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©State of Queensland
QUEENSLAND
THE CITY OF BRISBANE TOWN PLANNING ACTS,
1964 TO 1967
with
RULES OF COURT
and an
INDEX
(Compiled to 1 May, 1968)
Prepared by direction of
The Honourable H. RICHTER, M.L.A., Minister for Local Government and Conservation.
By Authority: S. G. Reid, Government Printer.
TABLE OF CONTENTS
PAGE CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 1
LOCAL GOVERNMENT COURT RULES, 1966 21
INDEX 35
"THE CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967"
City of Brisbane Town Planning Act of 1964, No. 60 as amended by
Local Government Acts and Another Act Amendment Act of 1967, No. 43, Part III.
Acquisition of Land Act of 1967, No. 48, s. 3, Sch. 1; Commenced 23 March, 1968 (Proc. pubd. Gaz. 23 March, 1968, p. 1206)
An Act relating to the Town Planning of the City of Brisbane [Assented to 22 December 1964]
1. (1) Short title. This Act may be cited as "The City of Brisbane Town Planning Act of 1964."
(2) Interpretation. This Act shall be read as one with "The City of Brisbane Acts, 1924 to 1960."
(3) Commencement of Act. This Act shall come into operation on a date to be fixed by the Governor in Council by Proclamation published in the Gazette.
Commenced 21 December 1965; Proclamation, Gazette 21 December 1965, p. 1777.
Collective title conferred by Act of 1967, No. 43, Part III, s. 8 (2).
Act referred to:
City of Brisbane Acts, 1924 to 1967.
2. Repeal of 8 Eliz. II, No. 18, 11 Eliz. II, No. 17, and s. 3 of 8 Eliz.
II, No. 70. (1) "The City of Brisbane (Town Plan) Act of 1959," "The City of Brisbane Town Plan (Extension of the Period for Inspection) Act of 1962," and section three of "The City of Brisbane Acts and Another Act Amendment Act of 1959," (herein collectively referred to as "the repealed Acts") are hereby repealed:
Provided that, without prejudice to the provisions of "The Acts Interpretation Acts, 1954 to 1962," any right of appeal accrued to any person under the repealed Acts may be exercised as if the repealed Acts were still in force and, in the case of every such appeal, the decision thereon, (whether made before or after the passing of "The Local Government Acts and Another Act Amendment Act of 1967") shall have (and it is hereby declared always had on and from the making thereof) effect as if the appeal had been decided before the coming into operation of this Act.
(2) It is hereby declared that the right of appeal conferred by section thirteen of "The City of Brisbane (Town Plan) Act of 1959,"
always included a right of appeal against any requirement or decision of The Greater Brisbane Town Planning Committee established under that Act and that, as respects such an appeal and any requirement, decision or other act of authority made or done by the Town Clerk or any other officer of the Council under any ordinance made pursuant to section twelve of that Act, the expression "delegate" where used in the said section thirteen includes and it is hereby declared always included the said Committee and the Town Clerk or such other officer.
2 s.3 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967
The proviso to subsection (1) o! this. section s~all apply with r~spect
to any right of appeal referred to In thIS ~ubsectI.on, a~d the MInIster may, pursuant to his powers under the saId sectIOn thIrt~en, make a fresh appointment of a person or persons to ?ear and determI~e any such appeal in any case where the appeal remams to be determmed at the date of the enactment of this subsection and the Minister deems the appointment necessary.
(3) Where an appeal against refusal of approval or any condition of approval of an application to open a new road or subdivide any land is or has been, pursuant to the proviso to subsection (1) of this section, allowed the proposed allotments shown on the plan of survey made in accordance with the decision on the appeal shall be deemed, and it is hereby declared always were on and from the date of allowance of the appeal to be deemed, for the purpose of the Plan, to be allotments in existence on the day called in the Plan the appointed day.
( 4) The person hearing and determining any appeal under the repealed Acts may, and it is hereby declared always could, allow the appeal subject to such conditions as he deems or deemed fit, being conditions to which the Councilor its delegate could lawfully subject or could have lawfully subjected the approval, consent, permission or other act of authority to which the appeal relates.
As amended by Act of 1967, No. 43, Part III, s. 9.
3. Definitions. In this Act unless the context otherwise indicates or requires, the following terms have the meanings set against them respectively, that is to say:-
"Allotment"-A piece, parcel or subdivision of land the boundaries of which are separately defined by metes and bounds on a plan of survey deposited in the Survey Office or, in the case of land under ((The Real Property Acts, 1861 to 1963"
which has been subdivided, any and every subdivision
bf
such land the boundaries of which are separately defined by metes and bounds on the relevant plan of such land registered with the Registrar of Titles under and in accordance with "The Real Property Acts, 1861 to 1963";
"Amend"-.In relation to the Plan amend, add to, alter or modify otherWIse;
"Authorised surveyor"-A surveyor authorised by registration under ((The Land Surveyors Acts, 1908 to 1916";
"Building"-Any fixed structure which is either wholly or in part enclosed by walls and which is roofed: The term includes any part of a building;
"Court"-The Local Government Court constituted under this Act;
"Delegate"-The board of the Council to which the exercise of any of the powers, duties, authorities or discretions of the C<;mncil under this Act or any ordinance made pursuant to th!s Act are delegated by any ordinance made pursuant to thIS Act.
