copies of the draft
29 document may be inspected and obtained, and the Trust
30 website address; and
31 (d) stating the effect of section 51 and specifying the period
32 referred to in that section.
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s. 51
1 (3) The Trust may fix and charge a fee for supplying a copy of a
2 draft document.
3 51. Public submissions about draft document
4 Submissions on the draft estuary protection strategy or
5 management programme may be made, in the form, if any,
6 approved by the Trust, by any person --
7 (a) within a period determined by the Trust that is not less
8 than 60 days after the day on which the notice is
9 published in the Gazette under section 50(2)(a); and
10 (b) by delivering or posting them so that they are received
11 within that period at the offices of the Trust.
12 52. Draft document to be referred to certain bodies
13 (1) The draft estuary protection strategy or management
14 programme, modified if the Trust thinks fit after considering
15 submissions made under section 51, must be referred by the
16 Trust to each public authority, person and body consulted under
17 section 49 together with a summary of those submissions, and
18 may be referred by it to any other public authority, person or
19 body.
20 (2) If a public authority, person or body to which the draft estuary
21 protection strategy or management programme is referred under
22 subsection (1) considers that the Trust should vary the
23 document, it may within 28 days after receipt of the draft
24 document under subsection (1), in writing, request the Trust to
25 make the variation.
26 53. Consultation with relevant Minister about draft document
27 (1) In this section --
28 relevant Minister, in relation to a draft estuary protection
29 strategy or management programme, means a Minister for the
30 time being responsible for the administration of a written law
31 under which functions are vested in any person in respect of a
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s. 53
1 matter that is likely to be affected in a material way by the draft
2 estuary protection strategy or management programme.
3 (2) Subject to this Part, the Trust must submit the draft estuary
4 protection strategy or management programme, modified as it
5 thinks fit to give effect to submissions made under section 51
6 and any request made under section 52(2), to the Minister.
7 (3) The Minister may direct that, before consultation is carried out
8 under subsection (4), the draft estuary protection strategy or
9 management programme must be modified as directed by the
10 Minister.
11 (4) The Minister must --
12 (a) consult each Minister who, in the opinion of the
13 Minister, is a relevant Minister; and
14 (b) if possible, agree with each relevant Minister on the
15 terms of the draft estuary protection strategy or
16 management programme submitted under subsection (2).
17 (5) For the purposes of subsection (4) the draft estuary protection
18 strategy or management programme must be modified as
19 directed by the Minister and agreed by the relevant Minister.
20 (6) If the Minister and a relevant Minister cannot agree on the terms
21 of the draft estuary protection strategy or management
22 programme --
23 (a) the Minister may refuse to approve the draft document
24 and give directions to the Trust as to the preparation of a
25 further draft document to be submitted under
26 subsection (2); or
27 (b) if the Minister determines that action is not to be taken
28 under paragraph (a), the Minister may refer the matter in
29 dispute to the Governor and the decision of the
30 Governor on that matter is final.
31 (7) The Trust must comply with any direction of the Minister under
32 subsection (3), (5) or (6)(a) and give effect to any decision of
33 the Governor under subsection (6)(b).
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strategy and management programmes
s. 54
1 54. Approval of draft document by Minister
2 The Minister may approve the draft estuary protection strategy
3 or management programme if --
4 (a) each relevant Minister has agreed under section 53(4) to
5 the terms of the draft estuary protection strategy or
6 management programme or a decision approving the
7 document has been made by the Governor under
8 section 53(6)(b); and
9 (b) in the case of a draft management programme, the
10 Minister is satisfied that it is consistent with the estuary
11 protection strategy.
12 55. Approval of strategic document to be published; when
13 strategic document operates
14 (1) Notice that a strategic document has been approved by the
15 Minister under section 47 or 54 must be published by the
16 Minister in the Gazette, together with a note showing --
17 (a) whether any modifications were made under section 53;
18 and
19 (b) where a copy of the document may be inspected or
20 obtained.
21 (2) The strategic document comes into operation on the day of
22 publication in the Gazette of a notice under subsection (1) or on
23 a later day that is specified in the strategic document.
24 (3) The Trust may fix and charge a fee for supplying a copy of the
25 strategic document.
26 56. Certain strategic documents, periodic review of
27 (1) The Trust must review each estuary protection strategy or
28 management programme approved by the Minister under
29 section 54 as soon as practicable after --
30 (a) the fifth anniversary of the day on which it came into
31 operation; and
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s. 56
1 (b) the expiry of each 5 yearly interval after that
2 anniversary,
3 and, if it considers that the circumstances so require, prepare
4 amendments to that strategic document or a revised estuary
5 protection strategy or management programme.
6 (2) If, on a review under this section, the Trust considers that the
7 estuary protection strategy or management programme does not
8 require amendment or revision it may determine that the
9 existing strategic document is to continue in force without
10 amendment.
11 (3) The following provisions, as to consultation about, and approval
12 of, strategic documents apply for the purposes of this section,
13 with all necessary changes --
14 (a) section 49, as if the reference in that section to the
15 preparation of the estuary protection strategy or a
16 management programme were a reference to a review of
17 the estuary protection strategy or a management
18 programme;
19 (b) sections 50, 51, 52, 53 and 54, as if the references in
20 those sections to the draft estuary protection strategy or
21 management programme were references to the
22 proposed amendments to the estuary protection strategy
23 or management programme or a proposal that the
24 existing estuary protection strategy or management
25 programme be continued in force without amendment;
26 (c) section 55 as if references in that section to a strategic
27 document were references to the amendment of the
28 estuary protection strategy or management programme
29 or the continuation of the strategic document.
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Targets and strategic documents Part 4
Compliance with strategic documents Division 4
s. 57
1 Division 4 -- Compliance with strategic documents
2 57. Who has to comply with strategic documents; documents
3 etc. to be publicly available
4 (1) The Trust must perform its functions in accordance with the
5 strategic documents.
6 (2) Subject to sections 6 and 62, the Schedule 3 authorities must
7 perform their functions that affect the development control area
8 or the Estuary in accordance with the strategic documents.
9 (3) A copy of each strategic document, and any code or subsidiary
10 legislation adopted by the strategic document, must be --
11 (a) kept in the offices of the Trust and be available for
12 inspection by the public during office hours free of
13 charge; and
14 (b) published on the Trust website.
15 58. Trust to report etc. on targets, compliance etc.
16 (1) It is a function of the Trust --
17 (a) to monitor and report to the Minister at least biennially
18 on --
19 (i) the extent to which ecological and community
20 benefit and amenity targets are being met; and
21 (ii) the extent of compliance with prescribed
22 ecological and community benefit and amenity
23 targets and strategic documents; and
24 (iii) the operation and effectiveness of the strategic
25 documents;
26 and
27 (b) to make recommendations to the Minister as to changes
28 to the prescribed ecological and community benefits and
29 amenity targets and strategic documents.
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s. 58
1 (2) The Trust may, by notice in writing, require a public authority
2 to provide, within such reasonable time as is specified in the
3 notice, such information as the Trust may reasonably require to
4 assist it in carrying out its functions under subsection (1).
5 (3) A public authority must comply with a request under
6 subsection (2).
7 (4) Any report under subsection (1) must be included in the annual
8 report submitted by the accountable authority of the Trust under
9 the Financial Management Act 2006 Part 5.
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Development in development control area Part 5
s. 59
1 Part 5 -- Development in development control area
2 59. Terms used
3 In this Part, unless the contrary intention appears --
4 applicant means a person who applies for approval under
5 section 64;
6 approval means approval for the purposes of section 62;
7 development means a development to which this Part applies by
8 operation of section 61;
9 development application means an application for approval --
10 (a) made to the Trust under section 64(2); or
11 (b) sent to the Trust by a local government or
12 redevelopment authority under section 64(4).
13 60. Land etc. owned by etc. public authority, use and
14 development of
15 Land and waters in the development control area that are owned
16 by or vested in a public authority may be used, but not
17 developed, without approval under section 62 if the land and
18 waters are used for any purpose for which they were lawfully
19 used before the coming into force of that Scheme.
20 61. Developments to which this Part applies
21 (1) This Part applies to a development if --
22 (a) it is proposed to be undertaken in the development
23 control area; and
24 (b) no part of the development is proposed to be undertaken
25 on land comprised in a lot that is, in whole or in part, or
26 waters that are, outside that area.
27 (2) It is immaterial for the purposes of this Part that a development
28 is undertaken in the performance of a function vested in a
29 person by a written law.
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s. 62
1 (3) This Part does not apply to a development that was lawfully
2 being carried out in the development control area immediately
3 before the commencement of this section.
4 (4) A development referred to in subsection (3), or in respect of
5 which all necessary approvals under any written law were in
6 force immediately before the commencement of this section,
7 may be lawfully carried out as if this Part had not been enacted.
8 62. Development to be approved
9 (1) Subject to section 63, a person must not undertake or cause to
10 be undertaken any development to which this Part applies
11 without the approval of the Minister or, in the case of
12 development of a class that the Trust is authorised to approve
13 under section 77, the Trust.
14 Penalty:
15 (a) a fine of $50 000;
16 (b) for each separate and further offence committed by
17 the person under the Interpretation Act 1984
18 section 71, a fine of $5 000.
19 (2) A person must not undertake or cause to be undertaken any
20 development to which this Part applies in contravention of a
21 condition or restriction attached to an approval of the Minister
22 or the Trust.
23 Penalty:
24 (a) a fine of $50 000;
25 (b) for each separate and further offence committed by
26 the person under the Interpretation Act 1984
27 section 71, a fine of $5 000.
28 (3) The requirements of subsections (1) and (2) extend to the Trust.
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s. 63
1 63. Certain reclamations to be authorised by Parliament
2 (1) Despite any other written law, no person is to fill in or reclaim
3 any part of the development control area that is normally
4 covered by water if the area to be filled in or reclaimed --
5 (a) exceeds one hectare; or
6 (b) is required as part of one scheme involving an area of
7 more than one hectare of the area so covered; or
8 (c) together with a contiguous area or areas that was or were
9 so covered and has or have been filled in or reclaimed at
10 any time within the preceding 5 years, would exceed one
11 hectare,
12 except under and in accordance with the authority of a
13 resolution of each House of Parliament approving the filling or
14 reclamation of that area.
15 Penalty:
16 (a) a fine of $50 000;
17 (b) for each separate and further offence committed by
18 the person under the Interpretation Act 1984
19 section 71, a fine of $5 000.
20 (2) Reference in subsection (1) to a part of the development control
21 area normally covered by water is a reference to an area so
22 covered when the water level measured at the Barrack Street
23 Jetty in Perth is 80 centimetres above low water mark measured
24 at Fremantle Inner Harbour as defined in the description of the
25 Port of Fremantle under the Port Authorities Act 1999.
26 (3) The requirements of subsection (1) extend to the Trust.
27 64. Approval, applying for
28 (1) If a development is proposed to be carried out on land that is
29 within the district of a local government, an application for
30 approval must be made in the prescribed form to that local
31 government unless the application is made under subsection (2).
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1 (2) If an application for approval is not required to be made in
2 accordance with subsection (1), an application for approval
3 must be made in the prescribed form to the Trust.
4 (3) An application must be --
5 (a) signed by the owner of the land on which it is proposed
6 to carry out the development; and
7 (b) accompanied by plans and specifications of the proposed
8 development.
