d01 peel-harvey catchment management bill 2014(82-1) · 2020. 11. 10. · peel-harvey catchment...

82—1 page i

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


Contents

page ii

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


Contents

page iii

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


Contents

page iv

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


Contents

page v

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


Contents

page vi

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


Contents

page vii

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

Western Australia

LEGISLATIVE ASSEMBLY

(Introduced by Mr Chris Tallentire, MLA)


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:


Part 1 Preliminary

s. 1

page 2

Part 1 — Preliminary 1

1. Short title 2

This is the Peel-Harvey Catchment Management Bill 2014. 3

2. Commencement 4

(1) This Act comes into operation on a day to be fixed by 5

proclamation. 6

(2) Different days may be fixed under subsection (1) for different 7

provisions. 8

3. Terms used 9

(1) In this Act, unless the contrary intention appears — 10

Account means the Peel-Harvey Estuary Trust Account referred 11

to in section 34; 12

board means the board of management referred to in section 15; 13

catchment area means the land and waters referred to in 14

section 8; 15

chairman means chairman of the board; 16

committee means a committee established under section 28; 17

Crown land has the meaning given to that term in the Land 18

Administration Act 1997; 19

development means — 20

(a) the erection, construction, demolition, alteration or 21

carrying out of any building, excavation, or other works, 22

in, on, over or under land or waters; and 23

(b) a material change in the use of land or waters; and 24

(c) any other act or activity in relation to land or waters 25

declared by the regulations to constitute development, 26

but does not include any work, act or activity declared by the 27

regulations not to constitute development; 28


Preliminary Part 1

s. 3

page 3

development control area means the land and waters referred to 1

in section 9; 2

Environmental Protection Policy Approval Order means the 3

Environmental Protection (Peel Inlet – Harvey Estuary) Policy 4

Approval Order 1992 made under the Environmental Protection 5

Act 1986; 6

Estuary means the Peel Inlet and Harvey Estuary; 7

estuary protection notice means a notice referred to in 8

section 83; 9

estuary protection strategy means the estuary protection 10

strategy approved and in force under Part 4; 11

Foundation means the Peel-Harvey Catchment Foundation 12

established under section 119; 13

Foundation Account means the Peel-Harvey Catchment 14

Foundation Account referred to in section 123; 15

General Manager means the person appointed as such for the 16

purposes of section 29; 17

high water mark — 18

(a) in relation to tidal waters — means the ordinary high 19

water mark at spring tides; and 20

(b) in relation to non-tidal waters — means the ordinary 21

high water mark at winter level; 22

inspector means — 23

(a) a person designated as such under section 31; or 24

(b) a police officer; 25

land includes tidal land and land covered by water, whether 26

continuously or discontinuously; 27

lot has the meaning given to that term in the Planning and 28

Development Act 2005; 29

management programme means a management programme 30

referred to in section 45 and approved and in force under Part 4; 31

member means a member of the board; 32


Part 1 Preliminary

s. 3

page 4

Minister for Planning means the Minister to whom the 1

administration of the Planning and Development Act 2005 is 2

committed; 3

officer of the Trust means — 4

(a) the General Manager; or 5

(b) a person whose services are provided under 6

section 29(2) or used under section 30(1); or 7

(c) a person engaged under section 21(2)(a)(i); 8

owner means — 9

(a) in relation to freehold land — 10

(i) a holder of the freehold; or 11

(ii) a mortgagee in possession; 12

and 13

(b) in relation to Crown land — 14

(i) the care, control and management of which has 15

been placed in a management body as defined in 16

the Land Administration Act 1997 — that 17

management body; and 18

(ii) which is reserved, set apart or vested for, or 19

dedicated to, the purposes of another written 20

law — the person who is responsible for the 21

administration of that Crown land while it is so 22

reserved, set apart, vested or dedicated; and 23

(iii) other than land referred to in subparagraph (i) 24

or (ii) — the Minister for Lands, as referred to in 25

the Land Administration Act 1997 section 7; 26

prescribed means prescribed by regulations made under 27

this Act; 28

public authority means — 29

(a) a Government department, State trading concern, State 30

instrumentality or State public utility; or 31

(b) a local government or regional local government; or 32


Preliminary Part 1

s. 4

page 5

(c) any other person, whether corporate or not, who or 1

which, under the authority of a written law, administers 2

or carries on for the benefit of the State a social service 3

or public utility; 4

Schedule 3 authority means a person listed in Schedule 3; 5

Statement of Planning Policy No. 21 means the Statement of 6

Planning Policy No. 21 made under the Town Planning and 7

Development Act 1928 8

strategic document means — 9

(a) the estuary protection strategy; or 10

(b) a management programme; or 11

(c) a document approved under section 47; 12

Trust means the Peel Harvey Catchment Trust established by 13

section 13; 14

Trust website means an internet website established by the Trust 15

and maintained for the purposes of this Act and other purposes 16

of the Trust; 17

unallocated Crown land has the meaning given to that term in 18

the Land Administration Act 1997; 19

waters includes the estuarybed and subsoil normally covered by 20

waters when at the high water mark; 21

Western Australian Planning Commission means the body 22

established by the Planning and Development Act 2005 23

section 7. 24

(2) Deposited plans referred to in this Act are those held by the 25

department of the Public Service that principally assists in the 26

administration of the Transfer of Land Act 1893. 27

4. Crown bound 28

This Act binds the Crown in right of the State and, so far as the 29

legislative power of the State permits, the Crown in all its other 30

capacities. 31


Part 1 Preliminary

s. 5

page 6

5. Objectives of Act and principles to be regarded 1

(1) The objectives of this Act are — 2

(a) to provide for the rehabilitation and protection of the 3

Estuary; 4

(b) to provide for the management of activities that affect 5

the ecological and community benefits and amenity of 6

the Estuary; 7

(c) to provide for the needs of future generations in relation 8

to the ecological and community benefits and amenity of 9

the Estuary; 10

(d) to recognise the interests of the Nyungah community 11

and other people in the community with an association 12

with the Catchment area and to provide for their 13

participation in the management of those areas and the 14

management of activities affecting the ecological and 15

community benefits and amenity of those areas; 16

(e) to promote and facilitate the good management of the 17

catchment area to meet the objectives referred to in 18

paragraphs (a) to (d). 19

(2) In pursuing the objectives of this Act regard should be had to 20

the following principles — 21

Table 22

1. Sustainability principles 23

(1) Sound environmental practices and procedures should be 24

adopted as a basis for sustainability for the benefit of all human 25

beings and the environment today, while considering the 26

environmental, social and economic needs of future generations. 27

(2) Environmental, social and economic factors should be 28

considered in decision-making, with the objective of improving 29

community well-being and the benefit to future generations. 30

(3) Environmental practices and procedures should be 31

cost-effective and in proportion to the significance of the 32

environmental risks and consequences being addressed. 33


Preliminary Part 1

s. 5

page 7

2. Precautionary principle 1

(1) Where there are threats of serious or irreversible environmental 2

damage, lack of full scientific certainty should not be used as a 3

reason for postponing measures to prevent environmental 4

degradation. 5

(2) In the application of the precautionary principle, 6

decision-making should be guided by — 7

(a) a careful evaluation to avoid serious or irreversible 8

damage to the environment wherever possible; and 9

(b) an assessment of the risk-weighted consequences of the 10

options. 11

3. Intergenerational equity 12

The present generation should ensure that the health, diversity 13

and productivity of the environment are maintained or enhanced 14

for the benefit of future generations. 15

4. Biodiversity and ecological integrity 16

Biodiversity and ecological integrity should be maintained or 17

enhanced as part of the irreplaceable life support systems upon 18

which the earth depends. 19

5. Shared responsibility 20

Protection of the environment is a responsibility shared by 21

Government, industry, business, the community and the people 22

of the State. 23

6. Best practice 24

When designing policies, systems, procedures or technologies, 25

the best practicable measures available at the time should be 26

used. 27

7. Continuous improvement 28

Implementation of natural resource management should aim for 29

continuous improvement and extend beyond compliance with 30

relevant laws and requirements. 31


Part 1 Preliminary

s. 6

page 8

8. Accountability and transparency 1

(1) Members of the community should be given — 2

(a) access to reliable and relevant information; and 3

(b) opportunities to participate in policy and programme 4

development. 5

(2) Decisions should be made in a transparent manner and be made 6

public. 7

6. Application of s. 5; relationship of this Act to other Acts; 8

disputes etc. between Trust and Sch. 3 authority 9

(1) Persons involved in the administration of this Act, and 10

Schedule 3 authorities, should perform their functions with due 11

regard to the objectives and principles of this Act. 12

(2) The provisions of any other written law must be construed and 13

applied — 14

(a) with due regard to the objectives and principles of this 15

Act; and 16

(b) so that those objectives and principles are paramount, 17

unless that construction or application would — 18

(c) be inconsistent with the objects and intentions of that 19

written law; or 20

(d) substantially interfere with the operation of the 21

provisions of that written law. 22

(3) Except where the contrary intention is expressed in this Act, the 23

vesting in the Trust of functions in respect of the catchment area 24

and development control area does not limit the functions vested 25

by any written law in any other person in respect of those areas. 26

(4) If a provision of this Act, other than a provision of Part 5, is in 27

conflict with a power conferred on a Schedule 3 authority by a 28

written law, the Schedule 3 authority and the Trust must 29

endeavour to reach agreement as to which provision will 30

prevail. 31


Preliminary Part 1

s. 6

page 9

(5) If a question, difference or dispute arises, or may arise, between 1

a Schedule 3 authority and the Trust as to the rights, powers or 2

authority of, or the discharge of any duty by, a Schedule 3 3

authority, or as to their respective functions or interests, on a 4

matter referred to in subsection (4), then — 5

(a) if the matter relates to the functions of a government 6

department — the Minister charged with the 7

administration of that government department (the 8

Schedule 3 Minister) may consult with the Minister; 9

(b) if the matter relates to the functions of a statutory 10

authority — the Minister to whom the Governor has 11

committed the Act under which the statutory authority is 12

established or continued (the Schedule 3 Minister) may 13

consult with the Minister. 14

(6) If the Ministers agree after consultation under subsection (5), 15

the Schedule 3 Minister must give the Schedule 3 authority, and 16

the Minister must give the Trust, such directions as result from 17

the consultation and agreement. 18

(7) If no consultation under subsection (5) is concluded or the 19

Ministers cannot agree as to the matter, the matter may be 20

finally and conclusively determined by the Governor, and effect 21

must be given to the determination. 22

(8) The Governor may finally and conclusively determine any 23

question, difference or dispute arising or about to arise between 24

a Schedule 3 authority and the Trust as to the rights, powers or 25

authority of, or the discharge of any duty by, a Schedule 3 26

authority, or as to their respective functions or interests, on a 27

matter referred to in subsection (4) whether or not referred to 28

the Governor under subsection (7) and whether or not the 29

Ministers had purported to agree under subsection (6), and 30

effect must be given to the determination. 31

(9) Without limiting subsection (4), the regulations may make 32