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 s.3 3
The teon includes the Town Clerk or any other officer of the Council as respects any decision, requisition or other act of authority made or done by him under any ordinance, under "The City of Brisbane Acts, 1924 to 1966," whether or not the ordinance was or purported to be made pursuant to this Act;
"Erect"-Includes-
(a) erect or commence or continue to erect;
(b) do, or commence or continue to do any work in the cours~
of or for the purpose of erecting;
(c) perform any structural work or make any alteration, addition or rebuilding;
(d) move from one position on an allotment to another pO$ition on or partly on the same allotment or another allotment;
(e) re-erect with or without alteration on or partly on the same or another allotment; or
(f) where a building or other structure is located on more than one allotment-
(i) move to another position on the same allotments or any of them or to another allotment or allotments; or (ii) re-erect with or without alteration on another position on
the same allotments or any of them or on another allotment or allotments;
"Member of the Court"-the person by whom the Court is constituted for the time being;
"Minister"-The Minister for Local Government and Conservation of Queensland or other Minister of the Crown for the time being charged with the administration of this Act;
"Owner"-The person other than Her Majesty who, for the time being, is entitled to receive the rent of any land, or who, if the same were let to a tenant at a rack rent, would be entitled to receive the rent thereof: The term includes any lessee from the Crown and any lessee from the Commissioner for Railways;
"Scheme map"-The maps respectively which are included in the series of maps which are comprised in the plan and which are authenticated and kept as prescribed by the Plan;
"Structure"-Any building, wall, fence or other structure or anything affixed to or projecting from any building, wall, fence or other structure: The term includes any part of a structure;
"The Plan"-The Town Plan for the City of Brisbane;
"Use"-In relation to land, includes the carrying out of excavation work in or under land and the placing on land of any material or thing which is not a building or other structure.
The term includes any use which is incidental to and necessarily associated with the lawful use of the land in question;
4 ss.4·6 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967
"Zone"-The divisions respectively into which the City is divided by the Plan for the purposes of the Plan. A reference in this Act to a Zone by its name refers to the aforesaid division of the City which is designated by that name in the Plan.
As amended by Act of 1967, No. 43, Pt. III, s. 10.
Acts referred to:
Real Property Acts, 1861 to 1963;
Land Surveyors Acts, 1908 to 1916;
City of Brisbane Acts, 1924 to 1967.
4. Town Plan for the City of Brisbane. (1) Notwithstanding the repeal of the repealed Acts the Plan under and within the meaning of uThe City of Brisbane (Town Plan) Act of 1959," as approved by the Governor in Council shall, subject to this Act, be and continue to be the Town Plan for the City of Brisbane and shall have the force of law and be binding upon and be obeyed by Brisbane City Council and all persons whomsoever accordingly.
The notification that the Governor in Council has approved of the Plan to be published in the Gazette under subsection (3) of section nine of "The City of Brisbane (Town Plan) Act of 1959," may be published in the Gazette on the date proclaimed as the date on which this Act is to come into force or on any earlier date.
(2) Subject to this Act, the Governor in Council may from time to time amend the Plan.
Upon the publication in the Gazette of notification of any such amendment the Plan as amended thereby shall, subject to this Act, become and be for the time being the Town Plan for the City of Brisbane and shall have the force of law and be binding upon and be obeyed by Brisbane City Council and all persons whomsoever accordingly.
5. Brisbane City Council to administer the Plan. (1) Brisbane City Council is hereby charged with the administration, implementation and enforcement of the Plan.
(2) The Council shall at the expiration of the period of three years commencing on the date when this Act comes into force and at the expiration of every period of five years thereafter review the Plan.
If, upon such a review the Council determines that the Plan does not require amendment, the Council shall report accordingly to the Minister.
If, upon such a review, the Council determines that the Plan requires amendment the Council shall proceed in the matter of such amendment as prescribed.
6. Brisbane City Council may propose amendments of the Plan. (1) Brisbane City Council may at any time and from time to time make application to the Minister for amendment of the Plan.
(2) Before making any such application the Council shall, by advertisement published at least once in at least one newspaper printed and circulating in the City, give public notice of its intention to make the application and that particulars, including relevant maps, if any, of the amendments of the Plan for which the Council proposes to apply are open to inspection at the office of the Council and that objections
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 s.6 5 to such proposals may be lodged with the Town Clerk in pursuance of the provisions of this Act on or before the date specified in the advertisement (which date is in this section called "the last day for the receipt of objections").
Such date shall be a date not less than ninety days after the date of the publication of the advertisement where the advertisement relates to amendments determined by the Council to be required upon any review made pursuant to subsection (2) of section five of this Act.
Otherwise such date shall be a date not less than thirty days after the date of the publication of the advertisement.
The Council shall, at all times during which its office is open for the conduct of public business, keep open to inspection as advertised under this subsection, particulars, including relevant maps, if any, of any amendments of the Plan for which it proposes to apply.
(3) Every objection shall be in writing, shall be addressed to the Town Clerk, and shall state the grounds of objection and the facts and circumstances relied on by the. objector in support of those grounds.
(4) Brisbane City Council shall forthwith consider any and every objection made as prescribed by subsection (3) of this section and lodged with the Town Clerk on or before the last day for the receipt of objections.
(5) Any application by Brisbane City Council to the Minister for amendment of the Plan shall be made to the Minister within ninety days or, if the Minister who is hereby thereunto authorised allows a longer period, the period allowed by the Minister after the last day for the receipt of objections.
The application shall be accompanied by-
(a) a statement of the grounds on which the application is made and of the facts and circumstances relied on by the Council in support of those grounds;
(b) all objections made and lodged as prescribed on or before the last day for the receipt of objections;
(c) the representations by Brisbane City Council in respect of all objections made and lodged as prescribed;
(d) particulars including relevant maps, if any, of the amendment.
(6) The Governor in Council shall consider every application made to the Minister under this section and all objections and representations accompanying such application and may reject the application, or may approve of the application wholly or in part.
The power of the Governor in Council to approve an application in part includes power to make all such amendments of the Plan as the Governor in Council, having regard to the application and to the objections and representations which accompanied the application, deems fit.