9 (4) An application to which subsection (1) or (2) applies must be
10 sent to the Trust by the local government or redevelopment
11 authority, as the case requires, within 7 days of being made to
12 the local government or redevelopment authority.
13 (5) An applicant must furnish such information and documents
14 relating to the proposed development as the Trust may
15 reasonably require for proper consideration of the application.
16 65. Consultation with local governments etc. about development
17 application
18 (1) The Trust must by notice in writing refer a development
19 application and information and documents relating to the
20 proposed development to --
21 (a) each local government for which the development
22 appears to the Trust to be a relevant matter as defined in
23 section 19(2)(a); and
24 (b) each other public authority that appears to the Trust to
25 have functions that are relevant to the proposed
26 development.
27 (2) A local government or other public authority to which
28 particulars are referred under subsection (1) may make
29 submissions on the proposed development to the Trust.
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s. 66
1 (3) A report must not be made by the Trust under section 67
2 until --
3 (a) the expiration of 42 days after all notices have been
4 given as required by subsection (1); or
5 (b) final submissions have been made to it by all authorities
6 to which particulars were referred under that subsection,
7 whichever is the sooner.
8 66. Development applications to be publicised
9 (1) The Trust must publish on the Trust website notice of each
10 development application it receives.
11 (2) The applicant must give notice of the proposed development, in
12 a form approved by the Trust, in --
13 (a) a newspaper circulating in the district where the
14 development is proposed to be undertaken; and
15 (b) a newspaper circulating throughout the State,
16 if --
17 (c) the chairman advises the applicant that the chairman
18 considers that the proposed development is a matter of
19 significant public interest; or
20 (d) the Trust advises the applicant that it considers that the
21 proposed development is a matter of significant public
22 interest; or
23 (e) the Minister so directs.
24 (3) A notice under subsection (1) or (2) --
25 (a) must specify the place at which particulars of the
26 proposed development may be inspected; and
27 (b) must state the effect of subsection (5) and specify the
28 period of at least 14 days after publication of the notice
29 within which a submission may be made; and
30 (c) may specify the form or manner, or both, in which a
31 submission may be made.
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1 (4) The Trust must send a copy of a notice referred to in
2 subsection (2) to each local government and redevelopment
3 authority for which the proposed development appears to the
4 Trust to be a relevant matter as that term is defined in
5 section 19, and that local government or redevelopment
6 authority must display a copy of the notice at its public office
7 until the expiry of the period for making submissions under
8 subsection (5).
9 (5) Where notice is given under subsection (1) or (2), any person
10 may make a submission --
11 (a) in the form and manner specified (if any) in the notice;
12 and
13 (b) within the period specified in the notice.
14 67. Draft report by Trust on proposed development
15 (1) After complying with sections 65 and 66, the Trust must prepare
16 a draft report on the proposed development and in that draft
17 report make recommendations on the development application.
18 (2) The Trust, in preparing its report under this section, must
19 consider all submissions received by it under sections 65
20 and 66.
21 (3) The Trust must --
22 (a) give a copy of the draft report, with an invitation to
23 make submissions to the Trust on the draft report, to --
24 (i) the applicant; and
25 (ii) each local government and other public authority
26 to which notice was given under section 65(1);
27 and
28 (iii) each person who made a submission under
29 section 66(5);
30 and
31 (b) publish the draft report on the Trust website and in any
32 other way the Trust considers appropriate, with an
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s. 68
1 invitation to the public to make submissions to the Trust
2 on the draft report.
3 (4) An invitation to make submissions to the Trust on the draft
4 report --
5 (a) must specify a period of at least 14 days within which a
6 submission may be made; and
7 (b) may specify the form or manner, or both, in which a
8 submission may be made.
9 (5) Any person may make a submission to the Trust on the draft
10 report --
11 (a) in the form and manner specified (if any) in the
12 invitation; and
13 (b) within the period specified in the invitation.
14 68. Report by Trust to Minister about proposed development
15 (1) The Trust, after considering any submissions made under
16 section 67 and making such changes to the report as it considers
17 appropriate, must --
18 (a) give a copy of the report to --
19 (i) the Minister; and
20 (ii) the applicant; and
21 (iii) each local government and other public authority
22 to which the draft report was given under
23 section 67; and
24 (iv) each person who made a submission under
25 section 67;
26 and
27 (b) publish the report on the Trust website and in any other
28 way the Trust considers appropriate.
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s. 69
1 (2) A report to the Minister under subsection (1)(a)(i) on an
2 application must be accompanied by --
3 (a) a copy of each submission made under section 65(1), 66
4 or 67 in relation to the application or draft report; and
5 (b) the Trust's comments on those submissions.
6 69. Minister's options after considering s. 68 report
7 (1) The Minister after considering the report on a proposed
8 development and any other matter that the Minister considers
9 relevant must --
10 (a) deal with the application in accordance with section 72;
11 or
12 (b) instead of so doing --
13 (i) return the application to the Trust and direct it to
14 reconsider its recommendations within such
15 period as the Minister may specify; or
16 (ii) appoint a review committee to consider those
17 recommendations and report to the Minister on
18 them within such period as the Minister may
19 specify,
20 and subsequently deal with the application in accordance
21 with section 72.
22 (2) If the Minister gives a direction to the Trust under
23 subsection (1)(b)(i) the Minister may also direct the Trust to
24 consult with the applicant and any other person the Minister
25 directs in an endeavour to resolve any question in issue.
26 (3) The Trust must comply with any direction given to it under this
27 section.
28 70. Review committee under s. 69(1)(b)(ii), membership of etc.
29 (1) A review committee appointed under section 69(1) (b)(ii) is to
30 consist of one person who has, or 2 or more persons at least one
31 of whom has, appropriate expertise in estuary management and
32 planning.
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1 (2) A member of a review committee is to be paid such
2 remuneration and travelling and other allowances as are
3 determined in the case of the member by the Minister on the
4 recommendation of the Public Sector Commissioner.
5 71. Review committee's functions as to Trust's
6 recommendations
7 (1) A review committee appointed under section 69(1)(b)(ii)
8 may --
9 (a) consult with the applicant and any other person it
10 considers appropriate; and
11 (b) inform itself in any manner that it considers appropriate.
12 (2) The Trust may make submissions to a review committee.
13 (3) A review committee must report to the Minister as required by
14 section 69(1)(b)(ii).
15 72. Minister's decision
16 (1) Subject to this Part, the Minister may, for the purposes of
17 section 62 --
18 (a) approve the development; or
19 (b) approve the development in a modified form; or
20 (c) give approval in terms of paragraph (a) or (b) but subject
21 to any conditions or restrictions; or
22 (d) refuse to give approval.
23 (2) Nothing in this Part authorises the Minister to approve a
24 development in a manner that is inconsistent with --
25 (a) a strategic document; or
26 (b) an approved environmental protection policy under the
27 Environmental Protection Act 1986 Part III; or
28 (c) any condition or procedure required to be complied with
29 under Part IV of that Act; or
30 (d) the Statement of Planning Policy No. 21.
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1 (3) The Minister may limit the time for which an approval remains
2 in force.
3 (4) Without limiting subsection (1)(c), the Minister may, as a
4 condition of an approval of a development, require an applicant
5 to pay a reasonable sum for or towards the cost of any study of,
6 or protective or remedial work in respect of, land or waters in
7 the development control area that is occasioned by that
8 development.
9 (5) The Minister or, in the case of a decision by the Trust, the Trust
10 must cause notice in writing of the decision to be --
11 (a) given to --
12 (i) the applicant; and
13 (ii) each local government and other public authority
14 to which notice was given under section 65(1);
15 and
16 (iii) each person who made a submission under
17 section 67;
18 and
19 (b) published on the Trust website.
20 73. Financial assurance condition may be imposed on approval
21 (1) In this section --
22 approving authority means --
23 (a) in relation to an approval under section 77 -- the Trust;
24 and
25 (b) in relation to any other approval under this Part -- the
26 Minister.
27 (2) Without limiting section 72(1) (c), an approving authority may,
28 as a condition of an approval, require the applicant to provide to
29 the Trust before the commencement of the development a
30 financial assurance of the kind specified in the condition.
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1 (3) A financial assurance may be required to be given in one or
2 more of the following forms --
3 (a) a bank guarantee;
4 (b) a bond;
5 (c) an insurance policy;
6 (d) another form of security that the approving authority
7 specifies.
8 (4) The condition may provide for the procedures under which the
9 financial assurance may be called on or used under section 110.
10 (5) The amount of the financial assurance --
11 (a) must be specified in the condition; and
12 (b) must not exceed an amount that, in the opinion of the
13 approving authority, represents a reasonable estimate of
14 the total likely costs that might be incurred by the Trust
15 if it were necessary to take action under section 108(5)
16 or 109 in relation to that development.
17 (6) A condition requiring the provision of a financial assurance
18 lapses and no longer binds the person to whom it applies if the
19 Trust is satisfied that the reason for which the financial
20 assurance was required no longer exists and has given the
21 person on whom the condition was imposed written notice of
22 the lapsing of that condition.
23 74. Condition etc. on approval, request for reconsideration of
24 (1) If the Minister gives an approval subject to a condition or
25 restriction, the applicant may request the Minister to reconsider
26 that condition or restriction.
27 (2) A request under subsection (1) must be made --
28 (a) in writing; and
29 (b) within 28 days of the applicant receiving notice of the
30 Minister's decision.
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1 (3) The Minister may deal with a request under this section by
2 confirming the decision to impose the condition or restriction,
3 by varying or revoking the condition or restriction or by
4 revoking it and substituting another condition or restriction
5 for it.
6 (4) Where the Minister amends a decision to impose a condition or
7 restriction following a request under this section, the Minister
8 must cause notice of the amendment to be --
9 (a) given to each local government and other public
10 authority to which notice was given under section 65(1);
11 and
12 (b) published on the Trust website.
13 75. Correction of approval
14 (1) The Minister may --
15 (a) correct in an approval --
16 (i) a clerical mistake; or
17 (ii) an error arising from an accidental slip or
18 omission; or
19 (iii) a figure which has been miscalculated; or
20 (iv) the misdescription of any person, thing or
21 property;
22 or
23 (b) make an administrative change to the format of an
24 approval which does not alter the obligations of the
25 person to whom the approval is given.
26 (2) Notice of any such correction must be --
27 (a) given to the person to whom the approval was given;
28 and
29 (b) published on the Trust website.
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Development in development control area Part 5
s. 76
1 76. Variation or extension of approval
2 (1) The Minister may, on the application of a person to whom an
3 approval was given --
4 (a) authorise a minor variation to the approval; or
5 (b) extend the time for which the approval remains in force
6 under section 72(3) by a further period of not more than
7 12 months.
8 (2) An extension of time under subsection (1) must not be given
9 more than once in respect of any approval.
10 (3) The Minister must give notice of the proposal to authorise a
11 variation or extend the time for which an approval of a
12 development remains in force to each local government and
13 other public authority consulted in respect of the development
14 under section 65 and invite them to comment on the proposal.
15 (4) An invitation to make comments on the proposal --
16 (a) must specify a period of at least 14 days within which
17 comments may be made; and
18 (b) may specify the form or manner, or both, in which
19 comments may be made.
20 (5) Any local government or other public authority invited to make
21 comments may do so --
22 (a) in the form and manner specified (if any) in the
23 invitation; and
24 (b) within the period specified in the invitation.