provision as to the manner and circumstances in which a 33

conflict referred to in subsection (4) must be brought to the 34

notice of the Trust. 35


Part 1 Preliminary

s. 7

page 10

(10) The performance of a function by the Trust or a Schedule 3 1

authority cannot be appealed against, reviewed, quashed, 2

challenged, or called in question, before or by any person acting 3

judicially or a court or tribunal on any account or by any means 4

on the ground that the performance of the function does not 5

comply with subsection (1) or (2). 6

7. Native title rights and interests, how affected by this Act 7

(1) In this section — 8

affect has the meaning given to that term in the NTA 9

section 227; 10

native title rights and interests has the meaning given to that 11

term in the NTA section 223; 12

NTA means the Native Title Act 1993 of the Commonwealth. 13

(2) Nothing done by or under this Act operates to affect any native 14

title rights and interests. 15

(3) Subsection (2) does not apply to the extent that the effect on 16

those rights and interests is valid by the operation of, or by 17

anything done under, the NTA or another law of this State. 18


Land and waters to which this Act applies Part 2

s. 8

page 11

Part 2 — Land and waters to which this Act applies 1

8. Catchment area defined (Sch. 1) 2

A reference in this Act to the catchment area is a reference to 3

the land and waters within the area for the time being described 4

in Schedule 1. 5

9. Development control area defined (Sch. 1 and 2) 6

(1) A reference in this Act to the development control area is a 7

reference to the land and waters that are — 8

(a) within the catchment area; and 9

(b) within the area for the time being described in 10

Schedule 2. 11

10. Sch. 1 and 2, amending by regulations 12

(1) The regulations may amend or add detail to Schedule 1 or 2 — 13

(a) by adding any area to the catchment area or 14

development control area; 15

(b) by excising any area from the catchment area or 16

development control area; 17

(c) by deleting the catchment area or development control 18

area and substituting another area for it. 19

(2) Before regulations are made for the purposes of subsection (1) 20

the Minister must consult with — 21

(a) the Minister for Planning; and 22

(b) any other Minister of the Crown that the Minister 23

considers has a relevant interest in the regulations; and 24

(c) the local government — 25

(i) of the district in which any proposed new 26

boundary is located; and 27

(ii) of the district in which the existing boundary that 28

would be amended is located; 29

and 30


Part 2 Land and waters to which this Act applies

s. 11

page 12

(d) any other public authority that has the care, control or 1

management of land likely to be added to, excised from, 2

or substituted for, land in the catchment area. 3

(3) Regulations referred to in subsection (1) may provide for the 4

substitution of a plan for a plan referred to in Schedule 1 or 2, or 5

for the amendment of an area by reference to a further plan. 6

11. Boundaries of catchment area etc., proving 7

(1) In any proceedings — 8

(a) a plan purporting to be a copy of a plan referred to in 9

Schedule 1 or 2 showing the boundaries or any boundary 10

of the catchment area; or 11

(b) a notice published under section 12(3) of the location of 12

a boundary of the catchment area, 13

is evidence of those boundaries or that boundary. 14

(2) A person may not assert the invalidity of a plan referred to in 15

Schedule 1 or 2 on the ground of error, misdescription, 16

irregularity or uncertainty if the error, misdescription, 17

irregularity or uncertainty did not in fact mislead the person in a 18

material way. 19

12. Boundaries of catchment area etc., resolving questions as to 20

(1) If any question arises as to the boundary of the catchment area, 21

the Trust, after giving the persons interested in the resolution of 22

the question the opportunity to make submissions to it, must 23

refer the question to the Minister with its opinion. 24

(2) The Minister must submit the matter, together with the Trust’s 25

opinion, to the Governor for decision as to what is, or is to be 26

treated as, the boundary of the catchment area, and the 27

Governor’s decision is final. 28


Land and waters to which this Act applies Part 2

s. 12

page 13

(3) If any part of the boundary of the catchment area is determined 1

by the Governor under subsection (2) — 2

(a) the boundary of the catchment area is to be taken to be 3

the boundary determined by the Governor; and 4

(b) the Minister must cause — 5

(i) the location of that boundary to be notified in the 6

Gazette; and 7

(ii) a copy of the notice to be kept with the plans 8

referred to in Schedule 1 or 2, whichever is 9

relevant. 10


Part 3 Peel-Harvey Catchment Trust

Division 1 Establishment and management

s. 13

page 14

Part 3 — Peel-Harvey Catchment Trust 1

Division 1 — Establishment and management 2

13. Trust established and nature of 3

(1) A body called the Peel Harvey Catchment Trust is established. 4

(2) The Trust is a body corporate with perpetual succession. 5

(3) Proceedings may be taken by or against the Trust in its 6

corporate name. 7

14. Trust is agent of Crown etc. 8

The Trust is an agent of the Crown and has the status, 9

immunities and privileges of the Crown. 10

15. Board of management of Trust 11

(1) The Trust is to have a board of management. 12

(2) The board is the governing body of the Trust. 13

(3) The board, in the name of the Trust, is to perform the functions 14

of the Trust under this Act or any other written law. 15

16. Board, membership of 16

(1) The members of the board are — 17

(a) 6 members appointed by the Minister, none of whom is 18

an elected member of the council of a local government; 19

and 20

(b) the person holding or acting in the office of chief 21

executive officer of the department principally assisting 22

in the administration of the Planning and Development 23

Act 2005, or a nominee of the chief executive officer 24

approved by the Minister; and 25

(c) a person appointed by the Minister whose name is 26

included in a panel of 3 names submitted to the Minister 27


Peel-Harvey Catchment Trust Part 3

Establishment and management Division 1

s. 16

page 15

by the Western Australian Local Government 1

Association. 2

(d) a person appointed by the Minister whose name is 3

included in a panel of 3 names submitted to the Minister 4

by the Peel Harvey Catchment Council. 5

(2) As far as is practicable, the membership of the board must 6

comprise persons who between them have knowledge of, and 7

experience in, the fields of conservation, natural resource 8

management, recreation, tourism, planning, development, 9

matters of interest to the rural community and matters of interest 10

to the Nyungah community. 11

(3) The member appointed under subsection (1)(d) shall be the 12

chairman of the board. 13

(4) Before appointing a member under subsection (1)(a) the 14

Minister must publish in a newspaper circulating throughout the 15

State a notice calling for expressions of interest in appointment 16

to the board. 17

(5) The Minister must consider expressions of interest lodged in 18

accordance with the notice but may appoint a person as a 19

member of the board whether or not the person has lodged an 20

expression of interest. 21

(6) Where the submission of a panel of names is required for the 22

purposes of subsection (1)(c), the submission must be made to 23

the Minister, in writing signed on behalf of the Western 24

Australian Local Government Association, within such 25

reasonable time after the receipt by it of a notice from the 26

Minister that such submission is required as is specified in the 27

notice. 28

(7) Where the submission of a panel of names is required for the 29

purposes of subsection (1)(d), the submission must be made to 30

the Minister, in writing signed on behalf of the Peel-Harvey 31

Catchment Council, within such reasonable time after the 32

receipt by it of a notice from the Minister that such submission 33

is required as is specified in the notice. 34



Division 1 Establishment and management

s. 17

page 16

(8) If the submission has not been made in accordance with 1

subsection (6) or (7) within the time specified under that 2

subsection the Minister may nominate an elected member of the 3

council of a local government to be a member of the board in 4

place of the person provided for by subsection (1)(c) or (1)(d). 5

17. Board, constitution and proceedings of (Sch. 4) 6

Schedule 4 has effect. 7

18. Remuneration and allowances of members 8

(1) In subsection (2) — 9

member means a member appointed under section 16(1)(a), (c) 10

or (d) and a member of a committee. 11

(2) A member is to be paid such remuneration and travelling and 12

other allowances as are determined, in the case of that member, 13

by the Minister on the recommendation of the Public Sector 14

Commissioner. 15

19. Local governments attendance of nominees of at board 16

meetings 17

(1) Subject to subsections (4) and (5), the chairman must by notice 18

specifying the time and place of a meeting of the board, request 19

a local government referred to in Schedule 3 to nominate a 20

person to attend or participate in that meeting if a matter to be 21

considered at that meeting is a relevant matter for that local 22

government. 23

(2) A relevant matter for a local government is one that — 24

(a) relates to a development or proposed development in a 25

part of the catchment area that is in or adjoins the district 26

of that local government; or 27

(b) is in the opinion of the chairman a matter that affects or 28

is likely to affect the interest of that local government in 29

a material way and to an extent that is greater than the 30

extent to which other local governments referred to in 31

Schedule 3 are affected. 32



Functions and powers Division 2

s. 20

page 17

(3) A notice under subsection (1) must be given — 1

(a) in writing to the local government not less than 14 clear 2

days before the meeting; or 3

(b) in writing or by facsimile or electronic communication 4

to the local government within such lesser period as the 5

local government may, by notice in writing or by 6

facsimile or electronic communication, agree. 7

(4) A nomination under subsection (1) must be made — 8

(a) if not less than 14 clear days notice of the meeting has 9

been given, in writing delivered to the board not later 10

than 3 clear days before the meeting; or 11

(b) if the local government or redevelopment authority has 12

agreed to a lesser period of notice, in writing or by 13

facsimile or electronic communication before the 14

meeting commences. 15

(5) A person nominated under subsection (1) is entitled to attend or 16

participate in a meeting for the purpose of determining any 17

relevant matter in relation to which the person is nominated, and 18

to attend or participate in any subsequent meeting that the 19

chairman may request the person to attend in connection with 20

that matter, and has all of the functions of a member in relation 21

to the consideration of that matter at any such meeting. 22

Division 2 — Functions and powers 23

20. Functions of Trust 24

The functions of the Trust are — 25

(a) to improve the social, economic, ecological, aesthetic, 26

and recreational potential of the estuary; and 27

(b) to work with the local governments listed in Schedule 3 28

to ensure the achievement of environmental quality 29

objectives under the Environmental Protection Policy 30

Approval Order; and 31



Division 2 Functions and powers

s. 20

page 18

(d) to establish targets for ecological and community 1

benefits and amenity of the Estuary, and mechanisms 2

evaluating achievement of those targets; and 3

(e) to coordinate and promote the development and 4

implementation of strategic documents under this Act; 5

and 6

(f) to coordinate and promote the activities of other bodies 7

that have functions in relation to the catchment area, 8

insofar as those functions may affect the Estuary, 9

including the implementation of any strategic documents 10

applicable to the catchment area; and 11

(g) to monitor and report to the Minister on — 12

(i) whether changes to land use are appropriately 13

controlled in line with the Statement of Planning 14

Policy No. 21; and 15

(ii) the achievement and maintenance of 16

environmental quality objectives in line with the 17

Environmental Protection Policy Approval Order 18

and as prescribed by regulations; 19

(iii) the state of the development control area; 20

(iv) development on or adjacent to the development 21

control area; 22

and 23

(i) to provide advice to the Western Australian Planning 24

Commission on State planning policies and planning 25

scheme provisions relating to any matter within its 26

functions, and to publish other statements of policy 27

relating to any matter within its functions; and 28

(j) to provide advice and promote public education on any 29

matter within its functions; and 30

(k) to perform such functions as are delegated to it under 31

any other written law; and 32