(7) Where the Governor in Council approves of any amendment of the Plan applied for by the Council a notification of such amendment shall be published in the Gazette.
Such a notification shall describe so as to identify every amendment of the Plan thereby notified.
6 s.7 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 Upon the publication of such notification the Plan as amended for the time being according to the notification shall become and be the Town Plan for the City of Brisbane and shall have the force of law and be binding upon and obeyed by Brisbane City Council and all persons whomsoever accordingly.
7. Amendments, etc., of the Plan on recommendation of Minister.
(1) The Governor in Council on the recommendation of the Minister may at any time and from time to time amend the Plan.
(2) Before making any such recommendation, the Minister shall, by advertisement published at least once in at least one newspaper printed and circulating in the City give public notice of his intention to make the recommendation and that particulars including relevant maps, if any, of the amendments of the Plan which he proposes to recommend are open to inspection at the Department of Local Government and that objections to such recommendation may be lodged in such Department in pursuance of the provisions of this Act on or before the date specified in the advertisement (which date is in this section called "the last day for the receipt of objections").
Such date shall be a date not less than thirty days after the date of the publication of the advertisement.
The Director of Local Government shall, at all times during which his office is open for the conduct of public business, keep open to inspection as advertised under this subsection, particulars, including relevant maps, if any, of all amendments of the Plan which the Minister proposes to recommend.
(3) Every objection shall be in writing, shall be addressed to the Director of Local Government, and shall state the grounds of objection and the facts and circumstances relied on by the objector in support of those grounds.
In making the recommendation to the Governor in Council the Minister shall have regard to every objection made as prescribed by this subsection and lodged in the Department of Local Government on or before the last day for the receipt of objections.
(4) A notification of any amendment of the Plan made by the Governor in Council upon the recommendation of the Minister shall be published in the Gazette.
Such a notification shall describe so as to identify every amendment of the Plan thereby notified.
Upon the publication of such notification the Plan as amended, for the time being according to the notification shall become and be the Town Plan for the City of Brisbane and shall have the force of law and be binding upon and obeyed by Brisbane City Council and all persons whomsoever accordingly.
(5) All costs incurred by the Minister in respect to any amendments of the Plan made under this section shall be borne by Brisbane City Council and for the purpose of the recovery of any unpaid amount thereof by the Treasurer from Brisbane City Council shall be deemed to have been incurred in respect of a function of Brisbane City Council.
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 s.8 7
8. Re-zoning of land in Future Urban Zone. (1) Where Brisbane City Council proposes to amend the Plan by excluding from the Future Urban Zone any land and by including the land so excluded (other than any part thereof for road purposes) in another Zone or by including parts of the land so excluded in two or more other Zones, Brisbane City Council shall, before making to the Minister the application in respect of such proposed amendment prescribed by this Act, comply with the requirements of this section.
(2) Except to the extent to which the Governor in Council exempts the Council from complying with the requirements of this subsection, the Council shall cause to be determined and fixed by survey made by an authorised surveyor-
(a) the boundaries of each and every catchment area wherein any part of the land proposed to be excluded from the Future Urban Zone is situated (including any land to be excluded for road purposes other than future subdivisional roads);
(b) the location of land for road purposes, other than subdivisional roads;
(c) the boundaries of each and every Zone in which any part of the land (other than land for road purposes) is proposed to be included,
and shall cause to be prepared a map showing the information obtained from such survey and endorsed with the certificate of an authorised surveyor verifying such information.
(3) The Council shall cause to be prepared a statement in writing of the grounds on which it has determined that the development and use in accordance with the Plan of any part of the land in the Zone in which it is proposed to include such part accords with the objects of the Plan and so accords having regard in particular to-
(a) the suitability of the land for the use in question;
(b) the immediate and future costs to the Council in respect of the provision or extension of services which will require to be provided or extended by it consequent on the development for use as proposed of the land in question.
(4) The map, if any, and statement in writing prepared pursuant to subsections (2) and (3) of this section shall be open to inspection at the office of the Council in accordance with the requirements of section six of this Act and the relevant advertisement under that section in relation to the proposed amendment shall give public notice accordingly.
Copies of such map, if any, and statement shall accompany the application to the Minister.
(5) Where the Minister proposes to recommend that the Governor in Council pursuant to section seven of this Act should amend the Plan by excluding from the Future Urban Zone any land and by including the land so excluded in another Zone or by including parts of the land so excluded in two or more other Zones, the Minister may notify the Council accordingly and thereupon the Council shall as soon as may be comply with the provisions of subsection (2) of this section in respect of the proposal by the Minister as if such proposal were a proposal by the Council.
8 ss.9-12 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967
9. Appeal to Court by applicant for re-zoning of land. ~ 1) An applicant to the Council to exclude land from any Zone and to mcl~de the land so excluded in another Zone may appeal to the Court agamst the decision of the Council refusing such application or, where the Council approves the application subject to any condition, against that condition.
(2) If the Court allows the appeal, it shall order the Council to make application to the Minister for such amendment of the Plan as would, if made, effect the application.
Such application shall be made in accordance with the provisions of this Act relating to amendment of the Plan which are applicable in the circumstances of the case and the Council shall, within the time specified in the order of the Court, commence to take and do the steps and things prescribed by this Act to be done and taken by it in respect of such application.
(3) The Court may allow an appeal (whether against a refusal or a condition of approval) unconditionally or subject to such conditions as the Court deems fit, being conditions to which the Council could lawfully subject its approval of the application in question or which are agreed upon between the Council and the appellant.
For the purpose of giving effect to this section the Court may make such order or orders as it deems fit.
As amended by Act of 1967, No. 43, Part III, s. 11.