25 (6) The Minister must consider all submissions received under
26 subsection (5) before making a decision for the purposes of
27 subsection (1).
28 77. Approvals by Trust
29 (1) The regulations may prescribe classes of developments that the
30 Trust is authorised to approve under this section.
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Part 5 Development in development control area
s. 78
1 (2) Where the Trust is authorised under subsection (1) to approve a
2 development, it may resolve to do so and in that case --
3 (a) sections 65 and 66 apply in relation to the development
4 application; and
5 (b) section 67 applies as if references in that section to the
6 Trust were references to the General Manager; and
7 (c) section 68 applies as if references in that section --
8 (i) to the Trust were references to the General
9 Manager; and
10 (ii) to the Minister were references to the Trust;
11 and
12 (d) sections 69 to 71 do not apply in relation to the
13 development application; and
14 (e) the Trust may, subject to section 72(2), exercise any
15 power described in section 72(1), (3) or (4).
16 (3) Before exercising a power described in section 72(1) the Trust
17 must consider the report received by it under section 68 as
18 applied by this section and any other matter that the Trust
19 considers relevant.
20 (4) An approval by the Trust under this section comes into effect, if
21 it is not revoked under section 79, on the day after the period in
22 which it may be revoked under section 79(1) has elapsed.
23 (5) For the purposes of this Part an approval by the Trust under this
24 section is to be taken to be the approval of the Minister.
25 (6) Sections 74, 75 and 76 apply to an approval given under this
26 section as if references to the Minister were references to the
27 Trust.
28 78. Trust must give s. 77 decisions etc. to Minister
29 (1) The Trust must give to the Minister a copy of each decision it
30 makes under section 77 in relation to an application.
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Development in development control area Part 5
s. 79
1 (2) The report must be accompanied by the report received by the
2 Trust under section 68 in relation to the application.
3 79. Minister may revoke Trust's decision etc.
4 (1) The Minister may, within 14 days of receiving a copy of a
5 decision under section 78(1), revoke the decision.
6 (2) Written notice of the revocation must be --
7 (a) given to --
8 (i) the Trust; and
9 (ii) the applicant; and
10 (iii) each local government and other public authority
11 to which notice was given under section 67; and
12 (iv) each person who made a submission under
13 section 67;
14 and
15 (b) published on the Trust website and in any other way the
16 Trust considers appropriate.
17 (3) If the Minister revokes a decision under this section --
18 (a) the Trust must give to the Minister the report,
19 submissions and comments given to the Trust in respect
20 of the application under section 68 as applied by
21 section 77(2)(c); and
22 (b) the Minister must deal with the application under
23 section 69; and
24 (c) sections 70 to 76 apply accordingly as if the Trust had
25 not been authorised to approve the application.
26 80. False statements in applications
27 A person must not, in connection with an application under this
28 Part, make a statement or give any information which the person
29 knows is false in a material particular.
30 Penalty: a fine of $10 000.
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Part 5 Development in development control area
s. 81
1 81. Refusal etc. of development, compensation for injurious
2 affection for etc.
3 (1) In this section --
4 owner means a person registered as a proprietor of freehold
5 land.
6 (2) If an application for approval is made under this Part by the
7 owner of land, other than a public authority, and the Minister --
8 (a) refuses approval of a development; or
9 (b) approves a development in a modified form; or
10 (c) approves a development (including an approval referred
11 to in paragraph (b)) subject to any condition or
12 restriction that is unacceptable to the applicant,
13 the owner may obtain compensation for injurious affection from
14 the Trust.
15 (3) If a claim for compensation may be brought under
16 subsection (2), no claim lies under the Planning and
17 Development Act 2005 section 177(1)(b).
18 (4) A claim under subsection (2) must be made to the Trust in the
19 prescribed form not later than 6 months after the day on which
20 the Minister's decision is notified to the applicant.
21 (5) Compensation is not payable under this section if payment
22 has been made for the same, or substantially the same, injurious
23 affection under the Planning and Development Act 2005
24 section 177(1)(a).
25 (6) The amount of compensation under subsection (2) must not
26 exceed the difference between --
27 (a) the value of the land as affected by the Minister's
28 decision; and
29 (b) the value of the land as not so affected,
30 as at the time when the Minister's decision is made.
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Development in development control area Part 5
s. 81
1 (7) Any question as to whether any land is injuriously affected and
2 as to the amount and manner of payment of the sum which is to
3 be paid as compensation under this section is to be determined
4 by arbitration under and in accordance with the Commercial
5 Arbitration Act 2012, unless the parties agree on some other
6 method of determination.
7 (8) Instead of paying compensation, the Trust may purchase the
8 land affected by the Minister's decision.
9 (9) The Planning and Development Act 2005 sections 180, 187 and
10 188 apply for the purposes of this section, with all necessary
11 changes, as if references in that section to the Commission were
12 references to the Trust.
13 (10) This section applies to a decision of the Trust under section 77
14 as if references in this section to the Minister were references to
15 the Trust.
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Part 6 Estuary protection notices
s. 82
1 Part 6 -- Estuary protection notices
2 82. Issue of notice, General Manager may recommend
3 (1) If the General Manager believes on reasonable grounds that, to
4 protect or enhance the ecological and community benefits and
5 amenity of the Estuary --
6 (a) action by an owner, or both an owner and an occupier,
7 of land in the catchment area is required; or
8 (b) an owner, or both an owner and an occupier, of land in
9 the catchment area should refrain from action on that
10 land,
11 the General Manager may recommend to the Trust that a estuary
12 protection notice be issued in relation to that action.
13 (2) The recommendation must be accompanied by a report setting
14 out --
15 (a) the reasons for the recommendation; and
16 (b) the action proposed to be required or restrained under
17 the estuary protection notice; and
18 (c) the person or persons to whom it is proposed to give the
19 notice.
20 (3) Before making a recommendation to the Trust the General
21 Manager must give each person to whom it is proposed to give
22 the estuary protection notice --
23 (a) a draft of the report referred to in subsection (2); and
24 (b) a reasonable opportunity to show cause in writing why
25 the recommendation should not be made.
26 (4) An opportunity is not a reasonable opportunity for the purposes
27 of subsection (3) unless the person is informed in writing of the
28 right to show cause under that subsection not less than 42 days
29 before the day on which the General Manager makes the
30 recommendation.
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Estuary protection notices Part 6
s. 83
1 83. Notice, issue of by Trust and content of
2 (1) The Trust may issue a estuary protection notice if, after
3 considering the report and recommendation made under
4 section 82 and giving each person to whom it is proposed to
5 give the estuary protection notice a reasonable opportunity to
6 show cause in writing why the estuary protection notice should
7 not be issued, it is satisfied that the notice should be issued.
8 (2) An opportunity is not a reasonable opportunity for the purposes
9 of subsection (1) unless the person is informed in writing of the
10 right to show cause under that subsection not less than 42 days
11 before the day on which the Trust issues the estuary protection
12 notice.
13 (3) A estuary protection notice --
14 (a) must be in writing;
15 (b) must specify --
16 (i) the name and address of each person to whom it
17 is given; and
18 (ii) the purpose for which it is given;
19 (c) may impose any requirement reasonably required for the
20 purpose for which the notice is given including --
21 (i) a requirement that each or any one or more of the
22 persons on whom the notice is binding
23 discontinue, or not commence, a specified
24 activity indefinitely or for a specified period or
25 until further notice from the Trust;
26 (ii) a requirement that each or any one or more of the
27 persons on whom the notice is binding not carry
28 on a specified activity except at specified times
29 or subject to specified conditions;
30 (iii) a requirement that each or any one or more of the
31 persons on whom the notice is binding take
32 specified action in a specified way, and within a
33 specified period;
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s. 84
1 (iv) a requirement that each or any one or more of the
2 persons on whom the notice is binding prepare,
3 in accordance with specified requirements and to
4 the satisfaction of the Trust, a plan of action to
5 protect and enhance the ecological and
6 community benefits and amenity of the Estuary,
7 or part of the Estuary;
8 (v) a requirement that each or any one or more of the
9 persons on whom the notice is binding comply
10 with such a plan of action to the satisfaction of
11 the Trust;
12 (vi) a requirement that each or any one or more of the
13 persons on whom the notice is binding undertake
14 specified tests or monitoring of the land;
15 (vii) a requirement that each or any one or more of the
16 persons on whom the notice is binding furnish to
17 the Trust specified results or reports;
18 (viii) a requirement that each or any one or more of the
19 persons on whom the notice is binding appoint or
20 engage a person with specified qualifications to
21 prepare a plan or report or to undertake tests or
22 monitoring required by the notice.
23 84. Service of notice
24 A estuary protection notice must be given to --
25 (a) each owner of the land in respect of which it is issued;
26 and
27 (b) each occupier of the land in respect of which it is issued
28 who --
29 (i) is not the owner of the land; and
30 (ii) is required to take, or refrain from taking, action
31 under the estuary protection notice.
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Estuary protection notices Part 6
s. 85
1 85. Who a notice binds
2 Subject to sections 91 and 92 and the outcome of any
3 application for review, a estuary protection notice is binding on
4 each person --
5 (a) to whom it is given; and
6 (b) on whom it is binding in accordance with section 89.
7 86. Memorial on land title of notice
8 (1) In this section --
9 register means to register under the Registration of Deeds
10 Act 1856 or Transfer of Land Act 1893, as the case requires;
11 Registrar means the Registrar of Titles under the Transfer of
12 Land Act 1893 or the Registrar of Deeds and Transfers under
13 the Registration of Deeds Act 1856, as the case requires;
14 responsible authority has the meaning given to that term in the
15 Environmental Protection Act 1986;
16 scheme has the meaning given to that term in the Environmental
17 Protection Act 1986.
18 (2) If a estuary protection notice is issued in relation to an activity
19 carried out on land, or requires a person to take action on or in
20 relation to land, the General Manager may lodge with the
21 Registrar a memorial of the estuary protection notice in respect
22 of the land.
23 (3) The Registrar, on payment of any relevant fee, must register the
24 memorial against the relevant land.
25 (4) If the estuary protection notice is revoked under section 91 the
26 General Manager must give notice to the Registrar that the
27 memorial is to be withdrawn and the Registrar, on payment of
28 any relevant fee, must register the withdrawal of the memorial
29 in the appropriate manner.
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s. 87
1 (5) A memorial, and notice that a memorial is to be withdrawn, are
2 each to be in a form approved by the Registrar.
3 (6) If a memorial is registered under this section then --
4 (a) the Western Australian Planning Commission must not
5 approve under the Planning and Development Act 2005
6 section 135 the subdivision of that land, or the
7 amalgamation of that land with any other land; and
8 (b) a responsible authority must not grant approval under a
9 scheme for any proposed development of that land,
10 without seeking, and taking into account, the advice of
11 the Trust as to the suitability of the land for the
12 development.
13 (7) A memorial registered under this section has effect until it is
14 withdrawn.
15 87. Owner etc. of land subject to s. 86 memorial, duties of if
16 land changes ownership etc.
17 While a memorial of a estuary protection notice remains
18 registered under section 86, each owner or occupier of the land
19 bound by the estuary protection notice must, when that person
20 ceases to be an owner or occupier of the land, notify in
21 writing --
22 (a) the Trust of the fact that the person has ceased to be the
23 owner or occupier of the land, and of the name and
24 address of each person who succeeds that person in the
25 ownership or occupation or both, as the case requires, of
26 that land; and
27 (b) each person who succeeds that person in the ownership
28 or occupation or both, as the case requires, of that land
29 of the content of the estuary protection notice and of the
30 fact that the estuary protection notice is binding on that
31 person.