(l) to otherwise undertake the administration and 33

enforcement of this Act; and 34




s. 21

page 19

(m) to perform any other function vested in it by this Act or 1

any other written law. 2

21. Powers of Trust 3

(1) The Trust has all the powers it needs to perform its functions 4

under this Act or any other written law. 5

(2) Subject to any limitation imposed by this Act or another written 6

law, the Trust may, for the purpose of performing any of its 7

functions under this Act or any other written law — 8

(a) enter into any contract or arrangement, including a 9

contract or arrangement with a person for — 10

(i) the performance of the function by that person on 11

behalf of the Trust; or 12

(ii) the supply of equipment or services; 13

and 14

(b) act as an agent or provide consultancy, professional, or 15

technical services or other assistance under a contract for 16

services or other arrangement; and 17

(c) carry out any investigation, survey, exploration, 18

feasibility study, evaluation, or review; and 19

(d) collaborate in, carry out, or procure the carrying out of, 20

research and publish information that results from the 21

research; and 22

(e) produce and publish information on matters related to its 23

functions. 24

(3) Subsection (2) does not limit subsection (1) or any of the Trust’s 25

other powers. 26




s. 22

page 20

22. Consultation and matters to be considered by Trust 1

(1) The Trust must, so far as is practicable and consistent with 2

this Act — 3

(a) consult and collaborate with persons that are affected in 4

a material way by the performance of its functions; and 5

(b) have regard, in the performance of its functions, to — 6

(i) protection and enhancement of the ecological 7

and community benefits and amenity of the 8

Estuary; and 9

(ii) the significance of the waters in the Estuary to 10

the Nyungah community; and 11

(iii) the requirements of public recreation; and 12

(iv) the need to preserve right of access for the public 13

to waters in the Estuary; and 14

(v) the interests of navigation, fisheries, agriculture 15

and water supply. 16

(2) The Trust must consult and collaborate with any body that 17

appears to the Trust to have a role in regional natural resource 18

management in the catchment area to ensure that, to the extent 19

that is practicable, there is consistency between the strategies 20

and programmes of the Trust and the functions of that body, to 21

the extent to which those functions may affect the Estuary. 22

23. Local governments, consultation by Trust with 23

(1) If it appears to the Trust that a measure proposed to be taken by 24

the Trust, not being a matter to which Part 4 applies or a 25

development to which Part 5 applies, is one that affects or is 26

likely to affect the interests of a local government referred to in 27

Schedule 3, in a material way, the Trust must refer the proposal 28

to the local government. 29

(2) If a proposal is referred to it, the local government may make 30

submissions to the Trust on the proposal. 31




s. 24

page 21

(3) The Trust must have regard to those submissions — 1

(a) in any report, advice or recommendation that it intends 2

to submit to the Minister on the proposal; and 3

(b) if it undertakes the proposal. 4

(4) The local government must be notified of any decision in 5

respect of the proposal — 6

(a) by the Minister, in the case of a decision by the Minister; 7

and 8

(b) by the Trust, in the case of a decision by the Trust. 9

24. Collaborative arrangements, Trust may enter etc. 10

(1) Subject to this section, the Trust may enter into a collaborative 11

arrangement with any other person — 12

(a) binding that person to undertake programmes of a kind 13

specified in the arrangement and directed towards 14

protection and enhancement of the ecological and 15

community benefits and amenity of the Estuary or any 16

part of the Estuary; or 17

(b) providing for measures to be taken jointly with that 18

person relating to any matter that is within the functions 19

of the Trust and that other person. 20

(2) The term of a collaborative arrangement must not exceed 21

5 years but on its expiry a further collaborative arrangement 22

may be made. 23

(3) A collaborative arrangement under this section may contain 24

terms providing for any matter that the Trust considers 25

appropriate for securing the objectives of this Act, including 26

terms — 27

(a) providing for measures to be taken jointly by the parties 28

to the arrangement; and 29

(b) binding the Trust to provide financial or other assistance 30

of any kind to the other party or parties or any of them; 31

and 32




s. 25

page 22

(c) relating to the objectives and performance standards to 1

be met by a party other than the Trust; and 2

(d) requiring a party to report to the Trust in relation to the 3

party’s obligations under the agreement; and 4

(e) as to the monitoring functions of the Trust; and 5

(f) as to the means by which disputes under the 6

arrangement may be dealt with; and 7

(g) as to procedures for varying and enforcing the 8

arrangement. 9

(4) The Trust must not enter into a collaborative arrangement under 10

this section except with the prior approval of the Minister. 11

(5) For the purposes of subsection (4) the Minister may approve a 12

specific collaborative arrangement or class of collaborative 13

arrangement. 14

(6) A collaborative arrangement does not have effect to relieve a 15

party to the arrangement from any duty under this or any other 16

Act, and any obligations imposed under such an arrangement 17

have effect in addition to and not in derogation of the 18

requirements imposed by or under this or any other Act. 19

25. Delegation by Trust etc. 20

(1) In subsection (2) — 21

eligible person means — 22

(a) a member; 23

(b) a committee or a member of the committee; 24

(c) an officer of the Trust; 25

(d) an inspector; 26

(e) a public authority or a member or officer of a public 27

authority or a member of the council of, or an employee 28

of, a local government. 29




s. 25

page 23

(2) Subject to subsection (3), the Trust may, by resolution, delegate 1

to an eligible person any function of the Trust under another 2

provision of this Act or any other written law. 3

(3) The Trust — 4

(a) must not delegate a function vested in it by section 67, 5

69, 73, 77, 81, 83 or 91; and 6

(b) must not delegate any other function vested in it under 7

Part 5 except to the General Manager. 8

(4) A resolution under subsection (2) takes effect when notice of the 9

resolution is published in the Gazette. 10

(5) The Trust may in a delegation under subsection (2) empower a 11

public authority to subdelegate a function delegated to it under 12

this section to — 13

(a) in the case of a public authority that is not a local 14

government — a committee of, a member of, or an 15

officer of, the authority; or 16

(b) in the case of a local government — the council of, a 17

committee of, or an employee of, the local government, 18

or a member of the council of the local government. 19

(6) Except as provided in subsection (5), a delegate or subdelegate 20

must not further delegate any function. 21

(7) A person exercising or performing a function that has been 22

delegated to the person under this section is to be taken to do so 23

in accordance with the terms of the delegation unless the 24

contrary is shown. 25

(8) Nothing in this section limits the ability of the Trust to perform 26

a function through an officer or agent. 27

(9) This section does not apply to the execution of documents but 28

the authority to execute documents on behalf of the Trust can be 29

given under section 38. 30




s. 26

page 24

26. Minister may give Trust directions 1

(1) The Minister may give written directions to the Trust with 2

respect to the exercise or performance of its functions, either 3

generally or in relation to a particular matter, and the Trust must 4

give effect to any such direction. 5

(2) The text of a direction under subsection (1) must be included in 6

the annual report submitted by the accountable authority of the 7

Trust under the Financial Management Act 2006 Part 5. 8

27. Minister to have access to information 9


document includes any tape, disc or other device or medium on 11

which information is recorded or stored; 12

information means information specified, or of a description 13

specified, by the Minister that relates to the functions of the 14

Trust. 15

(2) The Minister is entitled to have information in the possession of 16

the Trust and, if the information is in or on a document, to have, 17

and make and retain copies of, that document. 18

(3) For the purposes of subsection (2) the Minister may — 19

(a) request the Trust to provide information to the Minister; 20

and 21

(b) request the Trust to give the Minister access to 22

information; and 23

(c) for the purposes of paragraph (b) make use of the 24

officers of the Trust to obtain the information and 25

provide it to the Minister. 26

(4) The Trust must comply with a request under subsection (3) and 27

make its officers and facilities available to the Minister for the 28

purposes of paragraph (c) of that subsection. 29



Staff and facilities Division 3

s. 28

page 25

28. Committees, Trust may appoint etc. 1

(1) The Trust may appoint committees to assist it in the 2

performance of its functions, and may discharge or alter any 3

committee so appointed. 4

(2) A committee may include persons who are not members of the 5

board. 6

(3) Subject to the directions of the Trust and to the terms of any 7

delegation under section 25, a committee may determine its own 8

procedures. 9

Division 3 — Staff and facilities 10

29. General Manager and staff 11


chief executive officer means the chief executive officer of the 13

department of the Public Service principally assisting in the 14

administration of the Environmental Protection Act 1986. 15

(2) The chief executive officer must provide the Trust with the 16

services of such public service officers, including a General 17

Manager, and other professional, technical and administrative 18

staff as the Trust may reasonably require to perform its 19

functions. 20

(3) Subject to the control of the board, the General Manager is to 21

administer the day to day operations of the Trust. 22

(4) The General Manager is entitled to attend any meeting of the 23

board and to take part in the consideration and discussion of any 24

matter before a meeting, but cannot vote on any matter. 25

(5) The General Manager and other officers of the Trust are not, in 26

the performance of their functions under this Act, subject to the 27

direction of the chief executive officer. 28



Division 4 Inspectors

s. 30

page 26

30. Government staff and facilities, use of by Trust 1

(1) The Trust may by arrangement with the relevant employer make 2

use, either full-time or part-time, of the services of any officer 3

or employee — 4

(a) in the Public Service; or 5

(b) in a State agency or instrumentality; or 6

(c) otherwise in the service of the State. 7

(2) The Trust may by arrangement with — 8

(a) a department of the Public Service; or 9

(b) a State agency or instrumentality, 10

make use of any facilities of the department, agency or 11

instrumentality. 12

(3) The Trust must not enter into an arrangement under 13

subsection (1) or (2) without the prior approval of the Minister. 14

(4) An arrangement under subsection (1) or (2) is to be made on 15

such terms as are agreed to by the parties. 16

(5) An officer or employee provided under this section is not, in the 17

performance of his or her functions under this Act, subject to the 18

direction of his or her employer. 19

Division 4 — Inspectors 20

31. Inspectors, designating etc. 21

(1) The Trust may, by instrument in writing, designate an officer of 22

the Trust or other officer of a public authority as an inspector. 23

(2) An inspector may perform such of the functions of an inspector 24

as may be specified in his or her instrument of designation. 25

(3) The Trust may revoke a designation under subsection (1) at any 26

time. 27

(4) A police officer is ex officio an inspector. 28



Financial provisions Division 5

s. 32

page 27

32. Identity cards for inspectors 1

(1) The General Manager must issue to an inspector an identity card 2

stating that he or she has been designated as an inspector. 3

(2) An inspector must produce the identity card whenever requested 4

to do so by any person in respect of whom the inspector has 5

exercised, or is about to exercise, a power under Part 7 6

Division 2. 7

(3) Production of an identity card is evidence in any court of the 8

designation of the inspector to whom the identity card relates. 9

(4) A person who ceases to be an inspector must, as soon as 10

practicable, return his or her identity card to the General 11

Manager or other person authorised to receive it. 12

Penalty: a fine of $10 000. 13

(5) This section does not apply to an inspector who is a police 14

officer. 15

Division 5 — Financial provisions 16

33. Trust's funds 17

(1) Subject to this Act, the Trust is responsible for managing its 18

own finances. 19