10. Subdivision of land in Non-Urban Zone or Future Urban Zone.
Brisbane City Councilor its delegate shall not approve of any application to subdivide land in a Non-Urban Zone or in a Future Urban Zone, unless and until Brisbane City Councilor its delegate is satisfied-
(a) that the object of subdividing is to enable the development and use of the land bona fide for a purpose for which land in the Zone in question may be used; and
(b) that the subdivision if approved will not enable the land to be developed and used for any purpose other than a purpose for which land in the Zone in question may be used.
11. Town Plan to be open for inspection. Brisbane City Council shall keep open for inspection at its office at all times during which its office is open for the transaction of public business, a copy of the Plan as in force for the time being.
~n this section the expression "a copy of the Plan", includes a copy of thIS Act, a copy of the Order in Councilor notification whereby the Governor in Council notified in the Gazette his approval of the Town Plan, copies of all scheme maps, and copies of all ordinances made pursuant to this Act.
12. Town planning certificate. The Council shall, within seven days of the receipt by it ?f an application in that behalf accompanied by the amount of the ~ee, if any, fixed by or pursuant to ordinance, give to any person a certIficate, called a town planning certificate settino forth in respect of the land specified in the application:- ' .::;,
(a) the zone or zones in which such land is situated·
,
(b) the provisions, if any, of the Plan relating to proposed roads and proposed road widenings which affect such land or any building or structure thereon;
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 s.13 9 (c) particulars of all consents, permissions and approvals granted
by the Councilor its delegate relevant to such land.
Every such certificate shall be signed by the Town Clerk or by some officer of the Council thereunto authorised by ordinance.
A town planning certificate shall be admissible in evidence in any proceedings wherein proof of any of the matters certified to therein is relevant and shall be proof of such matters and, in the absence of evidence in rebuttal, shall be conclusive such proof.
13. Claims for compensation. (1) Subject to this Act any person- (a) who has an estate or interest in land in the City of Brisbane
and such estate or interest is injuriously affected-
(i) by the coming into operation of any provision contained in the Plan; or
(ii) by any prohibition or restriction imposed by or under the Plan; or
(b) who has incurred expenditure pursuant to a town planning certificate given to him by the Council pursuant to this Act which expenditure is rendered abortive in whole or in part by reason of any error, omission or inaccuracy in such certificate, shall, if he makes a claim therefor within the time prescribed, be entitled to obtain from the Council compensation in respect of such injurious affection or expenditure.
(2) Subject to subsection (3) of this section, where under the Plan any land is included in a Special Uses "A" Zone, or a Special Uses "B"
Railways Zone, or a Proposed Open Space Zone, or an Existing Open Space Zone or is affected by a proposed road (including a road widening), no claim for compensation shall arise against the Council for injurious affection to that land due to prohibition or restriction of the use thereof because of such inclusion or proposed road until-
(a) the land is first sold after the Plan comes into force; or (b) the owner, having offered the land for sale in good faith and having taken reasonable steps to obtain a fair and reasonable price for the land, has been unable to sell the land; or (c) the Councilor its delegate refuses an application made under
the Plan for permission to use the land or erect a building or other structure thereon for a purpose which is permissible under the Plan.
(3) Before compensation is awarded in a case to which paragraphs (a) or (c) of subsection (2) of this section applies-
(a) Where the land is sold, the Court shall be satisfied- (i) that the owner of the land has sold the land at a lesser price
than he might reasonably have expected to receive had there been no such prohibition or restriction as aforesaid; and (ii) that the owner sold the land in good faith and took reason-
able steps to obtain a fair and reasonable price for the land; or
(b) Where the Council refuses any application as aforesaid, the Court shall be satisfied that the application was made in good faith.
As amended by Act of 1967, No. 43, Part III, s. 12.
10 8.14 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967
14. Compensation not payable in certain cases. (1) Compensation shall not be payable in the following cases:-
(a) in respect of any building or other structure erected or work done upon, or contract made, or other act or thing done in respect of land in the City after the third day of December, one thousand nine hundred and fifty-five, unless, where required by law, the erection of such building or other structure, or the doing of such work or the making of such contract, or the doing of such other act or thing was permitted by the Council or its delegate;
(b)
(c)
(d)
where an estate or interest in land is injuriously affected by reason of any provision contained in the Plan, if and in so far as the same provision or a provision substantially of the same effect was, at the date when the provision included in the Plan came into operation, already in force by virtue of some Act or ordinance of the Council;
where an estate or interest in land is affected by any provision of the Plan or an ordinance of the Council which prescribes the space about buildings or other structures or limits the size of allotments or the number of buildings or other structures to be erected or prescribes the height, floor space, design, external appearance or character of buildings or other struc- tures, but nothing contained in this paragraph shall limit the Council's liability to pay compensation in respect of the acquisition by it of land pursuant to its power under subsection (9) of section thirty-five of "The Local Government Acts, 1936 to 1964";
where an estate or interest in land is affected by any provision of the Plan which prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that he had a legal right immediately before the provision in question of the Plan came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is prohibited or restricted as aforesaid.
This paragraph (d) shall not apply in relation to sub- sections (2) or (3) of section thirteen of this Act;
(e) in respect of anything done in contravention of the Plan;
(f) in respect of anything done in contravention of any ordinance made pursuant to section twelve of "The City of Brisbane (Town Plan) Act of 1959," or of any decision or of any permission or approval given under such an ordinance, or in contravention of any building approval granted by the Council or its delegate, or, as the case may be, in contravention of any decision in an appeal under section thirteen of the said Act;
(g) (repealed);
(h) in respect of any affection of any estate or interest in land by or pursuant to the provisions of section ten of this Act.
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 ss.15,16 11 (2) The onus of proving that compensation is not payable in any case by virtue of any of the provisions of subsection (1) of this section shall be upon the Council.