32 Penalty: a fine of $5 000.
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Estuary protection notices Part 6
s. 88
1 88. Memorial under s. 86, General Manager's duties to give
2 notice of etc.
3 (1) In this section --
4 responsible authority and scheme have the meanings given to
5 those terms in section 86(1).
6 (2) As soon as is practicable after the memorial is registered or
7 withdrawn under section 86 written notice that the memorial is
8 registered or withdrawn, with a copy of the memorial or notice
9 to withdraw the memorial attached, as is relevant, must be given
10 by the General Manager to --
11 (a) each owner of the relevant land; and
12 (b) the Western Australian Planning Commission; and
13 (c) each local government which has located within its
14 district all, or part, of the relevant land; and
15 (d) each responsible authority the scheme of which applies
16 to all, or part, of the relevant land.
17 89. Notice subject of s. 86 memorial binds new owners of land
18 (1) Subject to subsection (2) a estuary protection notice --
19 (a) in respect of which a memorial under section 86 is
20 registered; and
21 (b) which is binding on the owner of the land,
22 becomes binding on each person who becomes an owner of the
23 land at the time that the person becomes such an owner.
24 (2) A estuary protection notice in respect of which a memorial
25 under section 86 is registered does not become binding on a
26 person who becomes an owner of the land because the person is
27 a mortgagee in possession until 45 days after the day on which
28 the person became an owner of the land.
29 90. Financial assurance requirement, inclusion of in notice
30 (1) The Trust may in a estuary protection notice require each or any
31 one or more of the persons on whom the estuary protection
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Part 6 Estuary protection notices
s. 91
1 notice is binding to provide a financial assurance of the kind
2 specified in the notice within a time specified in the notice.
3 (2) A financial assurance may be required to be given in one or
4 more of the following forms --
5 (a) a bank guarantee;
6 (b) a bond;
7 (c) an insurance policy;
8 (d) another form of security that the Trust specifies.
9 (3) The estuary protection notice may provide for the procedures
10 under which the financial assurance may be called on or used
11 under section 110.
12 (4) The amount of the financial assurance --
13 (a) must be specified in the estuary protection notice; and
14 (b) must not exceed an amount that, in the opinion of the
15 Trust, represents a reasonable estimate of the total likely
16 costs that might be incurred by the Trust in taking action
17 under section 94 in relation to that estuary protection
18 notice.
19 (5) A requirement to provide a financial assurance lapses and no
20 longer binds the person to whom it applies if the Trust is
21 satisfied that the reason for which the financial assurance was
22 required no longer exists and has given the person on whom the
23 condition was imposed written notice of the lapsing of that
24 condition.
25 91. Amending or cancelling notice
26 (1) The Trust may, by written notice, cancel a estuary protection
27 notice or, subject to subsections (2) and (3), amend it --
28 (a) by extending the period within which a requirement
29 contained in the estuary protection notice must be
30 complied with if the Trust is satisfied that the
31 circumstances of the case justify such an extension; or
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Estuary protection notices Part 6
s. 92
1 (b) by revoking or amending any requirement contained in
2 the estuary protection notice.
3 (2) The Trust, before exercising the power of amendment conferred
4 by subsection (1), must give the person on whom the estuary
5 protection notice is binding a reasonable opportunity to show
6 cause in writing why that power should not be exercised.
7 (3) An opportunity is not a reasonable opportunity for the purposes
8 of subsection (2) unless the person is informed in writing of the
9 right to show cause under that subsection not less than 21 days
10 before the day on which the Trust exercises the power in
11 question.
12 92. Review by SAT of requirement in notice etc.
13 (1) A person on whom an estuary protection notice is binding who
14 is aggrieved by --
15 (a) a requirement contained in the notice; or
16 (b) an amendment contained in a notice given to that person
17 under section 91(1),
18 may apply to the State Administrative Tribunal for a review of
19 the requirement or amendment.
20 (2) The commencement of a proceeding for the review of a
21 requirement or amendment stays the operation of the
22 requirement or amendment until the application is determined.
23 93. Contravening notice, offence
24 A person required to take, or refrain from taking, action under a
25 estuary protection notice must ensure that the requirements of
26 the notice are complied with within such time as is specified in
27 the notice.
28 Penalty:
29 (a) a fine of $50 000;
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Part 6 Estuary protection notices
s. 94
1 (b) for each separate and further offence committed by
2 the person under the Interpretation Act 1984
3 section 71, a fine of $5 000.
4 94. Contravention of notice, Trust's powers in case of
5 (1) If a person --
6 (a) is convicted of an offence under section 93 in respect of
7 a estuary protection notice; or
8 (b) in the opinion of the Trust, has not complied with a
9 requirement of a estuary protection notice within such
10 time as is specified in the notice, then, subject to
11 subsection (2),
12 the Trust may take such action as is necessary under section 95
13 to ensure that the requirements of the notice are complied with.
14 (2) Before taking action under section 95 in the circumstances
15 referred to in subsection (1)(b), the Trust must give to the
16 person written notice --
17 (a) stating that in the opinion of the Trust the person has not
18 complied with the requirement, or requirements, of the
19 estuary protection notice which is, or are, specified in
20 the notice under this subsection; and
21 (b) giving details of the proposed action.
22 95. Entry to land etc. to ensure compliance with notice, powers
23 as to
24 (1) A person taking action on behalf of the Trust under this section,
25 may enter on any land in respect of which the Trust is
26 authorised to take action under section 94(1) and on that land
27 may take such action as the Trust considers necessary to ensure
28 that the requirements of the relevant estuary protection notice
29 are complied with.
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Estuary protection notices Part 6
s. 95
1 (2) Before exercising a power of entry under subsection (1) in
2 respect of any land which is occupied by a person or persons the
3 Trust must give not less than 14 days written notice to the
4 occupier specifying --
5 (a) that a requirement of a estuary protection notice,
6 described in or attached to the notice referred to in this
7 subsection, has not been complied with and the Trust
8 must take action to ensure that the requirements of the
9 notice are complied with; and
10 (b) the part of the land on which entry is to be made; and
11 (c) the actions proposed to be taken on that part of that land
12 to comply with the requirements of the notice.
13 (3) An inspector may assist the Trust to take any action under this
14 section if the Trust so requests.
15 (4) If action is taken under subsection (1), the Trust may recover the
16 reasonable costs incurred in taking the action, and interest at the
17 prescribed rate, from a person on whom the estuary protection
18 notice is binding, by action in a court of competent jurisdiction
19 as a debt due to the Trust.
page 69
Peel-Harvey Catchment Management Bill 2014
Part 7 Investigation and enforcement
Division 1 Preliminary
s. 96
1 Part 7 -- Investigation and enforcement
2 Division 1 -- Preliminary
3 96. Terms used
4 In this Part, unless the contrary intention appears --
5 dwelling means --
6 (a) a building, structure or tent, or part of a building,
7 structure or tent, that is ordinarily used for human
8 habitation; or
9 (b) a mobile home,
10 and it does not matter that it is uninhabited from time to time;
11 entry warrant means a warrant issued under Division 3;
12 investigative purposes means the purposes set out in section 97;
13 mobile home means a vehicle --
14 (a) that is ordinarily used for human habitation; and
15 (b) that is permanently or semi-permanently stationary in a
16 single location;
17 place means any land, premises, vehicle, or a part of any land,
18 premises or vehicle;
19 vehicle means any thing capable of transporting people or things
20 by road, rail or water, including a hovercraft, and it does not
21 matter how the thing is moved or propelled.
22 Division 2 -- Investigative powers
23 97. Purposes for which investigation may be carried out
24 An investigation may be carried out for any or all of the
25 following purposes --
26 (a) to ascertain whether the provisions of the Act, the
27 regulations or provisions listed in Schedule 6 have been
28 or are being complied with; or
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Investigation and enforcement Part 7
Investigative powers Division 2
s. 98
1 (b) to ascertain whether any requirement contained in a
2 estuary protection notice has been or is being complied
3 with; or
4 (c) to ascertain whether there are reasonable grounds to
5 recommend under section 82 that a estuary protection
6 notice be issued, and to obtain evidence for the
7 preparation of a report under that section.
8 98. Personal details of suspect, powers to obtain
9 (1) In this section --
10 personal details, in relation to a person, means --
11 (a) the person's full name;
12 (b) the person's date of birth;
13 (c) the address of where the person is living;
14 (d) the address of where the person usually lives.
15 (2) If an inspector reasonably suspects that a person whose personal
16 details are unknown to the inspector has committed or is
17 committing or is about to commit an offence against a provision
18 of the Act, the regulations or a provision listed in Schedule 6 the
19 inspector may request the person to give the inspector any or all
20 of the person's personal details.
21 (3) An inspector must not exercise a power under subsection (2) in
22 relation to a provision listed in Schedule 6 unless the inspector
23 reasonably suspects that the offence has been committed, is
24 being committed or is about to be committed in the Estuary.
25 (4) If an inspector reasonably suspects that a personal detail given
26 by a person in response to a request is false, the inspector may
27 request the person to produce evidence of the correctness of the
28 detail.
29 (5) A person who, without reasonable excuse, does not comply with
30 a request made under subsection (2) or (4) commits an offence.
31 Penalty: a fine of $10 000.
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Part 7 Investigation and enforcement
Division 2 Investigative powers
s. 99
1 (6) For the purposes of subsection (5), the fact that an inspector did
2 not comply with section 32(2) as soon as practicable is a
3 reasonable excuse.
4 (7) A person who, in response to a request made under
5 subsection (2) or (4), gives any false personal details commits
6 an offence.
7 Penalty: a fine of $10 000.
8 99. Entry etc. powers
9 (1) For investigative purposes an inspector may do all or any of the
10 following --
11 (a) at any time stop, detain, board or enter a vehicle (except
12 a vehicle that is a mobile home);
13 (b) at any time enter a place that is not a dwelling;
14 (c) at any time enter a dwelling with the consent of the
15 person apparently in charge of the dwelling;
16 (d) at any time enter a place in accordance with an entry
17 warrant;
18 (e) take onto or into the place any assistants, contractors,
19 vehicles, instruments, equipment or materials that are
20 needed to carry out the investigation;
21 (f) remain on or in the place, with the assistants,
22 contractors, vehicles, instruments, equipment or
23 materials, for as long as is necessary to complete the
24 investigation;
25 (g) take samples or specimens of water, soil, rocks and
26 plants;
27 (h) survey and mark out land for any purpose relevant to
28 carrying out the investigation;
29 (i) photograph or film a place, vehicle and anything in or on
30 the place or vehicle.
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Investigation and enforcement Part 7
Investigative powers Division 2
s. 100
1 (2) An inspector must not exercise a power under this section in
2 relation to a provision listed in Schedule 6 unless the place or
3 vehicle is in the Estuary.
4 (3) An inspector may direct a person who is or appears to be in
5 charge of a place or vehicle to give the inspector any assistance
6 that the inspector reasonably needs to carry out the inspector's
7 functions in relation to that place or vehicle.