(2) The funds available to the Trust to enable it to perform its 20

functions under this Act or any other written law are — 21

(a) moneys borrowed under section 37; and 22

(b) any other moneys lawfully received by, made available 23

to, or payable to, the Trust under this Act or any other 24

written law. 25

(3) Where any moneys or property, including moneys or property 26

representing a gift by will, have been accepted by the Trust 27

upon lawful conditions, it must apply the moneys or property in 28

accordance with those conditions. 29



Division 5 Financial provisions

s. 34

page 28

34. Peel Harvey Catchment Trust Account 1

(1) An account called the Peel Harvey Catchment Trust Account is 2

to be established — 3

(a) as an agency special purpose account under the 4

Financial Management Act 2006 section 16; or 5

(b) with the approval of the Treasurer, at a bank as defined 6

in section 3 of that Act, 7

to which the funds referred to in section 33 must be credited. 8

(2) All expenditure incurred by the Trust for the purposes of 9

performing its functions under this Act, including the repayment 10

of moneys borrowed by the Trust under section 37, is to be 11

charged to the Account and moneys standing to the credit of that 12

Account must be applied only for the purposes of this Act. 13

35. Temporary investment of moneys 14

If section 34(1)(b) applies, moneys standing to the credit of the 15

Account may, until required by the Trust for the purposes of this 16

Act, be temporarily invested by the Trust in such manner as the 17

Treasurer approves. 18

36. Financial Management Act 2006 and Auditor General 19

Act 2006, application of 20

The provisions of the Financial Management Act 2006 and the 21

Auditor General Act 2006 regulating the financial 22

administration, audit and reporting of statutory authorities apply 23

to and in relation to the Trust and its operations. 24

37. Power to borrow from Treasurer 25

The Trust may borrow from the Treasurer such amounts as the 26

Treasurer approves on such conditions relating to repayment, 27

payment of interest or any other matter as the Treasurer 28

imposes. 29



Miscellaneous Division 6

s. 38

page 29

Division 6 — Miscellaneous 1

38. Execution of documents 2

(1) The Trust is to have a common seal. 3

(2) A document is duly executed by the Trust if — 4

(a) the common seal of the Trust is affixed to it in 5

accordance with subsections (3) and (4); or 6

(b) it is signed on behalf of the Trust by a person or persons 7

authorised to do so under subsection (5). 8

(3) The common seal of the Trust must not be affixed to any 9

document except as authorised by the Trust. 10

(4) The common seal of the Trust must be affixed to a document in 11

the presence of the chairman and another member, or the 12

chairman and an officer of the Trust authorised by the Trust 13

either generally or in any particular case to be so present, and 14

each of them must sign the document to attest that the common 15

seal was so affixed. 16

(5) The Trust may, by writing under its common seal, authorise a 17

member or members or an officer or officers of the Trust to sign 18

documents on behalf of the Trust, either generally or subject to 19

such conditions or restrictions as are specified in the 20

authorisation. 21

(6) A document purporting to be executed in accordance with this 22

section is to be presumed to be duly executed until the contrary 23

is shown. 24

(7) A document executed by a person under this section without the 25

common seal of the Trust is not to be regarded as a deed unless 26

the person executes it as a deed and is authorised under 27

subsection (5) to do so. 28

(8) When a document is produced bearing a seal purporting to be 29

the common seal of the Trust, it is to be presumed that the seal 30

is the common seal of the Trust until the contrary is shown. 31


Part 4 Targets and strategic documents

Division 1 Environmental quality targets

s. 39

page 30

Part 4 — Targets and strategic documents 1

Division 1 — Environmental quality targets 2

39. Regulations may prescribe targets 3

(1) The regulations may prescribe — 4

(a) environmental quality targets for the Estuary over and 5

above those set out in the Environmental Protection 6

Policy Approval Order; and 7

(b) targets for the catchment area that relate to the 8

achievement of the targets prescribed under 9

paragraph (a). 10

(2) Without limiting subsection (1) the regulations may — 11

(a) prescribe targets for levels of phosphorus, nitrogen or 12

other pollutants in waters; 13

(b) make provision for — 14

(i) monitoring protocols; and 15

(ii) sampling procedures; and 16

(iii) standards, criteria and benchmarks; and 17

(iv) statistical treatments; and 18

(v) reporting procedures, 19

in relation to measuring the targets prescribed under 20

subsection (1) or paragraph (a) of this subsection. 21

(3) A failure to meet a target or a contravention of a regulation 22

prescribing a target is not an offence. 23

40. Consultation with public authorities etc. about proposed 24

s. 39 regulations 25

Before regulations are made in relation to a matter referred to in 26

section 39 the Trust must endeavour to consult with any public 27

authority or person which or who appears to the Minister to be 28

likely to be affected in a material way by the regulations. 29


Targets and strategic documents Part 4

Environmental quality targets Division 1

s. 41

page 31

41. Draft s. 39 regulations to be published etc. 1

(1) The Trust must — 2

(a) deposit copies of draft regulations proposed to be made 3

in relation to a matter referred to in section 39 for public 4

inspection during ordinary business hours free of charge 5

at the office of the Trust; and 6

(b) publish the draft regulations on the Trust website. 7

(2) As soon as practicable after the deposit of the copies of the draft 8

regulations under subsection (1)(a) the Trust must publish — 9

(a) in the Gazette; and 10

(b) in 2 issues of a daily newspaper circulating throughout 11

the State, 12

a notice — 13

(c) specifying the places at which copies of the draft 14

regulations may be inspected and obtained; and 15

(d) stating the effect of section 42 and specifying the period 16

referred to in that section. 17

(3) The Trust may fix and charge a fee for supplying a copy of draft 18

regulations. 19

42. Public submissions about draft s. 39 regulations 20

Submissions on draft regulations proposed to be made in 21

relation to a matter referred to in section 39 may be made, in the 22

form, if any, approved by the Trust, by any person — 23

(a) within a period determined by the Trust that is not less 24

than 60 days after the day on which the notice is 25

published in the Gazette under section 41(2)(a); and 26

(b) by delivering or posting them so that they are received 27

within that period at the offices of the Trust. 28



Division 2 Strategic documents

s. 43

page 32

Division 2 — Strategic documents 1

43. Estuary protection strategy, content of 2

(1) The estuary protection strategy must — 3

(a) establish coordinated management arrangements 4

necessary for the protection and enhancement of the 5

ecological and community benefits and amenity of the 6

Estuary, and the meeting of the targets referred to in 7

section 39; and 8

(b) specify — 9

(i) the persons who, in addition to the Trust, are 10

responsible for those management arrangements; 11

and 12

(ii) their responsibilities under those management 13

arrangements. 14

(2) Without limiting subsection (1), the estuary protection strategy 15

may — 16

(a) establish objectives and performance standards for the 17

coordinated management of the catchment area; and 18

(b) provide for the development of key strategies and broad 19

programmes to achieve the objectives of this Act; and 20

(c) specify reporting and compliance requirements of 21

Schedule 3 authorities; and 22

(d) set out requirements for the assessment of the state of 23

the Estuary and their ecological and community benefits 24

and amenity, and for reporting on the effectiveness of 25

the estuary protection strategy; and 26

(e) set out protocols for the acquisition, assessment and 27

storage of information relating to requirements under 28

paragraph (d). 29

(3) The estuary protection strategy may specify the period within 30

which any action recommended in the strategy must be 31

implemented. 32



Strategic documents Division 2

s. 44

page 33

44. Water Quality Improvement Plan for the Rivers and 1

Estuary of the Peel Harvey System (2008), temporary effect 2

of 3

The Water Quality Improvement Plan for the Rivers and 4

Estuary of the Peel-Harvey System (2008) has effect as 5

guidelines for management arrangements for the protection and 6

enhancement of the ecological and community benefits and 7

amenity of the Estuary until the estuary protection strategy is 8

approved under this Part. 9

45. Management programmes, content of 10

(1) A management programme may — 11

(a) specify the objectives of the management programme in 12

relation to the protection and enhancement of the 13

ecological and community benefits and amenity of the 14

Estuary; and 15

(b) identify the areas or activities to which the management 16

programme applies, including areas that require priority 17

protection and areas requiring priority remediation; and 18

(c) specify the management arrangements to be 19

implemented. 20

(2) A management programme in relation to the development 21

control area must include policies and guidelines proposed to be 22

followed by the Trust in relation to development in the 23

development control area. 24

(3) A management programme may specify the period within which 25

any action recommended in the management programme must 26

be implemented. 27

(4) A management programme must be consistent with the estuary 28

protection strategy. 29

(5) A management programme must not disclose any information or 30

matter communicated in confidence for the purposes of this Act 31

or which would or might reasonably be expected to cause 32



Division 2 Strategic documents

s. 46

page 34

damage to the interests of the person from whom the 1

information was received. 2

46. Codes and subsidiary legislation, estuary protection strategy 3

and management programme may adopt 4


code means a code, standard, rule, specification or other 6

document, made in or outside Australia, that does not by itself 7

have legislative effect in this State. 8

(2) The estuary protection strategy or a management programme 9

may adopt, either wholly or in part or with modifications — 10

(a) any code; or 11

(b) any subsidiary legislation made, determined or issued 12

under any other Act or under any Act of the 13

Commonwealth, another State or a Territory. 14

(3) If the estuary protection strategy or a management programme 15

adopts a code or subsidiary legislation, it is adopted as in force 16

from time to time unless the estuary protection strategy or 17

management programme specifies that a particular text is 18

adopted. 19

47. Documents not prepared by Trust, approval of as strategic 20

documents 21

(1) The Minister may, on the recommendation of the Trust, approve 22

as a strategic document a document prepared by a public 23

authority, person or body other than the Trust. 24

(2) The Minister must not approve a document under subsection (1) 25

unless the Minister is satisfied that — 26

(a) the document is consistent with the estuary protection 27

strategy or a management programme; and 28

(b) there has been sufficient community consultation, and 29

consultation with public authorities, persons and bodies 30

likely to be affected in a material way by the document, 31

in the preparation of the document; and 32



Preparation, approval and revision of estuary protection strategy and management programmes

Division 3

s. 48

page 35

(c) each relevant Minister has agreed to the terms of the 1

document. 2

(3) In subsection (2)(c) — 3

relevant Minister, in relation to a document referred to in this 4

section, means a Minister for the time being responsible for the 5

administration of a written law under which functions are vested 6

in a person in respect of a matter that is likely to be affected in a 7

material way by the document. 8

Division 3 — Preparation, approval and revision of estuary 9

protection strategy and management programmes 10

48. Trust to prepare draft documents 11

(1) As soon as is practicable after the commencement of this section 12

the Trust must prepare or cause to be prepared — 13

(a) a draft estuary protection strategy; and 14

(b) a draft management programme for the Estuary; and 15

(c) a draft management programme for the development 16

control area; and 17

(d) such other draft management programmes as the Trust 18

considers necessary to give effect to the estuary 19


(2) If the draft estuary protection strategy or a management 21

programme adopts a code or subsidiary legislation, any 22

reference in this Division to the draft estuary protection strategy 23

or management programme includes a reference to the code or 24

subsidiary legislation so adopted. 25



Division 3 Preparation, approval and revision of estuary protection strategy and management programmes