As amended by Act of 1967, No. 43, Part III, s. 13.
Acts referred to:
Local Government Acts, 1936 to 1967;
City of Brisbane (Town Plan) Act of 1959, repealed.
15. Claims for compensation for injurious affection. (1) Every claim for compensation under this Act shall be made on the form prescribed by the Council by ordinance and the person making the claim shall fully complete and sign the same and lodge it with the Council, and the Council shall not be obliged to consider the claim until all information reasonably required by the form to be supplied has been supplied by the claimant.
(2) A claim shall be deemed to have been made on the date on which it is received by the Council.
(3) The time within which a claim under this Act may be made shall be three years after the date on which the claim arose.
( 4) If within forty days after the receipt by the Council of a duly completed claim for compensation under this Act the Council has not made a decision on the claim, or having made a decision thereon has not communicated its decision to the claimant, or if the Council having made a decision thereon and communicated the same to the claimant within the time aforesaid the claimant is not satisfied with such decision, the claimant may appeal to the Court which shall have jurisdiction to hear and determine the claim.
16. Assessment of compensation. (1) In assessing compensation in respect of the injurious affection of an estate or interest in land, the following provisions shall, subject to subsections (2) and (3) of section thirteen of this Act, have effect:-
(a) the amount of compensation shall, subject to these provisions, be a sum equal to the difference between the market value of such estate or interest immediately after the time of the coming into operation of the provision of the Plan by virtue of the operation whereof the claim for compensation arose and what would have been the market value of that estate or interest if such provision had not come into operation;
(b) there shall be taken into account any modification of the injurious affection that may be effected in consonance with the Plan;
(c) there shall be taken into account any benefit which may accrue to any land adjacent to the land in respect of which compensation is claimed in which the claimant has an estate or interest-
(i) by reason of the coming into operation of the provision in question or any other provision of the Plan; or
(ii) by reason of the construction or improvement by the Council at any time after the Plan comes into force upon such adjacent land of any work or service in pursuance of the provisions of the Plan;
12 ss.17-20A CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967
(d) if the land in respect of which compensation ~s claimed ~as, since the date upon which the Plan came mto operatIOn, become or ceased to be separate from other land, th~ amo~nt of compensation shall not be enhanced by reason of Its havmg become or ceased to be separate from other land.
(2) Where compensation for injurious affectio? is .c1aime? under this Act, instead of paying compensation, the CouncIl. at Its op~IOn may take the land and for that purpose shall be a constructmg authOrIty under
"The Acquisition of Land Act of 1967":
Provided that before resolving to take the land the Council shall obtain the consent of the Minister (which consent the Minister may grant or refuse to grant).
In such case the owner shall be entitled to compensation as if the land were not injuriously affected by reason of the coming into operation of any provision contained in the Plan or any prohibition or restriction imposed by or under the Plan.
As amended by Act of 1967, No. 48, s. 3 (2), Sch. 1, Part II.
Act referred to:
Acquisition of Land Act of 1967.
17. No compensation except in accordance with Act. Save as provided in this Act no person shall be entitled to compensation by reason of the operation of the Plan or any amendment thereof, or by reason of the exercise by the Councilor its delegate of any discretion under the Plan.
18. Appeals in respect of applications to subdivide land or open new road. Subject to this Act any applicant for approval to open any new road or to subdivide any land may appeal to the Court against the decision of the Council or its delegate.
19. Appeals in respect of applications to use land or to erect or use buildings or other structures. Subject to this Act any applicant for approval, consent or permission to use any land or to erect or use any building or other structure for a purpose permitted by the Plan may appeal to the Court against the decision of the Council or its delegate.
20. Appeals in respect of requirements and decisions of Council under ordinances. Subject to this Act any person who is dissatisfied with any decision of the Councilor its delegate under any ordinance made pursuant to this Act may appeal to the Court against such decision.
He may institute the appeal within thirty days after the decision first comes to his knowledge but not later.
20A. Other appeals in respect of the erection of buildings or other structures. Subject to this Act an applicant who is dissatisfied with a decision, requisition or other act of authority with respect to the erection of any building or other structure for a purpose permitted by the Plan made or done or purporting to be made or done by the Council or its delegate by virtue of the provisions of any ordinance made under "The City oj Brisbane Acts, 1924 to 1966," and whether an ordinance made pursuant to this Act or not, may appeal to the Court against such decision, requisition or other act of authority.
Inserted by Act of 1967, No. 43, Part III, s. 14.
}\ct referred to:
City of Brisbane }\cts, 1924 to 1967.
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 ss. 20B·20D 13 20B. Appeal may be allowed subject to conditions. The Court may allow any appeal under sections eighteen, nineteen, twenty or 20A of this Act unconditionally or subject to such conditions as the Court deems fit, being conditions to which the Council or its delegate could lawfully subject the approval, consent, permission, decision, requisition or other act of authority to which the appeal relates, or which are agreed upon between the Councilor its delegate and the appellant.
For the purpose of giving effect to this section the Court may make such order or orders as it deems fit.
Inserted by Act of 1967, No. 43, Part III, s. 15.
20c. Unlawful conditions. (1) It shall be unlawful for the Council or its delegate-
(a) in the case of any application for approval to open a new road or to subdivide any land, to subject the approval to a condition requiring corner truncation of the subject land at any corner which is already truncated;
(b) in the case of any application for approval to subdivide land not involving the opening of a road, to subject the approval to a condition requiring corner truncation of the subject land at any corner;
(c) in the case of any application for approval, consent or pennission to use or erect a building or other structure for any purpose other than a service station or to use land for any purpose other than a service station, to subject the approval, consent or permission to any condition requiring-
(i) corner truncation;
(ii) the transfer of land free of cost to the Council for road or any other public purpose;
(iii) any building or other structure to be set back from any road alignment except as prescribed by ordinance;
(iv) payment to be made in respect of works external to the subject land except as prescribed by ordinance.