8 (4) An inspector must not exercise a power under subsection (1)(b)
9 for a purpose set out in section 97(b) or (c) without the authority
10 of the General Manager in the particular case.
11 100. Records, powers to obtain
12 (1) In this section --
13 relevant record means a record that --
14 (a) is required to be kept under this Act; or
15 (b) contains information that is relevant to a contravention
16 of this Act.
17 (2) For investigative purposes an inspector may do all or any of the
18 following --
19 (a) direct a person who has the custody or control of a
20 record to give the inspector the record or a copy of it;
21 (b) direct a person who has the custody or control of a
22 record, computer or thing to make or print out a copy of
23 the record or to operate the computer or thing;
24 (c) operate a computer or other thing on which a record is or
25 may be stored;
26 (d) direct a person who is or appears to be in charge of a
27 record that the inspector suspects on reasonable grounds
28 is a relevant record to give the inspector a translation,
29 code, password or other information necessary to gain
30 access to or interpret and understand the record;
31 (e) take extracts from or make copies of, or download or
32 print out, or photograph or film, a record that the
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Part 7 Investigation and enforcement
Division 3 Entry warrants
s. 101
1 inspector suspects on reasonable grounds is a relevant
2 record;
3 (f) seize and remove, for no more than 7 days, a computer
4 or other thing on which a record is or may be stored;
5 (g) take away a record that the inspector suspects on
6 reasonable grounds is a relevant record and retain it for
7 as long as is necessary for the purposes of this Act;
8 (h) take reasonable measures to secure or protect a record,
9 or computer or other thing on which a record is or may
10 be stored, against damage or unauthorised removal or
11 interference.
12 (3) If an inspector seizes or is given a record, the inspector must if
13 practicable allow a person who otherwise has custody or control
14 of it to have reasonable access to it.
15 101. Exercise of power may be recorded
16 An inspector may record the exercise of a power under this
17 Division, including by making an audiovisual recording.
18 102. Force and assistance, use of
19 (1) An inspector may use assistance and force that is reasonably
20 necessary in the circumstances when carrying out a function
21 under this Act.
22 (2) However, if the use of reasonable force is likely to cause
23 significant damage to property, the inspector is not entitled to
24 use force without the authority of the General Manager in the
25 particular case.
26 Division 3 -- Entry warrants
27 103. Entry warrant, who may apply for
28 (1) Subject to subsection (3), an inspector may apply to a justice for
29 an entry warrant authorising the entry of a place for
30 investigative purposes.
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Entry warrants Division 3
s. 104
1 (2) An inspector may apply for an entry warrant for a place even if,
2 under Division 2, the inspector may enter the place without an
3 entry warrant.
4 (3) An inspector must not, without the authority of the General
5 Manager in the particular case, apply for an entry warrant
6 authorising the entry of a place for a purpose set out in
7 section 97(b) or (c).
8 (4) The application must be made in accordance with section 104
9 and must include the information prescribed (if any).
10 104. Applications for entry warrant, how to be made
11 (1) In this section --
12 application means an application for an entry warrant;
13 remote communication means any way of communicating at a
14 distance including by telephone, fax, email and radio.
15 (2) A reference in this section to making an application includes a
16 reference to giving information in support of the application.
17 (3) An application must be made in person before a justice
18 unless --
19 (a) the warrant is needed urgently; and
20 (b) the applicant reasonably suspects that a justice is not
21 available within a reasonable distance of the applicant,
22 in which case --
23 (c) it may be made to the justice by remote communication;
24 and
25 (d) the justice must not grant it unless satisfied about the
26 matters in paragraphs (a) and (b).
27 (4) An application must be made in writing unless --
28 (a) the application is made by remote communication; and
29 (b) it is not practicable to send the justice written material,
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Division 3 Entry warrants
s. 104
1 in which case --
2 (c) it may be made orally; and
3 (d) the justice must make a written record of the application
4 and any information given in support of it.
5 (5) An application must be made on oath unless --
6 (a) the application is made by remote communication; and
7 (b) it is not practicable for the justice to administer an oath
8 to the applicant,
9 in which case --
10 (c) it may be made in an unsworn form; and
11 (d) if the justice issues an entry warrant, the applicant must
12 as soon as is practicable send the justice an affidavit
13 verifying the application and any information given in
14 support of it.
15 (6) If on an application made by remote communication a justice
16 issues an entry warrant, the justice must if practicable send a
17 copy of the original warrant to the applicant by remote
18 communication, but otherwise --
19 (a) the justice must send the applicant by remote
20 communication any information that must be set out in
21 the warrant; and
22 (b) the applicant must complete a form of warrant with the
23 information received and give the justice a copy of the
24 form as soon as is practicable after doing so; and
25 (c) the justice must attach the copy of the form to the
26 original warrant and any affidavit received from the
27 applicant and make them available for collection by the
28 applicant.
29 (7) The copy of the original warrant sent, or the form of the warrant
30 completed, as the case may be, under subsection (6) has the
31 same force and effect as the original warrant.
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Enforcement provisions Division 4
s. 105
1 (8) If an applicant contravenes subsection (5)(d) or (6)(b), any
2 evidence obtained under the entry warrant is not admissible in
3 proceedings in a court.
4 105. Entry warrant, issue of
5 (1) A justice may issue an entry warrant if satisfied that it is
6 necessary for an inspector to enter a place for investigative
7 purposes.
8 (2) An entry warrant must set out --
9 (a) a reasonably particular description of the place to which
10 it relates; and
11 (b) a reasonably particular description of the investigative
12 purpose for which entry to the place is required; and
13 (c) the period in which it may be executed; and
14 (d) the date and time when it was issued; and
15 (e) any other matter prescribed.
16 106. Entry warrant, effect of
17 (1) An entry warrant has effect according to its content.
18 (2) An entry warrant may be executed by any inspector.
19 Division 4 -- Enforcement provisions
20 107. Obstructing or impersonating inspector, offence
21 A person commits an offence if the person --
22 (a) without lawful excuse, wilfully obstructs, hinders or
23 resists an inspector who is carrying out a function under
24 this Act;
25 (b) without lawful excuse, wilfully obstructs, hinders or
26 resists a person assisting an inspector who is carrying
27 out a function under this Act;
28 (c) without lawful excuse, does not comply with a direction
29 under section 99(3) or 100;
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Division 4 Enforcement provisions
s. 108
1 (d) wilfully makes a false statement to, or misleads, an
2 inspector who is carrying out a function under this Act;
3 (e) impersonates an inspector.
4 Penalty: a fine of $10 000.
5 108. Illegal development etc., Trust's powers as to
6 (1) The Trust may --
7 (a) by notice in writing served on a person who is --
8 (i) undertaking any development in contravention of
9 section 62; or
10 (ii) reclaiming or filling an area in contravention of
11 section 63,
12 direct that person to stop doing so; or
13 (b) by notice in writing served on a person who has --
14 (i) undertaken any development in contravention of
15 section 62; or
16 (ii) reclaimed or filled an area in contravention of
17 section 63,
18 direct the person within such period, being not less than
19 21 days after the service of the notice, as is specified in
20 the notice, to remove, pull down, take up, or alter any
21 development, reclamation or filling undertaken in
22 contravention of that section and restore the land as
23 nearly as practicable to its condition immediately before
24 the development started, to the satisfaction of the Trust,
25 or may by one notice give both of such directions to a person.
26 (2) A person on whom a notice is served containing a direction
27 under subsection (1)(b) may, within the period specified in the
28 notice, apply to the State Administrative Tribunal for a review
29 of the direction.
30 (3) A notice containing a direction under subsection (1)(b) is
31 suspended as to that direction pending the determination of the
32 application for review.
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Enforcement provisions Division 4
s. 109
1 (4) A person must comply with a notice given to the person under
2 this section.
3 Penalty:
4 (a) a fine of $50 000;
5 (b) for each separate and further offence committed by
6 the person under the Interpretation Act 1984
7 section 71, a fine of $5 000.
8 (5) If a person fails to comply with a notice given to the person
9 under subsection (1)(b), the Trust may itself remove, pull down,
10 take up or alter the development and may recover from the
11 person in any court of competent jurisdiction the costs incurred
12 by it in so doing.
13 109. Abandoned etc. property, powers as to
14 (1) Subject to this section, the Trust may take possession of any
15 property that is on land or waters in the Estuary if --
16 (a) the Trust has reasonable grounds to believe that the
17 property has been abandoned, is derelict or constitutes a
18 danger to persons, property or the environment; or
19 (b) a notice under subsection (2)(b) relating to that property
20 has not been complied with.
21 (2) Before it exercises the power in subsection (1)(a) in relation to
22 property that does not constitute a danger to persons, property or
23 the environment, the Trust must --
24 (a) make reasonable inquiry as to the identity and
25 whereabouts of the person who is or has been the owner
26 of the property; and
27 (b) if the identity and whereabouts of that person become
28 known to it give notice to that person requiring that
29 person to remove the property within the time specified
30 in the notice.
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Division 4 Enforcement provisions
s. 110
1 (3) A person to whom a notice is given under subsection (2)(b) must
2 comply with the notice.
3 Penalty: a fine of $10 000.
4 (4) Any cost incurred by the Trust under this section is a debt due to
5 the Trust by a person who is shown to have been the owner, or
6 in the case of abandoned property the former owner, at the time
7 of removal and is recoverable in a court of competent
8 jurisdiction.
9 (5) Subject to subsections (6), (7) and (8) any property removed
10 under this section becomes the property of the Trust and may be
11 disposed of as it thinks fit.
12 (6) If the Trust's estimate of the value of the property exceeds the
13 costs referred to in subsection (4) together with the costs
14 associated with the sale of the same, the Trust must sell the
15 property, and after payment of all of its costs, hold the proceeds
16 in accordance with subsection (7).
17 (7) The proceeds of sale referred to in subsection (6) become part of
18 the funds of the Trust at the expiration of 12 months from the
19 date of the sale unless within that time a person proves to the
20 satisfaction of the Trust that that person is entitled to them or
21 any part of them, in which case the Trust must pay the proceeds
22 or part of the proceeds in accordance with that entitlement.
23 (8) Despite subsections (5), (6) and (7), the Trust must give
24 possession of the property to any person who, before the Trust
25 exercises a power under subsection (5) or (6), proves that that
26 person is entitled to the same and who pays to the Trust all costs
27 incurred by it under this section.
28 110. Trust's costs under s. 94, 108(5) or 109, recovering in case of
29 financial assurance condition etc.
30 (1) In this section --
31 financial assurance means a financial assurance provided
32 pursuant to a condition imposed under section 73 or a
33 requirement under section 90.
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Enforcement provisions Division 4
s. 110
1 (2) This section applies if the Trust incurs costs in taking action
2 under section 94, 108(5) or 109 and the person from whom
3 those costs are or would be recoverable under this Act (the
4 responsible person) is a person who has provided a financial
5 assurance.
6 (3) The Trust may recover the reasonable costs of taking the action
7 by making a claim on or realising the financial assurance or part
8 of it.
9 (4) Before making the claim on or realising the financial assurance
10 or part of it, the Trust must make reasonable endeavours to give
11 the responsible person a written notice under this section.
12 (5) The written notice must --
13 (a) state details of the action taken; and
14 (b) state the amount of the financial assurance to be claimed
15 or realised; and
16 (c) invite the responsible person to make representations in
17 writing to the Trust to show why the financial assurance
18 should not be claimed or realised as proposed; and
19 (d) state the period (at least 30 days after the notice is given
20 to the responsible person) within which representations
21 may be made.