s. 49

page 36

49. Consultation with local governments etc. about proposed 1

documents 2

In the preparation of the estuary protection strategy or a 3

management programme the Trust must consult — 4

(a) a local government to the extent that the interests of the 5

local government appear to the Minister to be likely to 6

be affected in a material way by the document; and 7

(b) the Western Australian Local Government Association; 8

and 9

(c) any other public authority, person or body who or which 10

appears to the Minister to be likely to be affected in a 11

material way by the document. 12

50. Draft document to be published etc. 13


(a) deposit copies of the draft estuary protection strategy or 15

management programme for public inspection during 16

ordinary business hours free of charge at the office of 17

the Trust; and 18

(b) publish the draft estuary protection strategy or 19

management programme on the Trust website. 20

(2) As soon as practicable after the deposit of the copies of the draft 21

estuary protection strategy or management programme under 22

subsection (1)(a) the Trust must publish — 23

(a) in the Gazette; and 24

(b) in 2 issues of a daily newspaper circulating throughout 25

the State, 26

a notice — 27

(c) specifying the places at which copies of the draft 28

document may be inspected and obtained, and the Trust 29

website address; and 30

(d) stating the effect of section 51 and specifying the period 31

referred to in that section. 32




Division 3

s. 51

page 37

(3) The Trust may fix and charge a fee for supplying a copy of a 1

draft document. 2

51. Public submissions about draft document 3

Submissions on the draft estuary protection strategy or 4

management programme may be made, in the form, if any, 5

approved by the Trust, by any person — 6

(a) within a period determined by the Trust that is not less 7

than 60 days after the day on which the notice is 8

published in the Gazette under section 50(2)(a); and 9

(b) by delivering or posting them so that they are received 10

within that period at the offices of the Trust. 11

52. Draft document to be referred to certain bodies 12

(1) The draft estuary protection strategy or management 13

programme, modified if the Trust thinks fit after considering 14

submissions made under section 51, must be referred by the 15

Trust to each public authority, person and body consulted under 16

section 49 together with a summary of those submissions, and 17

may be referred by it to any other public authority, person or 18

body. 19

(2) If a public authority, person or body to which the draft estuary 20

protection strategy or management programme is referred under 21

subsection (1) considers that the Trust should vary the 22

document, it may within 28 days after receipt of the draft 23

document under subsection (1), in writing, request the Trust to 24

make the variation. 25

53. Consultation with relevant Minister about draft document 26


relevant Minister, in relation to a draft estuary protection 28

strategy or management programme, means a Minister for the 29

time being responsible for the administration of a written law 30

under which functions are vested in any person in respect of a 31




s. 53

page 38

matter that is likely to be affected in a material way by the draft 1

estuary protection strategy or management programme. 2

(2) Subject to this Part, the Trust must submit the draft estuary 3

protection strategy or management programme, modified as it 4

thinks fit to give effect to submissions made under section 51 5

and any request made under section 52(2), to the Minister. 6

(3) The Minister may direct that, before consultation is carried out 7

under subsection (4), the draft estuary protection strategy or 8

management programme must be modified as directed by the 9

Minister. 10

(4) The Minister must — 11

(a) consult each Minister who, in the opinion of the 12

Minister, is a relevant Minister; and 13

(b) if possible, agree with each relevant Minister on the 14

terms of the draft estuary protection strategy or 15

management programme submitted under subsection (2). 16

(5) For the purposes of subsection (4) the draft estuary protection 17

strategy or management programme must be modified as 18

directed by the Minister and agreed by the relevant Minister. 19

(6) If the Minister and a relevant Minister cannot agree on the terms 20

of the draft estuary protection strategy or management 21

programme — 22

(a) the Minister may refuse to approve the draft document 23

and give directions to the Trust as to the preparation of a 24

further draft document to be submitted under 25

subsection (2); or 26

(b) if the Minister determines that action is not to be taken 27

under paragraph (a), the Minister may refer the matter in 28

dispute to the Governor and the decision of the 29

Governor on that matter is final. 30

(7) The Trust must comply with any direction of the Minister under 31

subsection (3), (5) or (6)(a) and give effect to any decision of 32

the Governor under subsection (6)(b). 33




Division 3

s. 54

page 39

54. Approval of draft document by Minister 1

The Minister may approve the draft estuary protection strategy 2

or management programme if — 3

(a) each relevant Minister has agreed under section 53(4) to 4

the terms of the draft estuary protection strategy or 5

management programme or a decision approving the 6

document has been made by the Governor under 7

section 53(6)(b); and 8

(b) in the case of a draft management programme, the 9

Minister is satisfied that it is consistent with the estuary 10


55. Approval of strategic document to be published; when 12

strategic document operates 13

(1) Notice that a strategic document has been approved by the 14

Minister under section 47 or 54 must be published by the 15

Minister in the Gazette, together with a note showing — 16

(a) whether any modifications were made under section 53; 17

and 18

(b) where a copy of the document may be inspected or 19

obtained. 20

(2) The strategic document comes into operation on the day of 21

publication in the Gazette of a notice under subsection (1) or on 22

a later day that is specified in the strategic document. 23

(3) The Trust may fix and charge a fee for supplying a copy of the 24

strategic document. 25

56. Certain strategic documents, periodic review of 26

(1) The Trust must review each estuary protection strategy or 27

management programme approved by the Minister under 28

section 54 as soon as practicable after — 29

(a) the fifth anniversary of the day on which it came into 30

operation; and 31




s. 56

page 40

(b) the expiry of each 5 yearly interval after that 1

anniversary, 2

and, if it considers that the circumstances so require, prepare 3

amendments to that strategic document or a revised estuary 4

protection strategy or management programme. 5

(2) If, on a review under this section, the Trust considers that the 6

estuary protection strategy or management programme does not 7

require amendment or revision it may determine that the 8

existing strategic document is to continue in force without 9

amendment. 10

(3) The following provisions, as to consultation about, and approval 11

of, strategic documents apply for the purposes of this section, 12

with all necessary changes — 13

(a) section 49, as if the reference in that section to the 14

preparation of the estuary protection strategy or a 15

management programme were a reference to a review of 16

the estuary protection strategy or a management 17

programme; 18

(b) sections 50, 51, 52, 53 and 54, as if the references in 19

those sections to the draft estuary protection strategy or 20

management programme were references to the 21

proposed amendments to the estuary protection strategy 22

or management programme or a proposal that the 23

existing estuary protection strategy or management 24

programme be continued in force without amendment; 25

(c) section 55 as if references in that section to a strategic 26

document were references to the amendment of the 27

estuary protection strategy or management programme 28

or the continuation of the strategic document. 29



Compliance with strategic documents Division 4

s. 57

page 41

Division 4 — Compliance with strategic documents 1

57. Who has to comply with strategic documents; documents 2

etc. to be publicly available 3

(1) The Trust must perform its functions in accordance with the 4

strategic documents. 5

(2) Subject to sections 6 and 62, the Schedule 3 authorities must 6

perform their functions that affect the development control area 7

or the Estuary in accordance with the strategic documents. 8

(3) A copy of each strategic document, and any code or subsidiary 9

legislation adopted by the strategic document, must be — 10

(a) kept in the offices of the Trust and be available for 11

inspection by the public during office hours free of 12

charge; and 13

(b) published on the Trust website. 14

58. Trust to report etc. on targets, compliance etc. 15

(1) It is a function of the Trust — 16

(a) to monitor and report to the Minister at least biennially 17

on — 18

(i) the extent to which ecological and community 19

benefit and amenity targets are being met; and 20

(ii) the extent of compliance with prescribed 21

ecological and community benefit and amenity 22

targets and strategic documents; and 23

(iii) the operation and effectiveness of the strategic 24

documents; 25

and 26

(b) to make recommendations to the Minister as to changes 27

to the prescribed ecological and community benefits and 28

amenity targets and strategic documents. 29



Division 4 Compliance with strategic documents

s. 58

page 42

(2) The Trust may, by notice in writing, require a public authority 1

to provide, within such reasonable time as is specified in the 2

notice, such information as the Trust may reasonably require to 3

assist it in carrying out its functions under subsection (1). 4

(3) A public authority must comply with a request under 5

subsection (2). 6

(4) Any report under subsection (1) must be included in the annual 7

report submitted by the accountable authority of the Trust under 8

the Financial Management Act 2006 Part 5. 9


Development in development control area Part 5

s. 59

page 43

Part 5 — Development in development control area 1

59. Terms used 2

In this Part, unless the contrary intention appears — 3

applicant means a person who applies for approval under 4

section 64; 5

approval means approval for the purposes of section 62; 6

development means a development to which this Part applies by 7

operation of section 61; 8

development application means an application for approval — 9

(a) made to the Trust under section 64(2); or 10

(b) sent to the Trust by a local government or 11

redevelopment authority under section 64(4). 12

60. Land etc. owned by etc. public authority, use and 13

development of 14

Land and waters in the development control area that are owned 15

by or vested in a public authority may be used, but not 16

developed, without approval under section 62 if the land and 17

waters are used for any purpose for which they were lawfully 18

used before the coming into force of that Scheme. 19

61. Developments to which this Part applies 20

(1) This Part applies to a development if — 21

(a) it is proposed to be undertaken in the development 22

control area; and 23

(b) no part of the development is proposed to be undertaken 24

on land comprised in a lot that is, in whole or in part, or 25

waters that are, outside that area. 26

(2) It is immaterial for the purposes of this Part that a development 27

is undertaken in the performance of a function vested in a 28

person by a written law. 29


Part 5 Development in development control area

s. 62

page 44

(3) This Part does not apply to a development that was lawfully 1

being carried out in the development control area immediately 2

before the commencement of this section. 3

(4) A development referred to in subsection (3), or in respect of 4

which all necessary approvals under any written law were in 5

force immediately before the commencement of this section, 6

may be lawfully carried out as if this Part had not been enacted. 7

62. Development to be approved 8

(1) Subject to section 63, a person must not undertake or cause to 9

be undertaken any development to which this Part applies 10

without the approval of the Minister or, in the case of 11

development of a class that the Trust is authorised to approve 12

under section 77, the Trust. 13

Penalty: 14

(a) a fine of $50 000; 15

(b) for each separate and further offence committed by 16

the person under the Interpretation Act 1984 17

section 71, a fine of $5 000. 18

(2) A person must not undertake or cause to be undertaken any 19

development to which this Part applies in contravention of a 20

condition or restriction attached to an approval of the Minister 21

or the Trust. 22

Penalty: 23

(a) a fine of $50 000; 24




(3) The requirements of subsections (1) and (2) extend to the Trust. 28



s. 63

page 45

63. Certain reclamations to be authorised by Parliament 1

(1) Despite any other written law, no person is to fill in or reclaim 2

any part of the development control area that is normally 3

covered by water if the area to be filled in or reclaimed — 4

(a) exceeds one hectare; or 5

(b) is required as part of one scheme involving an area of 6

more than one hectare of the area so covered; or 7

(c) together with a contiguous area or areas that was or were 8

so covered and has or have been filled in or reclaimed at 9

any time within the preceding 5 years, would exceed one 10

hectare, 11

except under and in accordance with the authority of a 12

resolution of each House of Parliament approving the filling or 13

reclamation of that area. 14

Penalty: 15

(a) a fine of $50 000; 16




(2) Reference in subsection (1) to a part of the development control 20

area normally covered by water is a reference to an area so 21

covered when the water level measured at the Barrack Street 22

Jetty in Perth is 80 centimetres above low water mark measured 23

at Fremantle Inner Harbour as defined in the description of the 24

Port of Fremantle under the Port Authorities Act 1999. 25

(3) The requirements of subsection (1) extend to the Trust. 26

64. Approval, applying for 27

(1) If a development is proposed to be carried out on land that is 28

within the district of a local government, an application for 29

approval must be made in the prescribed form to that local 30

government unless the application is made under subsection (2). 31



s. 65

page 46

(2) If an application for approval is not required to be made in 1

accordance with subsection (1), an application for approval 2

must be made in the prescribed form to the Trust. 3

(3) An application must be — 4

(a) signed by the owner of the land on which it is proposed 5

to carry out the development; and 6

(b) accompanied by plans and specifications of the proposed 7

development. 8

(4) An application to which subsection (1) or (2) applies must be 9

sent to the Trust by the local government or redevelopment 10

authority, as the case requires, within 7 days of being made to 11

the local government or redevelopment authority. 12

(5) An applicant must furnish such information and documents 13

relating to the proposed development as the Trust may 14

reasonably require for proper consideration of the application. 15

65. Consultation with local governments etc. about development 16

application 17

(1) The Trust must by notice in writing refer a development 18

application and information and documents relating to the 19

proposed development to — 20

(a) each local government for which the development 21

appears to the Trust to be a relevant matter as defined in 22

section 19(2)(a); and 23

(b) each other public authority that appears to the Trust to 24

have functions that are relevant to the proposed 25

development. 26

(2) A local government or other public authority to which 27

particulars are referred under subsection (1) may make 28