(2) A requirement prescribed by ordinance does not apply with respect to an approval, consent or permission specified in subsection (1) of this section in a case where, under that subsection, it would be unlawful for the Councilor its delegate to subject the approval, consent or permission to that requirement as a condition thereof.
(3) The provisions of this section do not affect any agreement entered into by an applicant with the Councilor its delegate concerning any of the matters specified in subsection (1) of this section.
Inserted by Act of 1967, No. 43, Part III, s. 16.
20D. Revocation of approval, consent or permission.
(1) Notwithstanding any provision of the Plan or of any ordinance or any condition of an approval, consent or permission to the use or erection of a building or other structure or use of land for any purpose, the Council or its delegate shall not revoke any such approval, consent or permission within two years from the date of the grant thereof except-
(a) upon the request in writing of the owner of the subject land;
or
( b) with the prior consent of the Court.
14 s.21 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967
(2) In the case of an appeal to the Court, an approval, consent or permission to which this section applies shall be deemed to have 1;>een granted by the Council or its delegate on the date when the Court decIded the appeal or, where any step or thing is required to be taken or done by the Council or its delegate to give effect to the decision of the Court, on the date when the Councilor its delegate has taken or done that step or thing.
(3) This section applies to an approval, consent or permission given before the date of the enactment of this section the duration whereof has not expired before that date.
Inserted by Act of 1967, No. 43, Part III, s. 17.
21. Time for appeals by applicants. (1) (a) The Council or its delegate shall decide every application to which sections nine, eighteen, nineteen or 20A of this Act applies within the period prescribed by this subsection, and shall in every such decision state the grounds thereof.
(b) Subject to paragraph (c) of this subsection and to subsection (4) of section twenty-two of this Act such period shall be-
(i) forty days from the date of the receipt by the Council of the application; or
(ii) (if, with the prior approval of the Minister, the Council by notice served upon the applicant before the expiration of the aforesaid period of forty days extends such period for longer than forty days) the longer period specified in the notice.
(c) In this paragraph "objector" means a person who has duly objected to the granting of an application under section nineteen of this Act which the Council proposes to grant.
The Town Clerk shall give to every objector the notification prescribed by subsection (2) of section twenty-two of this Act within the period prescribed by paragraph (b) of this subsection.
(2) Where the Council or its delegate decides an application to which sections nine, eighteen, nineteen or 20A of this Act applies, the Town Clerk shall notify the applicant of such decision within seven days from the date of the making of the decision.
The notification shall state the grounds of the decision.
Where the notification relates to an application to which section nine of this Act applies, it shall contain or be accompanied by a copy of that section and of this section.
Where the notification relates to an application to which section eighteen of this Act applies, it shall contain or be accompanied by a copy of that section and of this section.
Where the notification relates to an application to which section nineteen of this Act applies, it shall contain or be accompanied by a copy of that section and of this section.
Where the notification relates to an application to which section 20A of t~is Act appli~s, it s?all contain or be accompanied by a copy of that sectIon and of thIS sectIon.
An appeal to the Court by an applicant against such decision may be instituted by him within thirty days after the date of the receipt by him of such notice, but not later.
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 s.22 15 (3) Where the Council or its delegate fails to decide an application to which sections nine, eighteen, nineteen or 20A of this Act applies within the prescribed time, the applicant !Day app.eal to t~e Court at ~ny ti~e after the expiration of the prescnbed penod as If the CouncIlor Its delegate had refused the application.
As amended by Act of 1967, No. 43, Part III, s. 18.
22. Objection to application to use land or building or other stmctnre.
(1) Where under the Plan any building or other structure may be erected or used for any purpose on land in any Zone only with the consent of the Councilor its delegate or land in any Zone may be used for any purpose only with the consent of the Councilor its delegate, the Council or its delegate, before deciding any application to erect or use such building or other structure or to use such land for such purpose, shall cause public notice to be given of the application by advertisement published at least once in at least one newspaper circulating in the City and by posting a copy of the advertisement on the land in question.
The copy of the advertisement on the land shall be not less than two feet in height, not less than six square feet in area, and all lettering thereof shall be not less than one inch in height, and the copy shall be posted not more than six feet from the road alignment of the land and so as to be clearly visible from the road and shall be kept so posted at all times during the period of seven days next preceding the date stated in the advertisement as the date on or before which objections may be lodged with the Town Clerk.
Such advertisement shall set out particulars of the application and shall state that objections to the granting of the application may be lodged with the Town Clerk on or before the date specified in the advertisement (which date shall be not earlier than seven days after the date of the publication of the advertisement).
Any such objection shall be in writing, shall be addressed to the Town Clerk and shall set out the grounds of objection and the facts and circumstances relied on by the objector in support of those grounds.
(2) If the Councilor its delegate proposes to grant an application whereof public notice has been given, the Town Clerk shall notify accordingly every person who has duly lodged with him an objection to the granting of the application.
The notification shall contain or be accompanied by a copy of this section.
(3) Subject to this Act, a person who has duly objected to the granting of an application whereof public notice has been given may appeal to the Court against the proposal of the Councilor its delegate to grant the application.
Such appeal shall be instituted within thirty days after the date of the notification given to such person by the Town Clerk, but not later.
Additionally to the Council the applicant shall be deemed to be a respondent to the appeal.
(4) Where a person has duly objected the Council or its delegate shall not decide the application-
(a) until the time for institution of an appeal has expired; or ( b) if an appeal is duly instituted, until the appeal is determined.