22 (6) After the end of the period stated in the notice, the Trust must
23 consider any representations in writing made by the responsible
24 person.
25 (7) If the Trust decides to make a claim on or realise the financial
26 assurance or part of it, the Trust must make reasonable
27 endeavours to give written notice to the responsible person of
28 the decision and the reasons for the decision.
29 (8) Any costs recovered under this section become part of the funds
30 of the Trust.
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Division 4 Enforcement provisions
s. 110
1 (9) Subject to subsection (11), a financial assurance may be called
2 on and used, despite and without affecting --
3 (a) any liability of the responsible person to any penalty for
4 an offence for a contravention to which the financial
5 assurance relates; and
6 (b) any other action that might be taken or is required to be
7 taken in relation to any contravention or other
8 circumstances to which the financial assurance relates.
9 (10) If the amount of the financial assurance claimed or realised does
10 not cover all the costs concerned, the Trust may recover the
11 excess from the responsible person under section 94, 108(5) or
12 109, as the case requires.
13 (11) The Trust is not entitled --
14 (a) to recover costs under section 94, 108(5) or 109 if a
15 financial assurance has been called on and used in
16 respect of those costs (except to the extent that the
17 financial assurance does not cover all the costs); or
18 (b) to call on or use a financial assurance in respect of costs
19 which have been recovered under section 94, 108(5) or
20 109.
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Legal proceedings Part 8
General matters Division 1
s. 111
1 Part 8 -- Legal proceedings
2 Division 1 -- General matters
3 111. Prosecutions, commencing etc. and averments in
4 (1) A prosecution for an offence against this Act may be
5 commenced and conducted by --
6 (a) a police officer; or
7 (b) a person authorised in writing by the Trust for the
8 purpose of the proposed proceedings.
9 (2) In any proceedings the authority of any person to prosecute for
10 an offence is to be presumed unless the contrary is proved.
11 (3) If in a charge of an offence against this Act there is an averment
12 that an act occurred within the catchment area, the development
13 control area or the Estuary, the court, on the act being proved, is
14 to presume in the absence of proof to the contrary that the act
15 occurred within that area.
16 112. Time limit for prosecuting
17 (1) A prosecution for an offence under this Act must be commenced
18 within 24 months after the date on which the offence is alleged
19 to have been committed.
20 (2) Despite subsection (1), if a prosecution notice alleging an
21 offence under this Act specifies the day on which the evidence
22 of the alleged offence first came to the attention of a person
23 authorised to institute the prosecution under section 111(1) --
24 (a) the prosecution may be made within 24 months after that
25 day; and
26 (b) the prosecution notice need not contain particulars of the
27 day on which the offence is alleged to have been
28 committed.
29 (3) The day on which evidence first came to the attention of a
30 person authorised to institute a prosecution under section 111(1)
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Part 8 Legal proceedings
Division 1 General matters
s. 113
1 is, in the absence of evidence to the contrary, the day specified
2 in the prosecution notice.
3 113. Offence by body corporate, liability of directors etc. in case
4 of and proof of
5 (1) If a body corporate commits an offence under this Act or the
6 regulations, each person who is a director or who is concerned
7 in the management of the body corporate is taken to have also
8 committed the same offence unless the person proves that --
9 (a) the person did not know, and could not reasonably be
10 expected to have known, that the offence was being
11 committed; or
12 (b) the person --
13 (i) was not in a position to influence the conduct of
14 the body corporate in relation to the commission
15 of the offence; or
16 (ii) being in such a position, used all due diligence
17 and reasonable precautions to prevent the
18 commission of the offence;
19 or
20 (c) had it been prosecuted, the body corporate would not
21 have been found guilty of the offence by reason of being
22 able to establish a defence available to it under this Act.
23 (2) Under this section a person may be proceeded against and
24 convicted of an offence whether or not the body corporate has
25 been proceeded against or convicted in respect of the
26 commission of the offence.
27 (3) Nothing in this section prejudices or affects any liability
28 imposed on a body corporate for an offence committed by the
29 body corporate against this Act or the regulations.
30 (4) Without limiting any other law or practice regarding the
31 admissibility of evidence, evidence that an officer, employee or
32 agent of a body corporate (while acting in his or her capacity as
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Legal proceedings Part 8
Infringement notices Division 2
s. 114
1 such) had, at any particular time, a particular state of mind, is
2 evidence that the body corporate had that state of mind.
3 Division 2 -- Infringement notices
4 114. Terms used
5 In this Division --
6 alleged offender means a person suspected of having committed
7 a prescribed offence;
8 prescribed offence means an offence under this Act, or under
9 any regulations made under this Act, prescribed by the
10 regulations to be an offence for which an infringement notice
11 may be issued.
12 115. Infringement notices
13 (1) In this section --
14 authorised person means a person appointed under
15 subsection (10) to be an authorised person for the purposes of
16 the subsection in which the term is used.
17 (2) An inspector who has reason to believe that a person has
18 committed a prescribed offence may, within 35 days after the
19 offence is alleged to have been committed, give an infringement
20 notice to the alleged offender.
21 (3) An infringement notice must --
22 (a) be in the form prescribed; and
23 (b) contain a description of the alleged offence; and
24 (c) advise that if the alleged offender does not wish to be
25 prosecuted for the alleged offence, the amount of money
26 specified in the notice as being the modified penalty for
27 the offence may be paid to the Trust within a period of
28 28 days after the date of the notice; and
29 (d) inform the alleged offender as to how and where the
30 money may be paid.
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Part 8 Legal proceedings
Division 2 Infringement notices
s. 115
1 (4) In an infringement notice the amount specified as being the
2 modified penalty for the offence referred to in the notice is to be
3 the amount that was the modified penalty prescribed at the time
4 the alleged offence is believed to have been committed.
5 (5) An authorised person may, in a particular case, extend the
6 period of 28 days within which the modified penalty may be
7 paid and the extension may be allowed whether or not the
8 period of 28 days has elapsed.
9 (6) Where the modified penalty specified in an infringement notice
10 has been paid within 28 days or such further time as is allowed
11 and the notice has not been withdrawn, the bringing of
12 proceedings and the imposition of penalties are prevented to the
13 same extent as they would be if the alleged offender had been
14 convicted by a court of, and punished for, the alleged offence.
15 (7) An authorised person may, whether or not the modified penalty
16 has been paid, withdraw an infringement notice by sending to
17 the alleged offender a notice in the prescribed form stating that
18 the infringement notice has been withdrawn.
19 (8) If an infringement notice is withdrawn after the modified
20 penalty has been paid, the amount of the modified penalty must
21 be refunded.
22 (9) Payment of an amount as a modified penalty is not to be
23 regarded as an admission for the purposes of any proceedings,
24 whether civil or criminal.
25 (10) The Trust may, in writing, appoint persons or classes of persons
26 to be authorised persons for the purposes of subsection (5) or
27 (7), but an inspector who gives an infringement notice is not
28 eligible to be an authorised person for the purposes of either of
29 those subsections in relation to that notice.
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Legal proceedings Part 8
Offences under other Acts Division 3
s. 116
1 Division 3 -- Offences under other Acts
2 116. Offences under other Acts (Sch. 6), enforcing under this Act
3 (1) A regulation listed in Schedule 6 may be enforced under this
4 Act as if it were a regulation made under this Act.
5 (2) For the purposes of subsection (1), a regulation listed in
6 Schedule 6 is to be read and construed according to the Act
7 under which it is made, subject to any regulations made under
8 this Act setting out how it is to be read and construed.
9 (3) Without limiting subsection (2), the maximum penalty in
10 respect of a regulation listed in Schedule 6 and enforced under
11 this Act is to be determined by reference to the regulations of
12 which the regulation is a part.
13 (4) Nothing in this Division affects the operation under the Act
14 under which it is made of a regulation listed in Schedule 6.
15 117. Offences under other Acts (Sch. 6), prosecuting
16 A prosecution for an offence committed in the Estuary against a
17 regulation listed in Schedule 6 may be commenced and
18 conducted under section 111.
19 118. Alleged offences under other Acts (Sch. 6), infringement
20 notices for
21 (1) Without limiting section 116(1) a regulation listed in Schedule 6
22 may be prescribed for the purposes of Division 2 as if it were a
23 regulation made under this Act.
24 (2) If an offence against a regulation listed in Schedule 6 is
25 prescribed for the purposes of Division 2, an infringement
26 notice may be issued under section 115 in respect of the offence
27 if the offence is alleged to have been committed in the Estuary.
28 (3) An offence against a regulation listed in Schedule 6 must not be
29 prescribed for the purposes of section 115 unless an
30 infringement notice can be issued in respect of the offence under
31 the Act under which the regulation is made.
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Part 8 Legal proceedings
Division 3 Offences under other Acts
s. 118
1 (4) If a person is issued under another Act with an infringement
2 notice in respect of an offence against a regulation listed in
3 Schedule 6, any infringement notice issued to that person under
4 this Act in respect of the same offence is to be taken to have
5 been withdrawn under section 115(7).
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Peel-Harvey Catchment Foundation Part 9
s. 119
1 Part 9 -- Peel-Harvey Catchment Foundation
2 119. Foundation established
3 (1) The Minister may, by order, establish a body called the
4 Peel-Harvey Catchment Foundation.
5 (2) The Foundation is a body corporate with perpetual succession.
6 (3) Proceedings may be taken by or against the Foundation in its
7 corporate name.
8 120. Council to govern Foundation
9 The Foundation is to have a council which, subject to this Act,
10 is to be the governing body of the Foundation.
11 121. Functions of Foundation
12 The functions of the Foundation are --
13 (a) to attract and retain continuing public interest and
14 financial support for the Trust in the performance of its
15 functions; and
16 (b) to encourage donations to facilitate the performance by
17 the Trust of its functions.
18 122. Powers of Foundation
19 The Foundation has power to do all things necessary or
20 convenient to be done for or in connection with the performance
21 of its functions.
22 123. Peel-Harvey Catchment Foundation Account
23 (1) An account called the Peel-Harvey Catchment Foundation
24 Account is to be established --
25 (a) as an agency special purpose account under the
26 Financial Management Act 2006 section 16; or
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Part 9 Peel-Harvey Catchment Foundation
s. 124
1 (b) with the approval of the Treasurer, at a bank as defined
2 in section 3 of that Act,
3 to which the funds received by the Foundation must be credited.
4 (2) The Foundation Account is to be charged with all expenditure
5 lawfully incurred by the Foundation in the performance of its
6 functions.
7 (3) Moneys standing to the credit of the Foundation Account --
8 (a) are subject to the direction and control of the Trust; and
9 (b) may be transferred to the Trust for the purposes of
10 carrying this Act into effect or otherwise applied for the
11 purposes of the Trust or the Foundation.