submissions on the proposed development to the Trust. 29



s. 66

page 47

(3) A report must not be made by the Trust under section 67 1

until — 2

(a) the expiration of 42 days after all notices have been 3

given as required by subsection (1); or 4

(b) final submissions have been made to it by all authorities 5

to which particulars were referred under that subsection, 6

whichever is the sooner. 7

66. Development applications to be publicised 8

(1) The Trust must publish on the Trust website notice of each 9

development application it receives. 10

(2) The applicant must give notice of the proposed development, in 11

a form approved by the Trust, in — 12

(a) a newspaper circulating in the district where the 13

development is proposed to be undertaken; and 14

(b) a newspaper circulating throughout the State, 15

if — 16

(c) the chairman advises the applicant that the chairman 17

considers that the proposed development is a matter of 18

significant public interest; or 19

(d) the Trust advises the applicant that it considers that the 20

proposed development is a matter of significant public 21

interest; or 22

(e) the Minister so directs. 23

(3) A notice under subsection (1) or (2) — 24

(a) must specify the place at which particulars of the 25

proposed development may be inspected; and 26

(b) must state the effect of subsection (5) and specify the 27

period of at least 14 days after publication of the notice 28

within which a submission may be made; and 29

(c) may specify the form or manner, or both, in which a 30

submission may be made. 31



s. 67

page 48

(4) The Trust must send a copy of a notice referred to in 1

subsection (2) to each local government and redevelopment 2

authority for which the proposed development appears to the 3

Trust to be a relevant matter as that term is defined in 4

section 19, and that local government or redevelopment 5

authority must display a copy of the notice at its public office 6

until the expiry of the period for making submissions under 7

subsection (5). 8

(5) Where notice is given under subsection (1) or (2), any person 9

may make a submission — 10

(a) in the form and manner specified (if any) in the notice; 11

and 12

(b) within the period specified in the notice. 13

67. Draft report by Trust on proposed development 14

(1) After complying with sections 65 and 66, the Trust must prepare 15

a draft report on the proposed development and in that draft 16

report make recommendations on the development application. 17

(2) The Trust, in preparing its report under this section, must 18

consider all submissions received by it under sections 65 19

and 66. 20


(a) give a copy of the draft report, with an invitation to 22

make submissions to the Trust on the draft report, to — 23

(i) the applicant; and 24

(ii) each local government and other public authority 25

to which notice was given under section 65(1); 26

and 27

(iii) each person who made a submission under 28

section 66(5); 29

and 30

(b) publish the draft report on the Trust website and in any 31

other way the Trust considers appropriate, with an 32



s. 68

page 49

invitation to the public to make submissions to the Trust 1

on the draft report. 2

(4) An invitation to make submissions to the Trust on the draft 3

report — 4

(a) must specify a period of at least 14 days within which a 5

submission may be made; and 6

(b) may specify the form or manner, or both, in which a 7

submission may be made. 8

(5) Any person may make a submission to the Trust on the draft 9

report — 10

(a) in the form and manner specified (if any) in the 11

invitation; and 12

(b) within the period specified in the invitation. 13

68. Report by Trust to Minister about proposed development 14

(1) The Trust, after considering any submissions made under 15

section 67 and making such changes to the report as it considers 16

appropriate, must — 17

(a) give a copy of the report to — 18

(i) the Minister; and 19

(ii) the applicant; and 20

(iii) each local government and other public authority 21

to which the draft report was given under 22

section 67; and 23

(iv) each person who made a submission under 24

section 67; 25

and 26

(b) publish the report on the Trust website and in any other 27

way the Trust considers appropriate. 28



s. 69

page 50

(2) A report to the Minister under subsection (1)(a)(i) on an 1

application must be accompanied by — 2

(a) a copy of each submission made under section 65(1), 66 3

or 67 in relation to the application or draft report; and 4

(b) the Trust’s comments on those submissions. 5

69. Minister’s options after considering s. 68 report 6

(1) The Minister after considering the report on a proposed 7

development and any other matter that the Minister considers 8

relevant must — 9

(a) deal with the application in accordance with section 72; 10

or 11

(b) instead of so doing — 12

(i) return the application to the Trust and direct it to 13

reconsider its recommendations within such 14

period as the Minister may specify; or 15

(ii) appoint a review committee to consider those 16

recommendations and report to the Minister on 17

them within such period as the Minister may 18

specify, 19

and subsequently deal with the application in accordance 20

with section 72. 21

(2) If the Minister gives a direction to the Trust under 22

subsection (1)(b)(i) the Minister may also direct the Trust to 23

consult with the applicant and any other person the Minister 24

directs in an endeavour to resolve any question in issue. 25

(3) The Trust must comply with any direction given to it under this 26

section. 27

70. Review committee under s. 69(1)(b)(ii), membership of etc. 28

(1) A review committee appointed under section 69(1) (b)(ii) is to 29

consist of one person who has, or 2 or more persons at least one 30

of whom has, appropriate expertise in estuary management and 31

planning. 32



s. 71

page 51

(2) A member of a review committee is to be paid such 1

remuneration and travelling and other allowances as are 2

determined in the case of the member by the Minister on the 3

recommendation of the Public Sector Commissioner. 4

71. Review committee’s functions as to Trust’s 5

recommendations 6

(1) A review committee appointed under section 69(1)(b)(ii) 7

may — 8

(a) consult with the applicant and any other person it 9

considers appropriate; and 10

(b) inform itself in any manner that it considers appropriate. 11

(2) The Trust may make submissions to a review committee. 12

(3) A review committee must report to the Minister as required by 13

section 69(1)(b)(ii). 14

72. Minister’s decision 15

(1) Subject to this Part, the Minister may, for the purposes of 16

section 62 — 17

(a) approve the development; or 18

(b) approve the development in a modified form; or 19

(c) give approval in terms of paragraph (a) or (b) but subject 20

to any conditions or restrictions; or 21

(d) refuse to give approval. 22

(2) Nothing in this Part authorises the Minister to approve a 23

development in a manner that is inconsistent with — 24

(a) a strategic document; or 25

(b) an approved environmental protection policy under the 26

Environmental Protection Act 1986 Part III; or 27

(c) any condition or procedure required to be complied with 28

under Part IV of that Act; or 29

(d) the Statement of Planning Policy No. 21. 30



s. 73

page 52

(3) The Minister may limit the time for which an approval remains 1

in force. 2

(4) Without limiting subsection (1)(c), the Minister may, as a 3

condition of an approval of a development, require an applicant 4

to pay a reasonable sum for or towards the cost of any study of, 5

or protective or remedial work in respect of, land or waters in 6

the development control area that is occasioned by that 7

development. 8

(5) The Minister or, in the case of a decision by the Trust, the Trust 9

must cause notice in writing of the decision to be — 10

(a) given to — 11

(i) the applicant; and 12

(ii) each local government and other public authority 13

to which notice was given under section 65(1); 14

and 15

(iii) each person who made a submission under 16

section 67; 17

and 18


73. Financial assurance condition may be imposed on approval 20


approving authority means — 22

(a) in relation to an approval under section 77 — the Trust; 23

and 24

(b) in relation to any other approval under this Part — the 25

Minister. 26

(2) Without limiting section 72(1) (c), an approving authority may, 27

as a condition of an approval, require the applicant to provide to 28

the Trust before the commencement of the development a 29

financial assurance of the kind specified in the condition. 30



s. 74

page 53

(3) A financial assurance may be required to be given in one or 1

more of the following forms — 2

(a) a bank guarantee; 3

(b) a bond; 4

(c) an insurance policy; 5

(d) another form of security that the approving authority 6

specifies. 7

(4) The condition may provide for the procedures under which the 8

financial assurance may be called on or used under section 110. 9

(5) The amount of the financial assurance — 10

(a) must be specified in the condition; and 11

(b) must not exceed an amount that, in the opinion of the 12

approving authority, represents a reasonable estimate of 13

the total likely costs that might be incurred by the Trust 14

if it were necessary to take action under section 108(5) 15

or 109 in relation to that development. 16

(6) A condition requiring the provision of a financial assurance 17

lapses and no longer binds the person to whom it applies if the 18

Trust is satisfied that the reason for which the financial 19

assurance was required no longer exists and has given the 20

person on whom the condition was imposed written notice of 21

the lapsing of that condition. 22

74. Condition etc. on approval, request for reconsideration of 23

(1) If the Minister gives an approval subject to a condition or 24

restriction, the applicant may request the Minister to reconsider 25

that condition or restriction. 26

(2) A request under subsection (1) must be made — 27

(a) in writing; and 28

(b) within 28 days of the applicant receiving notice of the 29

Minister’s decision. 30



s. 75

page 54

(3) The Minister may deal with a request under this section by 1

confirming the decision to impose the condition or restriction, 2

by varying or revoking the condition or restriction or by 3

revoking it and substituting another condition or restriction 4

for it. 5

(4) Where the Minister amends a decision to impose a condition or 6

restriction following a request under this section, the Minister 7

must cause notice of the amendment to be — 8

(a) given to each local government and other public 9

authority to which notice was given under section 65(1); 10

and 11


75. Correction of approval 13

(1) The Minister may — 14

(a) correct in an approval — 15

(i) a clerical mistake; or 16

(ii) an error arising from an accidental slip or 17

omission; or 18

(iii) a figure which has been miscalculated; or 19

(iv) the misdescription of any person, thing or 20

property; 21

or 22

(b) make an administrative change to the format of an 23

approval which does not alter the obligations of the 24

person to whom the approval is given. 25

(2) Notice of any such correction must be — 26

(a) given to the person to whom the approval was given; 27

and 28




s. 76

page 55

76. Variation or extension of approval 1

(1) The Minister may, on the application of a person to whom an 2

approval was given — 3

(a) authorise a minor variation to the approval; or 4

(b) extend the time for which the approval remains in force 5

under section 72(3) by a further period of not more than 6

12 months. 7

(2) An extension of time under subsection (1) must not be given 8

more than once in respect of any approval. 9

(3) The Minister must give notice of the proposal to authorise a 10

variation or extend the time for which an approval of a 11

development remains in force to each local government and 12

other public authority consulted in respect of the development 13

under section 65 and invite them to comment on the proposal. 14

(4) An invitation to make comments on the proposal — 15

(a) must specify a period of at least 14 days within which 16

comments may be made; and 17

(b) may specify the form or manner, or both, in which 18

comments may be made. 19

(5) Any local government or other public authority invited to make 20

comments may do so — 21

(a) in the form and manner specified (if any) in the 22

invitation; and 23

(b) within the period specified in the invitation. 24

(6) The Minister must consider all submissions received under 25

subsection (5) before making a decision for the purposes of 26

subsection (1). 27

77. Approvals by Trust 28

(1) The regulations may prescribe classes of developments that the 29

Trust is authorised to approve under this section. 30



s. 78

page 56

(2) Where the Trust is authorised under subsection (1) to approve a 1

development, it may resolve to do so and in that case — 2

(a) sections 65 and 66 apply in relation to the development 3

application; and 4

(b) section 67 applies as if references in that section to the 5

Trust were references to the General Manager; and 6

(c) section 68 applies as if references in that section — 7

(i) to the Trust were references to the General 8

Manager; and 9

(ii) to the Minister were references to the Trust; 10

and 11

(d) sections 69 to 71 do not apply in relation to the 12

development application; and 13

(e) the Trust may, subject to section 72(2), exercise any 14

power described in section 72(1), (3) or (4). 15

(3) Before exercising a power described in section 72(1) the Trust 16

must consider the report received by it under section 68 as 17

applied by this section and any other matter that the Trust 18

considers relevant. 19

(4) An approval by the Trust under this section comes into effect, if 20

it is not revoked under section 79, on the day after the period in 21

which it may be revoked under section 79(1) has elapsed. 22

(5) For the purposes of this Part an approval by the Trust under this 23

section is to be taken to be the approval of the Minister. 24

(6) Sections 74, 75 and 76 apply to an approval given under this 25

section as if references to the Minister were references to the 26

Trust. 27

78. Trust must give s. 77 decisions etc. to Minister 28

(1) The Trust must give to the Minister a copy of each decision it 29

makes under section 77 in relation to an application. 30



s. 79

page 57

(2) The report must be accompanied by the report received by the 1

Trust under section 68 in relation to the application. 2

79. Minister may revoke Trust’s decision etc. 3

(1) The Minister may, within 14 days of receiving a copy of a 4

decision under section 78(1), revoke the decision. 5

(2) Written notice of the revocation must be — 6

(a) given to — 7

(i) the Trust; and 8

(ii) the applicant; and 9

(iii) each local government and other public authority 10

to which notice was given under section 67; and 11

(iv) each person who made a submission under 12

section 67; 13

and 14

(b) published on the Trust website and in any other way the 15

Trust considers appropriate. 16

(3) If the Minister revokes a decision under this section — 17

(a) the Trust must give to the Minister the report, 18

submissions and comments given to the Trust in respect 19

of the application under section 68 as applied by 20

section 77(2)(c); and 21

(b) the Minister must deal with the application under 22

section 69; and 23

(c) sections 70 to 76 apply accordingly as if the Trust had 24

not been authorised to approve the application. 25

80. False statements in applications 26

A person must not, in connection with an application under this 27

Part, make a statement or give any information which the person 28

knows is false in a material particular. 29




s. 81

page 58

81. Refusal etc. of development, compensation for injurious 1

affection for etc. 2


owner means a person registered as a proprietor of freehold 4

land. 5

(2) If an application for approval is made under this Part by the 6