16 s.23 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 In the case of an appeal, in making its decision the Councilor its delegate shall be bound by the determination of the appeal.
The Council shall make its decision and the Town Clerk shall notify the applicant thereof with~n seven days after the tim~ f~r institution of an appeal has expired or, If an appeal has been duly InstItuted, after the determination thereof.
The notification shall state the grounds of the decision.
(5) The applicant shall pay to the Council the costs of the advertisement prescribed by this section and shall accompany his application with the amount of such costs.
As amended by Act of 1967, No. 43, Part III, s. 19.
23. Power to purchase or take land. (1) The Council may purchase or, with the prior approval of the Governor in Council, take any land in the City which is required for any purpose of the Plan, whether such land is so required immediately or not.
(2) Without limiting the generality of the provisions of subsection (1) of this section the Council may purchase or, with the prior approval of the Governor in Council, take, any land in the City-
(a) which is required for the development or redevelopment of any part of the City; or
(b) which is required for the purpose of controlling, restricting, limiting or prohibiting access to a road in pursuance of any ordinance in that behalf.
(3) Subsections (1) and (2) of this section apply subject to this subsection.
The provisions of subsections (1) and (2) of this section do not authorise or empower the Council to take under "The Acquisition of Land Act of 1967," any land in the City which is required for the development or redevelopment of any part of the City unless and until such land is included in a zone which permits it to be lawfully used for such development or redevelopment.
( 4) Where land is purchased or taken by the Council for the purpose of development or redevelopment under paragraph (a) of subsection (2) of this section, the Council, with the prior approval of the Governor in Council, may sell the whole or part of the land so purchased or taken.
The sale shall be made by public tender on terms and conditions, to be set out in the conditions of tendering.
If the land or any part of it is sold before it has been developed or redeveloped by the Council, such terms and conditions shall be such as to ensure that the land sold will be developed or redeveloped according to plans and a design approved by the Council.
(5) Until land which is required for development or redevelopment of any part of the City is purchased or taken by the Council pursuant to this section such requirement (whether noted or indicated on any scheme map or not) shall not affect the use which may be lawfully made of the land, or any building or other structure thereon.
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 ss.24-26 17 (6) For the purpos.e of taking under this. section a~y land gr~?ted in fee-simple, the CouncIl shall be a constructmg authOrIty under The Acquisition of Land Act of 1967."
As amended by Act of 1967, No. 48, s. 3 (2), Sch. 1, Part II.
Act referred to:
Acquisition of Land Act of 1967.
24. Offences. A person who in any respect contravenes or fails to comply with the provisions of the Plan shall be guilty of an offence under this Act and liable to a penalty not exceeding one hundred dollars and additionally in the case of a continuing offence, to a daily penalty not exceeding ten dollars for each and every day on which the offence is continued.
Any offence under this Act may be prosecuted in a summary way under "The Justices Acts, 1886 to 1964."
Any right or remedy had by the Council in respect of any act or omission of or by any person shall not be prejudiced or affected in any way by the fact that such act or omission constitutes an offence under this Act for which no person has been prosecuted.
Decimal currency references substituted pursuant to section 7 of Decimal Currency Act of 1965.
Act referred to:
Justices Acts, 1886 to 1968.
25. Ordinances. (1) The power of Brisbane City Council to make ordinances shall include power to make all such ordinances as are necessary or convenient to implement the Plan and to provide for, regulate and control the administration and execution of the Plan.
(2) Any ordinance may be made pursuant to this section at any time after the passing of this Act.
(3) Without in any way limiting the power to make ordinances pursuant to this section, the Council may by ordinances made pursuant to this section establish an Advisory Committee charged with the function of advising the Council concerning the exercise and discharge of the responsibilities, powers, authorities and functions of the Council with respect to the Plan.
(4) Advice of the Advisory Committee shall not limit or affect in any way the discretion had by the Council or any delegate or officer of the Council with respect to the exercise or discharge of any responsibility, power, authority, function or duty.
As amended by Act of 1967, No. 43, Part III, s. 20.
26. Proof of Plan. (1) A map or writing certified by the Town Clerk to be a copy of a map or writing which is included in and forms part of the Plan shall be admissible in evidence in any proceedings wherein proof of the part of the Plan in question is relevant and shall be proof of such part and, in the absence of evidence in rebuttal, shall be conclusive such proof.
(2) The Plan may be proved in any proceedings by the production of copies of the maps and writings which the Town Clerk certifies to be respectively included in and to form part of the Plan and which the Town Clerk further certifies together comprise the Plan.
18 ss.27-29 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967
27. The Local Government Court. (1) There shall be a Court called
"The Local Government Court".
The Court shall be constituted by a District Court Judge.
(2) The Governor in Council shall, and may from time to time, by notice published in the Gazette, notify the name of the District Court Judge who will be the judge to constitute the Court.
( 3) It shall be the duty of the District Court Judge so named to constitute the Court until the name of another District Court Judge is notified as hereinbefore prescribed.
(4) For the purpose of enabling the Court to be constituted by a District Court Judge the Governor in Council may appoint a Judge of the District Court additionally to the maximum number prescribed by
"The District Courts Acts, 1958 to 1964," and notwithstanding that the number of District Court Judges in office at the time of such additional appointment is such prescribed maximum number.
The Judge named to constitute the Court may be such additional appointee or any other District Court Judge.
(5) The jurisdiction of the District Court Judge named to constitute the Court shall not be deemed thereby to be limited exclusively to the Court.
Act referred to:
District Courts Acts, 1958 to 1964; see now District Courts Act of 1967.
28. Jurisdiction of the Court. (1) The Court shall hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court, including every appeal which under this Act may be made to the Court.