12 (4) The operation of the Foundation Account is to be regarded as --
13 (a) a service under the control of the Trust for the purposes
14 of the Financial Management Act 2006 section 52; and
15 (b) part of the operations of the Trust for the purposes of
16 Part 5 of that Act.
17 124. Rules for this Part
18 (1) The Minister may, on the recommendation of the Trust, make
19 rules that are necessary or convenient for giving effect to this
20 Part.
21 (2) Without limiting subsection (1), the rules may --
22 (a) provide for the appointment, constitution, functions and
23 proceedings of the council, including power to employ
24 persons, appoint agents, obtain professional or other
25 services and do all things necessary or convenient to be
26 done for or in connection with the performance by the
27 Foundation of its functions; and
28 (b) provide for membership of the Foundation, including
29 membership of different categories having different
30 privileges; and
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Peel-Harvey Catchment Foundation Part 9
s. 124
1 (c) provide for meetings and other proceedings of members
2 of the Foundation; and
3 (d) provide for the appointment of one or more patrons of
4 the Foundation; and
5 (e) provide for Friends of the Foundation and for the
6 establishment of a register of such persons; and
7 (f) provide for the manner of execution of documents
8 authorised to be executed by resolution of the council;
9 and
10 (g) empower the council, with the approval of the Trust, to
11 make by-laws with respect to the operations and
12 proceedings of the Foundation, the council, committees
13 of the council and persons employed by the Foundation.
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Part 10 General
s. 125
1 Part 10 -- General
2 125. Delegation by Minister
3 (1) Subject to subsection (4), the Minister may delegate to a person
4 any function of the Minister under another provision of this Act.
5 (2) The delegation must be in writing signed by the Minister.
6 (3) The delegation takes effect when notice of the delegation is
7 published in the Gazette.
8 (4) The Minister must not delegate a function vested in the Minister
9 under section 15, 47, 53 or 54, Part 5, section 119 or 124 or
10 Schedule 4.
11 (5) A person exercising or performing a function that has been
12 delegated to the person under this section is to be taken to do so
13 in accordance with the terms of the delegation unless the
14 contrary is shown.
15 (6) Nothing in this section limits the ability of the Minister to
16 perform a function through an officer or agent.
17 126. Duties and liabilities of members etc. performing functions
18 under this Act
19 (1) In this section --
20 member means --
21 (a) a member of the Trust or of a committee and a person
22 who attends a meeting under section 19;
23 (b) any person to whom a function is delegated or
24 subdelegated under section 25.
25 (2) A member must at all times act honestly in the performance of a
26 function under this Act.
27 Penalty: a fine of $10 000.
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General Part 10
s. 126
1 (3) A member must not disclose any information acquired by virtue
2 of the performance of any function unless the disclosure is
3 made --
4 (a) in connection with the carrying out of this Act or under a
5 legal duty; or
6 (b) as required or allowed by this Act or under another
7 written law; or
8 (c) in the case of a person who attends a meeting under
9 section 19 --
10 (i) in connection with the performance of his or her
11 functions for the local government or
12 redevelopment authority; and
13 (ii) to a closed meeting, or a closed committee
14 meeting, of the council of the local government
15 or redevelopment authority;
16 or
17 (d) with the written consent of the person to whom the
18 information relates; or
19 (e) in prescribed circumstances.
20 Penalty: a fine of $10 000.
21 (4) A member must not make improper use of information acquired
22 by virtue of the performance of any function under this Act to
23 gain, directly or indirectly, an improper advantage for himself or
24 herself or to cause detriment to the Trust.
25 Penalty: a fine of $10 000.
26 (5) A member who commits a breach of any provision of this
27 section is liable for any profit made by the member or for any
28 damage suffered by the Trust as a result of the breach of that
29 provision.
30 (6) This section is in addition to and not in derogation of any other
31 law relating to the duty or liability of the holder of a public
32 office.
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Part 10 General
s. 127
1 127. Protection from personal liability
2 (1) In this section --
3 member means --
4 (a) a member of the Trust; and
5 (b) a person who attends or participates in a meeting under
6 section 19; and
7 (c) a member of a committee.
8 (2) An action in tort does not lie against a member, an officer of the
9 Trust or an inspector, for anything that the person has done, in
10 good faith, in the performance or purported performance of a
11 function under this Act or any other written law.
12 (3) The protection given by subsection (2) applies even though the
13 thing done as described in that subsection may have been
14 capable of being done whether or not this Act or any other
15 written law had been enacted.
16 (4) Despite subsection (2), neither the Trust nor the State is relieved
17 of any liability that it might have for another person having
18 done anything as described in that subsection.
19 (5) In this section, a reference to the doing of anything includes a
20 reference to the omission to do anything.
21 128. Regulations
22 (1) The Governor may make regulations prescribing all matters that
23 are required or permitted by this Act to be prescribed, or are
24 necessary or convenient to be prescribed, for giving effect to the
25 purposes of this Act.
26 (2) Without limiting subsection (1) regulations may --
27 (a) amend or insert detail into Schedules 1, 2, 3, 5 or 6;
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General Part 10
s. 128
1 (b) regulate, control or prohibit the doing of any thing in or
2 in relation to the development control area or the
3 Estuary, not being a development as defined in Part 5,
4 for the purpose of --
5 (i) protecting or enhancing the ecological and
6 community benefits and amenity or good
7 management of the land and waters in those
8 areas or any part of those areas; or
9 (ii) without limiting subparagraph (i), protecting or
10 enhancing the ecological and community benefits
11 and amenity of any area that has been identified
12 under a management programme as being an area
13 that requires priority protection or priority
14 remediation;
15 (c) for the purposes of paragraph (b), regulate or control an
16 activity by prohibiting it from being carried out by a
17 person except under a licence or permit issued by the
18 Trust to the person;
19 (d) regulate, control or prohibit the exhibition of
20 advertisements or signs in the Estuary and confer power
21 on the Trust to remove or require the removal of
22 advertisements or signs that are exhibited or maintained
23 in contravention of the regulations;
24 (e) provide for the imposition of fees and charges;
25 (f) provide that contravention of a regulation constitutes an
26 offence and for penalties not exceeding a fine of $5 000
27 and for each separate and further offence committed by
28 the person under the Interpretation Act 1984 section 71,
29 a fine of $100.
30 (3) A regulation amending Schedule 6 by inserting a regulation
31 must not be made except with the concurrence of the Minister to
32 whom the administration of the Act under which the regulation
33 is made is committed by the Governor.
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Part 10 General
s. 129
1 129. Review of Act
2 (1) The Minister must carry out a review of the operation and
3 effectiveness of this Act as soon as is practicable after the
4 expiration of 5 years from its commencement, and in the course
5 of that review the Minister must consider and have regard to --
6 (a) the effectiveness of the operations of the Trust; and
7 (b) the need for the continuation of the functions of the
8 Trust; and
9 (c) such other matters as appear to the Minister to be
10 relevant to the operation and effectiveness of this Act.
11 (2) The Minister must prepare a report based on the review made
12 under subsection (1) and must, as soon as is practicable after the
13 preparation of the report, cause the report to be laid before each
14 House of Parliament.
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Catchment area Schedule 1
1 Schedule 1 -- Catchment area
2 [s. 8]
3 All of the land and waters contained within Schedule 1 of the Environmental
4 Protection Policy Approval Order.
5
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Schedule 2 Development control
1 Schedule 2 -- Development control area
2
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Authorities Schedule 3
1 Schedule 3 -- Authorities
2 [s. 3, 6(1), 128(2)(a)]
3 1. The chief executive officers of the departments principally assisting in
4 the administration of the following Acts, and any other person
5 carrying out functions under the following Acts, to the extent that
6 their functions relate to matters affected by this Act --
7 (a) the Bush Fires Act 1954;
8 (b) the Conservation and Land Management Act 1984;
9 (c) the Environmental Protection Act 1986;
10 (d) the Fire and Emergency Services Act 1998;
11 (e) the Fish Resources Management Act 1994;
12 (f) the Forest Products Act 2000;
13 (g) the Health Act 1911;
14 (h) the Hope Valley-Wattleup Redevelopment Act 2000;
15 (i) the Jetties Act 1926;
16 (j) the Land Administration Act 1997;
17 (k) the Local Government Act 1995;
18 (l) the Main Roads Act 1930;
19 (m) the Marine and Harbours Act 1981;
20 (n) the Mining Act 1978;
21 (o) the Planning and Development Act 2005;
22 (p) the Port Authorities Act 1999;
23 (q) the Public Transport Authority Act 2003;
24 (r) the Rights in Water and Irrigation Act 1914;
25 (s) the Shipping and Pilotage Act 1967;
26 (t) the Soil and Land Conservation Act 1945;
27 (u) the Stock (Identification and Movement) Act 1970;
28 (v) the Strata Titles Act 1985;
29 (w) the Transport Co-ordination Act 1966;
30 (x) the Water Agencies (Powers) Act 1984;
31 (y) the Water Corporations Act 1995;
32 (z) the Water Services Act 2012;
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Schedule 3 Authorities
1 (aa) the Waterways Conservation Act 1976;
2 (bb) the Western Australian Land Authority Act 1992;
3 (cc) the Western Australian Planning Commission Act 1985.
4 2. The Conservation Commission established under the Conservation
5 and Land Management Act 1984.
6 3. The Marine Parks and Reserves Authority established under the
7 Conservation and Land Management Act 1984.
8 4. The Forest Products Commission established under the Forest
9 Products Act 2000.
10 5. A local government or commissioner appointed under the Local
11 Government Act 1995 to administer that local government.
12 6. The Commissioner of Main Roads appointed under the Main Roads
13 Act 1930.
14 7. The Public Transport Authority of Western Australia established
15 under the Public Transport Authority Act 2003.
16 8. The Commissioner for Soil Conservation appointed under the Soil
17 and Land Conservation Act 1945.
18 9. The Western Australian Land Authority established under the
19 Western Australian Land Authority Act 1992.
20 10. The Western Australian Planning Commission established under the
21 Planning and Development Act 2005.
22 11. A licensee as defined in the Water Services Act 2012 section 3(1).
23 12. The holder of a licence under the Electricity Industry Act 2004.
24 13. The holder of a distribution licence under the Energy Coordination
25 Act 1994.
26 14. Any decision-making authority as defined in the Environmental
27 Protection Act 1986 section 3.
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Constitution and proceedings of the board Schedule 4
General provisions Division 1
cl. 1
1 Schedule 4 -- Constitution and proceedings of the board
2 [s. 17]
3 Division 1 -- General provisions
4 1. Term used: appointed member
5 In this Division --
6 appointed member means a person appointed under section 16(1)(a),
7 (c) or (d).
8 2. Term of office
9 (1) An appointed member holds office for such period, not exceeding
10 3 years, as is specified in the instrument of his or her appointment,
11 and is eligible for reappointment.
12 (2) Despite subclause (1), if the period of office of an appointed member
13 expires by effluxion of time without a person having been appointed
14 to fill the vacancy, the appointed member continues in office until a
15 person is appointed to fill the vacancy.
16 3. Members to be part-time, except chairman
17 (1) The chairman may be appointed on terms that require the duties of
18 that office to be performed on a full-time basis.
19 (2) Except as provided in subclause (1), appointment as a member must
20 be on a part-time basis.
21 4. Resignation and removal
22 (1) The office of an appointed member becomes vacant if --
23 (a) the member resigns the office by written notice addressed to
24 the Minister;
25 (b) the member is an insolvent under administration as defined in
26 the Corporations Act 2001 (Commonwealth);
27 (c) the member is absent, without leave of the Minister, from
28 3 consecutive meetings of which the member has had notice;
29 (d) the member is removed from office by the Minister under
30 subclause (2).