owner of land, other than a public authority, and the Minister — 7

(a) refuses approval of a development; or 8

(b) approves a development in a modified form; or 9

(c) approves a development (including an approval referred 10

to in paragraph (b)) subject to any condition or 11

restriction that is unacceptable to the applicant, 12

the owner may obtain compensation for injurious affection from 13

the Trust. 14

(3) If a claim for compensation may be brought under 15

subsection (2), no claim lies under the Planning and 16

Development Act 2005 section 177(1)(b). 17

(4) A claim under subsection (2) must be made to the Trust in the 18

prescribed form not later than 6 months after the day on which 19

the Minister’s decision is notified to the applicant. 20

(5) Compensation is not payable under this section if payment 21

has been made for the same, or substantially the same, injurious 22

affection under the Planning and Development Act 2005 23

section 177(1)(a). 24

(6) The amount of compensation under subsection (2) must not 25

exceed the difference between — 26

(a) the value of the land as affected by the Minister’s 27

decision; and 28

(b) the value of the land as not so affected, 29

as at the time when the Minister’s decision is made. 30



s. 81

page 59

(7) Any question as to whether any land is injuriously affected and 1

as to the amount and manner of payment of the sum which is to 2

be paid as compensation under this section is to be determined 3

by arbitration under and in accordance with the Commercial 4

Arbitration Act 2012, unless the parties agree on some other 5

method of determination. 6

(8) Instead of paying compensation, the Trust may purchase the 7

land affected by the Minister’s decision. 8

(9) The Planning and Development Act 2005 sections 180, 187 and 9

188 apply for the purposes of this section, with all necessary 10

changes, as if references in that section to the Commission were 11

references to the Trust. 12

(10) This section applies to a decision of the Trust under section 77 13

as if references in this section to the Minister were references to 14

the Trust. 15


Part 6 Estuary protection notices

s. 82

page 60

Part 6 — Estuary protection notices 1

82. Issue of notice, General Manager may recommend 2

(1) If the General Manager believes on reasonable grounds that, to 3

protect or enhance the ecological and community benefits and 4

amenity of the Estuary — 5

(a) action by an owner, or both an owner and an occupier, 6

of land in the catchment area is required; or 7

(b) an owner, or both an owner and an occupier, of land in 8

the catchment area should refrain from action on that 9

land, 10

the General Manager may recommend to the Trust that a estuary 11

protection notice be issued in relation to that action. 12

(2) The recommendation must be accompanied by a report setting 13

out — 14

(a) the reasons for the recommendation; and 15

(b) the action proposed to be required or restrained under 16

the estuary protection notice; and 17

(c) the person or persons to whom it is proposed to give the 18

notice. 19

(3) Before making a recommendation to the Trust the General 20

Manager must give each person to whom it is proposed to give 21

the estuary protection notice — 22

(a) a draft of the report referred to in subsection (2); and 23

(b) a reasonable opportunity to show cause in writing why 24

the recommendation should not be made. 25

(4) An opportunity is not a reasonable opportunity for the purposes 26

of subsection (3) unless the person is informed in writing of the 27

right to show cause under that subsection not less than 42 days 28

before the day on which the General Manager makes the 29

recommendation. 30


Estuary protection notices Part 6

s. 83

page 61

83. Notice, issue of by Trust and content of 1

(1) The Trust may issue a estuary protection notice if, after 2

considering the report and recommendation made under 3

section 82 and giving each person to whom it is proposed to 4

give the estuary protection notice a reasonable opportunity to 5

show cause in writing why the estuary protection notice should 6

not be issued, it is satisfied that the notice should be issued. 7




before the day on which the Trust issues the estuary protection 11

notice. 12

(3) A estuary protection notice — 13

(a) must be in writing; 14

(b) must specify — 15

(i) the name and address of each person to whom it 16

is given; and 17

(ii) the purpose for which it is given; 18

(c) may impose any requirement reasonably required for the 19

purpose for which the notice is given including — 20

(i) a requirement that each or any one or more of the 21

persons on whom the notice is binding 22

discontinue, or not commence, a specified 23

activity indefinitely or for a specified period or 24

until further notice from the Trust; 25

(ii) a requirement that each or any one or more of the 26

persons on whom the notice is binding not carry 27

on a specified activity except at specified times 28

or subject to specified conditions; 29

(iii) a requirement that each or any one or more of the 30

persons on whom the notice is binding take 31

specified action in a specified way, and within a 32

specified period; 33



s. 84

page 62

(iv) a requirement that each or any one or more of the 1

persons on whom the notice is binding prepare, 2

in accordance with specified requirements and to 3

the satisfaction of the Trust, a plan of action to 4

protect and enhance the ecological and 5

community benefits and amenity of the Estuary, 6

or part of the Estuary; 7

(v) a requirement that each or any one or more of the 8

persons on whom the notice is binding comply 9

with such a plan of action to the satisfaction of 10

the Trust; 11

(vi) a requirement that each or any one or more of the 12

persons on whom the notice is binding undertake 13

specified tests or monitoring of the land; 14

(vii) a requirement that each or any one or more of the 15

persons on whom the notice is binding furnish to 16

the Trust specified results or reports; 17

(viii) a requirement that each or any one or more of the 18

persons on whom the notice is binding appoint or 19

engage a person with specified qualifications to 20

prepare a plan or report or to undertake tests or 21

monitoring required by the notice. 22

84. Service of notice 23

A estuary protection notice must be given to — 24

(a) each owner of the land in respect of which it is issued; 25

and 26

(b) each occupier of the land in respect of which it is issued 27

who — 28

(i) is not the owner of the land; and 29

(ii) is required to take, or refrain from taking, action 30

under the estuary protection notice. 31



s. 85

page 63

85. Who a notice binds 1

Subject to sections 91 and 92 and the outcome of any 2

application for review, a estuary protection notice is binding on 3

each person — 4

(a) to whom it is given; and 5

(b) on whom it is binding in accordance with section 89. 6

86. Memorial on land title of notice 7


register means to register under the Registration of Deeds 9

Act 1856 or Transfer of Land Act 1893, as the case requires; 10

Registrar means the Registrar of Titles under the Transfer of 11

Land Act 1893 or the Registrar of Deeds and Transfers under 12

the Registration of Deeds Act 1856, as the case requires; 13

responsible authority has the meaning given to that term in the 14

Environmental Protection Act 1986; 15

scheme has the meaning given to that term in the Environmental 16

Protection Act 1986. 17

(2) If a estuary protection notice is issued in relation to an activity 18

carried out on land, or requires a person to take action on or in 19

relation to land, the General Manager may lodge with the 20

Registrar a memorial of the estuary protection notice in respect 21

of the land. 22

(3) The Registrar, on payment of any relevant fee, must register the 23

memorial against the relevant land. 24

(4) If the estuary protection notice is revoked under section 91 the 25

General Manager must give notice to the Registrar that the 26

memorial is to be withdrawn and the Registrar, on payment of 27

any relevant fee, must register the withdrawal of the memorial 28

in the appropriate manner. 29



s. 87

page 64

(5) A memorial, and notice that a memorial is to be withdrawn, are 1

each to be in a form approved by the Registrar. 2

(6) If a memorial is registered under this section then — 3

(a) the Western Australian Planning Commission must not 4

approve under the Planning and Development Act 2005 5

section 135 the subdivision of that land, or the 6

amalgamation of that land with any other land; and 7

(b) a responsible authority must not grant approval under a 8

scheme for any proposed development of that land, 9

without seeking, and taking into account, the advice of 10

the Trust as to the suitability of the land for the 11

development. 12

(7) A memorial registered under this section has effect until it is 13

withdrawn. 14

87. Owner etc. of land subject to s. 86 memorial, duties of if 15

land changes ownership etc. 16

While a memorial of a estuary protection notice remains 17

registered under section 86, each owner or occupier of the land 18

bound by the estuary protection notice must, when that person 19

ceases to be an owner or occupier of the land, notify in 20

writing — 21

(a) the Trust of the fact that the person has ceased to be the 22

owner or occupier of the land, and of the name and 23

address of each person who succeeds that person in the 24

ownership or occupation or both, as the case requires, of 25

that land; and 26

(b) each person who succeeds that person in the ownership 27

or occupation or both, as the case requires, of that land 28

of the content of the estuary protection notice and of the 29

fact that the estuary protection notice is binding on that 30

person. 31




s. 88

page 65

88. Memorial under s. 86, General Manager’s duties to give 1

notice of etc. 2


responsible authority and scheme have the meanings given to 4

those terms in section 86(1). 5

(2) As soon as is practicable after the memorial is registered or 6

withdrawn under section 86 written notice that the memorial is 7

registered or withdrawn, with a copy of the memorial or notice 8

to withdraw the memorial attached, as is relevant, must be given 9

by the General Manager to — 10

(a) each owner of the relevant land; and 11

(b) the Western Australian Planning Commission; and 12

(c) each local government which has located within its 13

district all, or part, of the relevant land; and 14

(d) each responsible authority the scheme of which applies 15

to all, or part, of the relevant land. 16

89. Notice subject of s. 86 memorial binds new owners of land 17

(1) Subject to subsection (2) a estuary protection notice — 18

(a) in respect of which a memorial under section 86 is 19

registered; and 20

(b) which is binding on the owner of the land, 21

becomes binding on each person who becomes an owner of the 22

land at the time that the person becomes such an owner. 23

(2) A estuary protection notice in respect of which a memorial 24

under section 86 is registered does not become binding on a 25

person who becomes an owner of the land because the person is 26

a mortgagee in possession until 45 days after the day on which 27

the person became an owner of the land. 28

90. Financial assurance requirement, inclusion of in notice 29

(1) The Trust may in a estuary protection notice require each or any 30

one or more of the persons on whom the estuary protection 31



s. 91

page 66

notice is binding to provide a financial assurance of the kind 1

specified in the notice within a time specified in the notice. 2

(2) A financial assurance may be required to be given in one or 3

more of the following forms — 4

(a) a bank guarantee; 5

(b) a bond; 6

(c) an insurance policy; 7

(d) another form of security that the Trust specifies. 8

(3) The estuary protection notice may provide for the procedures 9

under which the financial assurance may be called on or used 10

under section 110. 11

(4) The amount of the financial assurance — 12

(a) must be specified in the estuary protection notice; and 13

(b) must not exceed an amount that, in the opinion of the 14

Trust, represents a reasonable estimate of the total likely 15

costs that might be incurred by the Trust in taking action 16

under section 94 in relation to that estuary protection 17

notice. 18

(5) A requirement to provide a financial assurance lapses and no 19

longer binds the person to whom it applies if the Trust is 20

satisfied that the reason for which the financial assurance was 21

required no longer exists and has given the person on whom the 22

condition was imposed written notice of the lapsing of that 23

condition. 24

91. Amending or cancelling notice 25

(1) The Trust may, by written notice, cancel a estuary protection 26

notice or, subject to subsections (2) and (3), amend it — 27

(a) by extending the period within which a requirement 28

contained in the estuary protection notice must be 29

complied with if the Trust is satisfied that the 30

circumstances of the case justify such an extension; or 31



s. 92

page 67

(b) by revoking or amending any requirement contained in 1

the estuary protection notice. 2

(2) The Trust, before exercising the power of amendment conferred 3

by subsection (1), must give the person on whom the estuary 4

protection notice is binding a reasonable opportunity to show 5

cause in writing why that power should not be exercised. 6




before the day on which the Trust exercises the power in 10

question. 11

92. Review by SAT of requirement in notice etc. 12

(1) A person on whom an estuary protection notice is binding who 13

is aggrieved by — 14

(a) a requirement contained in the notice; or 15

(b) an amendment contained in a notice given to that person 16

under section 91(1), 17

may apply to the State Administrative Tribunal for a review of 18

the requirement or amendment. 19

(2) The commencement of a proceeding for the review of a 20

requirement or amendment stays the operation of the 21

requirement or amendment until the application is determined. 22

93. Contravening notice, offence 23

A person required to take, or refrain from taking, action under a 24

estuary protection notice must ensure that the requirements of 25

the notice are complied with within such time as is specified in 26

the notice. 27

Penalty: 28

(a) a fine of $50 000; 29



s. 94

page 68




94. Contravention of notice, Trust’s powers in case of 4

(1) If a person — 5

(a) is convicted of an offence under section 93 in respect of 6

a estuary protection notice; or 7

(b) in the opinion of the Trust, has not complied with a 8

requirement of a estuary protection notice within such 9

time as is specified in the notice, then, subject to 10

subsection (2), 11

the Trust may take such action as is necessary under section 95 12

to ensure that the requirements of the notice are complied with. 13

(2) Before taking action under section 95 in the circumstances 14

referred to in subsection (1)(b), the Trust must give to the 15

person written notice — 16

(a) stating that in the opinion of the Trust the person has not 17

complied with the requirement, or requirements, of the 18

estuary protection notice which is, or are, specified in 19

the notice under this subsection; and 20

(b) giving details of the proposed action. 21

95. Entry to land etc. to ensure compliance with notice, powers 22

as to 23

(1) A person taking action on behalf of the Trust under this section, 24

may enter on any land in respect of which the Trust is 25

authorised to take action under section 94(1) and on that land 26

may take such action as the Trust considers necessary to ensure 27

that the requirements of the relevant estuary protection notice 28

are complied with. 29



s. 95

page 69

(2) Before exercising a power of entry under subsection (1) in 1

respect of any land which is occupied by a person or persons the 2

Trust must give not less than 14 days written notice to the 3

occupier specifying — 4

(a) that a requirement of a estuary protection notice, 5