(2) Save as prescribed by subsection (3) of this section the jurisdiction of the Court under this Act shall be exclusive, and every decision of the Court shall be final and conclusive and shall not be impeached for any informality or want of form, or be appealed against, reviewed, quashed or in any way called in question in any court.
(3) If the Councilor any person feels aggrieved by a decision of the Court on the ground of error or mistake in law on the part of the Court or that the Court had no jurisdiction to make the decision or exceeded its jurisdiction in making the decision, the Councilor such person may, in accordance with the rules of court, appeal from the decision to the Full Court of the Supreme. Court of Queensland.
(4) In respect of any proceeding or matter under an Act other than this Act subsections (2) and (3) of this section apply subject to that other Act.
(5) Seal, etc. The Court shall be a Court of record, and shall have a seal which shall be judicially noticed by all courts and persons acting judicially.
29. Registrar. The Governor in Council shall appoint a Registrar of the Court who shall keep minutes of the proceedings and records of the decisions of the Court, and shall perform such other duties as the Court may direct.
CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967 ss.30·32 19 30. Powers of the Court. (1) For the purposes of the hearing and determination of any matter within its jurisdiction under this Act or any other Act, the Court shall have power to summon any person as a witness and to require and compel him to bring and produce in evidence all documents and writings in his possession or power, and to examine him and to punish him for not attending in pursuance of the summons, or for refusing to give evidence, or for neglecting or refusing to bring and produce any such documents or writings, and for such purpose the Member of the Court shall have the like powers as a Judge of the District Gourt:
Provided that a person shall not be compellable to give evidence incriminating himself.
(2) The Court may take evidence on oath, affirmation, affidavit or declaration, and shall take notes of the evidence.
(3) Every witness summoned shall be entitled to a tender of his reasonable expenses by the party requiring his attendance.
(4) Any party may be represented by his counsel, solicitor or agent.
(5) Subject to the rules of court relating to the exercise in chambers of the jurisdiction of the Court every proceeding shall be heard and determined and the decision thereon shall be pronounced in open court.
(6) The Court may sit in chambers, and may exercise in chambers such jurisdiction as by the rules of court is so exercisable.
31. Costs. The Court may make such order as it thinks fit as to the costs of any proceedings heard and determined by it, including allowances to witnesses attending for the purpose of giving evidence at the hearing. Any such order may be made an order of the District Court and enforced accordingly:
Provided that where the Court has jurisdiction under this Act or any other Act to award costs to or in favour of or amongst any party or parties to any proceeding or matter before the Court, the Court may in its discretion order that such costs shall be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane, according to the scale of oosts prescribed by law for the time being in respect of proceedings in the District Court, and in every such case it shall be within the discretion of the taxing officer to decide the proper scale to be adopted by him in the taxation of such costs.
32. Penalty for interrupting proceedings of the Court. Any person who wilfully interrupts the proceedings of the Court or otherwise misbehaves himself in the presence of the Court, may be excluded from the Court by order of the Court, and shall, whether he is so excluded or not, be liable to a fine, to be imposed by the Court, not exceeding one hundred dollars, and in default of immediate payment shall be liable to be imprisoned by order of the Court for a period not exceeding twenty-eight days.
No summons need be issued against the offender, nor need any evidence be taken, but he may be taken into custody then and there by a member of the Police Force by order of the Court, and called upon to show cause why he should not be fined or otherwise dealt with under this section.
Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965.
20 s.33 CITY OF BRISBANE TOWN PLANNING ACTS, 1964 TO 1967
33. Rules of Court. (1) The Governor in Council, with the concurrence of any two or more Judges of the Supreme Court of whom the Chief Justice of Queensland shall be one, by Order in Council published in the Gazette, may from time to time make all such Rules of Court as may be deemed necessary or convenient for regulating the procedure and practice of the Court and for the purpose of giving full effect to this Act and any other Act conferring jurisdiction, power or authority on the Court.
Without limiting the generality of the foregoing provisions of this section, such Rules of Court may make provision for all or any of the following matters:-
(a) Prescribing the jurisdiction, powers and authorities of the Court which may be exercised by the Member of the Court in chambers and regulating the procedure and practice of the Court in chambers;
(b) The duties of, and the government and conduct of the Registrar and other officers and servants of the Court;
(c) Conferring on the Registrar, either generally or in any particular case and under such circumstances and on such conditions as may be prescribed, the jurisdiction, powers and authorities wholly or in part of the Member of the Court in chambers, and providing for an appeal from the Registrar in the exercise of any such jurisdiction, power or authority to the Member of the Court;
(d) Forms for all matters and proceedings in the Court.
(2) Until rules are made under this Act, the practice and procedure of the Court shall be regulated under and by the rules regulating the practice and procedure of the District Court in civil jurisdiction:
Provided that a party desiring to take a step in a matter or proceeding in respect whereof the Court has jurisdiction, power or authority under this Act or any other Act may apply to the Member of the Court for directions, and any step taken in accordance with the directions given by the Member of the Court shall be deemed to be regular and sufficient.
(3) Every Order in Council made under this section shall- (a) be published in the Gazette;
(b) upon its pUblication in the Gazette be judicially noticed and such publication shall be conclusive evidence of the matters contained therein;
(c) take effect from the date of such publication unless a later date is specified therein for its commencement, in which event it shall take effect from that later date; and
(d) be laid before the Legislative Assembly within fourteen sitting days after such publication if the Legislative Assembly is then in session, and if not, then within fourteen days after the commencement of the next session.
( 4) If the Legislative Assembly passes a resolution of which notice has been given at any time within fourteen sitting days after any Order in Council under this section has been laid before it disallowing such Order in Councilor part thereof that Order in Councilor part shall thereupon cease to have effect, but without prejudice to the validity of anything done in the meantime or to the making of a further Order in Council under this section.