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Schedule 4 Constitution and proceedings of the board
Division 1 General provisions
cl. 5
1 (2) The Minister may remove an appointed member from office if the
2 Minister is satisfied that the member --
3 (a) is incompetent, has misbehaved or has neglected his or her
4 duties as a member; or
5 (b) is suffering from mental or physical incapacity impairing the
6 performance of his or her functions.
7 5. Leave of absence
8 The Minister may grant leave of absence to a member on such terms
9 and conditions as the Minister thinks fit.
10 6. Deputy chairman
11 The Minister must designate one of the members appointed under
12 section 16(1)(a) as the deputy chairman of the board and that person
13 has, during any period when the chairman is absent or otherwise
14 unable to perform the functions of chairman, all of the functions and
15 entitlements of the chairman.
16 7. Temporary members
17 (1) Where a member, other than the chairman, is unable to act by reason
18 of sickness, absence or other cause, the Minister may appoint a person
19 who, as far as is practicable, has similar knowledge and experience as
20 that member to act in place of that member, and while so acting the
21 appointee has all the functions and entitlements of a member.
22 (2) An appointment under subclause (1) may be revoked by the Minister
23 at any time.
24 (3) If the deputy chairman is performing the functions of the chairman at
25 a meeting, subclause (1) applies as though the deputy chairman were
26 absent from the meeting.
27 (4) No act or omission of a person acting in place of another under this
28 clause is to be questioned on the ground that the occasion for so
29 acting had not arisen or had ceased.
30 8. Meetings, times and places of, quorum at etc.
31 (1) Subject to subclause (2), meetings must be held at the times and
32 places determined by the board.
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Constitution and proceedings of the board Schedule 4
General provisions Division 1
cl. 9
1 (2) The chairman or any 4 members may, on reasonable notice to all
2 members, call a meeting at any time.
3 (3) At a meeting of the board, 5 members constitute a quorum.
4 (4) The chairman must preside at all meetings of the board at which he or
5 she is present, or in which he or she is participating under clause 10.
6 (5) If both the chairman and the deputy chairman are not present or
7 participating, the members present or participating must appoint a
8 member to preside.
9 (6) Questions arising at a meeting of the board must be decided, in open
10 voting, by a majority of the votes of members present.
11 (7) If the votes of members present or participating at a meeting and
12 voting on a question are equally divided, the person presiding has a
13 casting vote in addition to a deliberative vote.
14 (8) In this clause --
15 member includes a person who attends a meeting under section 19.
16 9. Resolution may be passed without meeting
17 (1) If --
18 (a) a document containing a statement to the effect that a
19 resolution has been passed is sent or given to all members;
20 (b) the document is assented to by not less than 5 members,
21 that resolution is to be taken as having been passed by a meeting of
22 the board.
23 (2) Subclause (1) does not apply to a resolution that relates to a relevant
24 matter for a local government as defined in section 19(2) unless the
25 local government has consented in writing to the passing of the
26 resolution.
27 (3) For the purposes of subclause (1) --
28 (a) the meeting is to be taken as having been held --
29 (i) if the members assented to the document on the same
30 day -- on the day on which the document was
31 assented to and at the time at which the document
32 was last assented to by a member; or
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Schedule 4 Constitution and proceedings of the board
Division 1 General provisions
cl. 10
1 (ii) if the members assented to the document on different
2 days -- on the day on which, and at the time at
3 which, the document was last assented to by a
4 member;
5 and
6 (b) 2 or more separate documents in identical terms each of
7 which is assented to by one or more members are to be taken
8 to constitute one document; and
9 (c) a member may signify assent to a document --
10 (i) by signing the document; or
11 (ii) by notifying the Trust of the member's assent in
12 person or by post, facsimile transmission, telephone,
13 email or other method of written, electronic, audio or
14 audiovisual communication.
15 (4) Where a member signifies assent to a document otherwise than by
16 signing the document, the member must by way of confirmation sign
17 the document at the next meeting of the board attended by the
18 member, but failure to do so does not invalidate the resolution to
19 which the document relates.
20 (5) Where a document is assented to in accordance with subclause (1), the
21 document is to be taken as a minute of a meeting of the board.
22 (6) The chairman must report the passing of a resolution under
23 subclause (1) to the next meeting of the board.
24 10. Meetings by telephone etc.
25 (1) In this clause --
26 member includes a person who participates in a meeting under
27 section 19.
28 (2) A communication between a majority of members by telephone,
29 audiovisual or other electronic means is a valid meeting of the board
30 if --
31 (a) each participating member is capable of communicating with
32 every other participating member instantaneously at all times
33 during the proceedings; and
34 (b) all members were advised that the communication would be
35 taking place and were given the opportunity to participate.
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Constitution and proceedings of the board Schedule 4
Disclosure of interests Division 2
cl. 11
1 11. Minutes of meetings
2 The board must cause accurate records to be kept of the proceedings
3 at its meetings.
4 12. Procedures
5 Subject to this Act, the board is to determine its own procedures.
6 Division 2 -- Disclosure of interests
7 13. Term used: member
8 In this Division --
9 member includes a person who attends a meeting under section 19.
10 14. Material personal interests to be disclosed
11 (1) A member who has a material personal interest in a matter being
12 considered or about to be considered by the board must, as soon as
13 possible after the relevant facts have come to the member's
14 knowledge, disclose the nature of the interest at a meeting of the
15 board.
16 Penalty: a fine of $10 000.
17 (2) A disclosure under subclause (1) must be recorded in the minutes of
18 the meeting.
19 15. Member with material personal interest not to vote etc.
20 A member who has a material personal interest in a matter that is
21 being considered by the Board --
22 (a) must not vote whether at a meeting or otherwise --
23 (i) on the matter; or
24 (ii) on a proposed resolution under clause 16 in respect of
25 the matter, whether relating to that member or a
26 different member;
27 and
28 (b) must not be present while --
29 (i) the matter; or
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Schedule 4 Constitution and proceedings of the board
Division 2 Disclosure of interests
cl. 16
1 (ii) a proposed resolution of the kind referred to in
2 paragraph (a)(ii),
3 is being considered at a meeting.
4 16. Clause 15 may be declared inapplicable
5 Clause 15 does not apply if the board has at any time passed a
6 resolution that --
7 (a) specifies the member, the interest and the matter; and
8 (b) states that the members voting for the resolution are satisfied
9 that the interest should not disqualify the member from
10 considering or voting on the matter.
11 17. Quorum if cl. 15 applies
12 (1) Despite clause 8(3), if a member of the board is disqualified under
13 clause 15 in relation to a matter, a quorum is present during the
14 consideration of the matter if at least 4 members are present who are
15 entitled to vote on any motion that may be moved at the meeting in
16 relation to the matter.
17 (2) The Minister may deal with a matter to the extent that the board
18 cannot deal with it because of subclause (1).
19 18. Minister may declare cl. 15 and 17 inapplicable
20 (1) The Minister may, in writing, declare that clause 15 or 17 or both of
21 them do not apply in relation to a specified matter either generally or
22 in voting on particular resolutions.
23 (2) The Minister must cause a copy of a declaration made under
24 subclause (1) to be laid before each House of Parliament or dealt with
25 under clause 19 within 14 days after the declaration is made.
26 19. Supplementary provision about laying documents before
27 Parliament
28 (1) If --
29 (a) at the commencement of a period referred to in clause 18(2)
30 in respect of a document a House of Parliament is not sitting;
31 and
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Constitution and proceedings of the board Schedule 4
Disclosure of interests Division 2
cl. 19
1 (b) the Minister is of the opinion that that House will not sit
2 during that period,
3 the Minister must transmit a copy of the document to the Clerk of that
4 House.
5 (2) A copy of a document transmitted to the Clerk of a House is to be --
6 (a) taken to have been laid before that House; and
7 (b) taken to be a document published by order or under the
8 authority of that House.
9 (3) The laying of a copy of a document that is taken to have occurred
10 under subclause (2) is to be recorded in the Minutes, or Votes and
11 Proceedings, of the House on the first sitting day of the House after
12 the Clerk received the copy.
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Schedule 5 Local governments
1 Schedule 5 -- Local governments
2 [s. 19, 23]
3 Shire of Boddington
4 City of Mandurah
5 Shire of Murray
6 Shire of Serpentine-Jarrahdale
7 Shire of Waroona
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Prescribed regulations Schedule 6
1 Schedule 6 -- Prescribed regulations
2 [s. 117]
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Defined Terms
Defined terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined term Provision(s)
Account ............................................................................................................ 3(1)
affect ................................................................................................................ 7(1)
alleged offender ................................................................................................114
applicant ..............................................................................................................59
application .................................................................................................... 104(1)
appointed member ................................................................................ Sch. 4, cl. 1
approval ..............................................................................................................59
approving authority ........................................................................................ 73(1)
authorised person ......................................................................................... 115(1)
board ................................................................................................................ 3(1)
catchment area ................................................................................................. 3(1)
chairman........................................................................................................... 3(1)
chief executive officer.................................................................................... 29(1)
code ................................................................................................................ 46(1)
committee......................................................................................................... 3(1)
Crown land ....................................................................................................... 3(1)
development application .....................................................................................59
development control area ................................................................................. 3(1)
development ............................................................................................... 3(1), 59
document ........................................................................................................ 27(1)
dwelling ..............................................................................................................96
eligible person ................................................................................................ 25(1)
entry warrant .......................................................................................................96
Environmental Protection Policy Approval Order ........................................... 3(1)
estuary protection notice .................................................................................. 3(1)
estuary protection strategy ............................................................................... 3(1)
Estuary ............................................................................................................. 3(1)
financial assurance ....................................................................................... 110(1)
Foundation Account ......................................................................................... 3(1)
Foundation ....................................................................................................... 3(1)
General Manager .............................................................................................. 3(1)
high water mark ............................................................................................... 3(1)
information..................................................................................................... 27(1)
inspector ........................................................................................................... 3(1)
investigative purposes .........................................................................................96
land .................................................................................................................. 3(1)
lot ..................................................................................................................... 3(1)
management programme .................................................................................. 3(1)
member .........................3(1), 18(1), 126(1), 127(1), Sch. 4, cl. 8(8), 10(1) and 13
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Defined Terms
Minister for Planning ....................................................................................... 3(1)
mobile home .......................................................................................................96
native title rights and interests ......................................................................... 7(1)
NTA ................................................................................................................. 7(1)
officer of the Trust ........................................................................................... 3(1)
owner .................................................................................................... 3(1), 81(1)
personal details .............................................................................................. 98(1)
place ....................................................................................................................96
prescribed offence .............................................................................................114
prescribed ......................................................................................................... 3(1)
public authority ................................................................................................ 3(1)
register ........................................................................................................... 86(1)
Registrar ......................................................................................................... 86(1)
relevant Minister ................................................................................. 47(3), 53(1)
relevant record ............................................................................................. 100(1)
remote communication................................................................................. 104(1)
responsible authority ........................................................................... 86(1), 88(1)
responsible person ........................................................................................ 110(2)
Schedule 3 authority ........................................................................................ 3(1)
Schedule 3 Minister ................................................................................ 6(5), 6(5)
scheme ................................................................................................ 86(1), 88(1)
strategic document ........................................................................................... 3(1)
Trust website .................................................................................................... 3(1)
Trust ................................................................................................................. 3(1)
unallocated Crown land ................................................................................... 3(1)
vehicle .................................................................................................................96
waters ............................................................................................................... 3(1)
Western Australian Planning Commission ...................................................... 3(1)
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