described in or attached to the notice referred to in this 6

subsection, has not been complied with and the Trust 7

must take action to ensure that the requirements of the 8

notice are complied with; and 9

(b) the part of the land on which entry is to be made; and 10

(c) the actions proposed to be taken on that part of that land 11

to comply with the requirements of the notice. 12

(3) An inspector may assist the Trust to take any action under this 13

section if the Trust so requests. 14

(4) If action is taken under subsection (1), the Trust may recover the 15

reasonable costs incurred in taking the action, and interest at the 16

prescribed rate, from a person on whom the estuary protection 17

notice is binding, by action in a court of competent jurisdiction 18

as a debt due to the Trust. 19


Part 7 Investigation and enforcement

Division 1 Preliminary

s. 96

page 70

Part 7 — Investigation and enforcement 1

Division 1 — Preliminary 2

96. Terms used 3

In this Part, unless the contrary intention appears — 4

dwelling means — 5

(a) a building, structure or tent, or part of a building, 6

structure or tent, that is ordinarily used for human 7

habitation; or 8

(b) a mobile home, 9

and it does not matter that it is uninhabited from time to time; 10

entry warrant means a warrant issued under Division 3; 11

investigative purposes means the purposes set out in section 97; 12

mobile home means a vehicle — 13

(a) that is ordinarily used for human habitation; and 14

(b) that is permanently or semi-permanently stationary in a 15

single location; 16

place means any land, premises, vehicle, or a part of any land, 17

premises or vehicle; 18

vehicle means any thing capable of transporting people or things 19

by road, rail or water, including a hovercraft, and it does not 20

matter how the thing is moved or propelled. 21

Division 2 — Investigative powers 22

97. Purposes for which investigation may be carried out 23

An investigation may be carried out for any or all of the 24

following purposes — 25

(a) to ascertain whether the provisions of the Act, the 26

regulations or provisions listed in Schedule 6 have been 27

or are being complied with; or 28


Investigation and enforcement Part 7

Investigative powers Division 2

s. 98

page 71

(b) to ascertain whether any requirement contained in a 1

estuary protection notice has been or is being complied 2

with; or 3

(c) to ascertain whether there are reasonable grounds to 4

recommend under section 82 that a estuary protection 5

notice be issued, and to obtain evidence for the 6

preparation of a report under that section. 7

98. Personal details of suspect, powers to obtain 8


personal details, in relation to a person, means — 10

(a) the person’s full name; 11

(b) the person’s date of birth; 12

(c) the address of where the person is living; 13

(d) the address of where the person usually lives. 14

(2) If an inspector reasonably suspects that a person whose personal 15

details are unknown to the inspector has committed or is 16

committing or is about to commit an offence against a provision 17

of the Act, the regulations or a provision listed in Schedule 6 the 18

inspector may request the person to give the inspector any or all 19

of the person’s personal details. 20

(3) An inspector must not exercise a power under subsection (2) in 21

relation to a provision listed in Schedule 6 unless the inspector 22

reasonably suspects that the offence has been committed, is 23

being committed or is about to be committed in the Estuary. 24

(4) If an inspector reasonably suspects that a personal detail given 25

by a person in response to a request is false, the inspector may 26

request the person to produce evidence of the correctness of the 27

detail. 28

(5) A person who, without reasonable excuse, does not comply with 29

a request made under subsection (2) or (4) commits an offence. 30




Division 2 Investigative powers

s. 99

page 72

(6) For the purposes of subsection (5), the fact that an inspector did 1

not comply with section 32(2) as soon as practicable is a 2

reasonable excuse. 3

(7) A person who, in response to a request made under 4

subsection (2) or (4), gives any false personal details commits 5

an offence. 6


99. Entry etc. powers 8

(1) For investigative purposes an inspector may do all or any of the 9

following — 10

(a) at any time stop, detain, board or enter a vehicle (except 11

a vehicle that is a mobile home); 12

(b) at any time enter a place that is not a dwelling; 13

(c) at any time enter a dwelling with the consent of the 14

person apparently in charge of the dwelling; 15

(d) at any time enter a place in accordance with an entry 16

warrant; 17

(e) take onto or into the place any assistants, contractors, 18

vehicles, instruments, equipment or materials that are 19

needed to carry out the investigation; 20

(f) remain on or in the place, with the assistants, 21

contractors, vehicles, instruments, equipment or 22

materials, for as long as is necessary to complete the 23

investigation; 24

(g) take samples or specimens of water, soil, rocks and 25

plants; 26

(h) survey and mark out land for any purpose relevant to 27

carrying out the investigation; 28

(i) photograph or film a place, vehicle and anything in or on 29

the place or vehicle. 30



Investigative powers Division 2

s. 100

page 73

(2) An inspector must not exercise a power under this section in 1

relation to a provision listed in Schedule 6 unless the place or 2

vehicle is in the Estuary. 3

(3) An inspector may direct a person who is or appears to be in 4

charge of a place or vehicle to give the inspector any assistance 5

that the inspector reasonably needs to carry out the inspector’s 6

functions in relation to that place or vehicle. 7

(4) An inspector must not exercise a power under subsection (1)(b) 8

for a purpose set out in section 97(b) or (c) without the authority 9

of the General Manager in the particular case. 10

100. Records, powers to obtain 11


relevant record means a record that — 13

(a) is required to be kept under this Act; or 14

(b) contains information that is relevant to a contravention 15

of this Act. 16

(2) For investigative purposes an inspector may do all or any of the 17

following — 18

(a) direct a person who has the custody or control of a 19

record to give the inspector the record or a copy of it; 20

(b) direct a person who has the custody or control of a 21

record, computer or thing to make or print out a copy of 22

the record or to operate the computer or thing; 23

(c) operate a computer or other thing on which a record is or 24

may be stored; 25

(d) direct a person who is or appears to be in charge of a 26

record that the inspector suspects on reasonable grounds 27

is a relevant record to give the inspector a translation, 28

code, password or other information necessary to gain 29

access to or interpret and understand the record; 30

(e) take extracts from or make copies of, or download or 31

print out, or photograph or film, a record that the 32



Division 3 Entry warrants

s. 101

page 74

inspector suspects on reasonable grounds is a relevant 1

record; 2

(f) seize and remove, for no more than 7 days, a computer 3

or other thing on which a record is or may be stored; 4

(g) take away a record that the inspector suspects on 5

reasonable grounds is a relevant record and retain it for 6

as long as is necessary for the purposes of this Act; 7

(h) take reasonable measures to secure or protect a record, 8

or computer or other thing on which a record is or may 9

be stored, against damage or unauthorised removal or 10

interference. 11

(3) If an inspector seizes or is given a record, the inspector must if 12

practicable allow a person who otherwise has custody or control 13

of it to have reasonable access to it. 14

101. Exercise of power may be recorded 15

An inspector may record the exercise of a power under this 16

Division, including by making an audiovisual recording. 17

102. Force and assistance, use of 18

(1) An inspector may use assistance and force that is reasonably 19

necessary in the circumstances when carrying out a function 20

under this Act. 21

(2) However, if the use of reasonable force is likely to cause 22

significant damage to property, the inspector is not entitled to 23

use force without the authority of the General Manager in the 24

particular case. 25

Division 3 — Entry warrants 26

103. Entry warrant, who may apply for 27

(1) Subject to subsection (3), an inspector may apply to a justice for 28

an entry warrant authorising the entry of a place for 29

investigative purposes. 30



Entry warrants Division 3

s. 104

page 75

(2) An inspector may apply for an entry warrant for a place even if, 1

under Division 2, the inspector may enter the place without an 2

entry warrant. 3

(3) An inspector must not, without the authority of the General 4

Manager in the particular case, apply for an entry warrant 5

authorising the entry of a place for a purpose set out in 6

section 97(b) or (c). 7

(4) The application must be made in accordance with section 104 8

and must include the information prescribed (if any). 9

104. Applications for entry warrant, how to be made 10


application means an application for an entry warrant; 12

remote communication means any way of communicating at a 13

distance including by telephone, fax, email and radio. 14

(2) A reference in this section to making an application includes a 15

reference to giving information in support of the application. 16

(3) An application must be made in person before a justice 17

unless — 18

(a) the warrant is needed urgently; and 19

(b) the applicant reasonably suspects that a justice is not 20

available within a reasonable distance of the applicant, 21

in which case — 22

(c) it may be made to the justice by remote communication; 23

and 24

(d) the justice must not grant it unless satisfied about the 25

matters in paragraphs (a) and (b). 26

(4) An application must be made in writing unless — 27

(a) the application is made by remote communication; and 28

(b) it is not practicable to send the justice written material, 29



Division 3 Entry warrants

s. 104

page 76

in which case — 1

(c) it may be made orally; and 2

(d) the justice must make a written record of the application 3

and any information given in support of it. 4

(5) An application must be made on oath unless — 5

(a) the application is made by remote communication; and 6

(b) it is not practicable for the justice to administer an oath 7

to the applicant, 8

in which case — 9

(c) it may be made in an unsworn form; and 10

(d) if the justice issues an entry warrant, the applicant must 11

as soon as is practicable send the justice an affidavit 12

verifying the application and any information given in 13

support of it. 14

(6) If on an application made by remote communication a justice 15

issues an entry warrant, the justice must if practicable send a 16

copy of the original warrant to the applicant by remote 17

communication, but otherwise — 18

(a) the justice must send the applicant by remote 19

communication any information that must be set out in 20

the warrant; and 21

(b) the applicant must complete a form of warrant with the 22

information received and give the justice a copy of the 23

form as soon as is practicable after doing so; and 24

(c) the justice must attach the copy of the form to the 25

original warrant and any affidavit received from the 26

applicant and make them available for collection by the 27

applicant. 28

(7) The copy of the original warrant sent, or the form of the warrant 29

completed, as the case may be, under subsection (6) has the 30

same force and effect as the original warrant. 31



Enforcement provisions Division 4

s. 105

page 77

(8) If an applicant contravenes subsection (5)(d) or (6)(b), any 1

evidence obtained under the entry warrant is not admissible in 2

proceedings in a court. 3

105. Entry warrant, issue of 4

(1) A justice may issue an entry warrant if satisfied that it is 5

necessary for an inspector to enter a place for investigative 6

purposes. 7

(2) An entry warrant must set out — 8

(a) a reasonably particular description of the place to which 9

it relates; and 10

(b) a reasonably particular description of the investigative 11

purpose for which entry to the place is required; and 12

(c) the period in which it may be executed; and 13

(d) the date and time when it was issued; and 14

(e) any other matter prescribed. 15

106. Entry warrant, effect of 16

(1) An entry warrant has effect according to its content. 17

(2) An entry warrant may be executed by any inspector. 18

Division 4 — Enforcement provisions 19

107. Obstructing or impersonating inspector, offence 20

A person commits an offence if the person — 21

(a) without lawful excuse, wilfully obstructs, hinders or 22

resists an inspector who is carrying out a function under 23

this Act; 24

(b) without lawful excuse, wilfully obstructs, hinders or 25

resists a person assisting an inspector who is carrying 26

out a function under this Act; 27

(c) without lawful excuse, does not comply with a direction 28

under section 99(3) or 100; 29



Division 4 Enforcement provisions

s. 108

page 78

(d) wilfully makes a false statement to, or misleads, an 1

inspector who is carrying out a function under this Act; 2

(e) impersonates an inspector. 3


108. Illegal development etc., Trust’s powers as to 5

(1) The Trust may — 6

(a) by notice in writing served on a person who is — 7

(i) undertaking any development in contravention of 8

section 62; or 9

(ii) reclaiming or filling an area in contravention of 10

section 63, 11

direct that person to stop doing so; or 12

(b) by notice in writing served on a person who has — 13

(i) undertaken any development in contravention of 14

section 62; or 15

(ii) reclaimed or filled an area in contravention of 16

section 63, 17

direct the person within such period, being not less than 18

21 days after the service of the notice, as is specified in 19

the notice, to remove, pull down, take up, or alter any 20

development, reclamation or filling undertaken in 21

contravention of that section and restore the land as 22

nearly as practicable to its condition immediately before 23

the development started, to the satisfaction of the Trust, 24

or may by one notice give both of such directions to a person. 25

(2) A person on whom a notice is served containing a direction 26

under subsection (1)(b) may, within the period specified in the 27

notice, apply to the State Administrative Tribunal for a review 28

of the direction. 29

(3) A notice containing a direction under subsection (1)(b) is 30

suspended as to that direction pending the determination of the 31

application for review. 32




s. 109

page 79

(4) A person must comply with a notice given to the person under 1

this section. 2

Penalty: 3

(a) a fine of $50 000; 4




(5) If a person fails to comply with a notice given to the person 8

under subsection (1)(b), the Trust may itself remove, pull down, 9

take up or alter the development and may recover from the 10

person in any court of competent jurisdiction the costs incurred 11

by it in so doing. 12

109. Abandoned etc. property, powers as to 13

(1) Subject to this section, the Trust may take possession of any 14

property that is on land or waters in the Estuary if — 15

(a) the Trust has reasonable grounds to believe that the 16

property has been abandoned, is derelict or constitutes a 17

danger to persons, property or the environment; or 18

(b) a notice under subsection (2)(b) relating to that property 19

has not been complied with. 20

(2) Before it exercises the power in subsection (1)(a) in relation to 21

property that does not constitute a danger to persons, property or 22

the environment, the Trust must — 23

(a) make reasonable inquiry as to the identity and 24

whereabouts of the person who is or has been the owner 25

of the property; and 26

(b) if the identity and whereabouts of that person become 27

known to it give notice to that person requiring that 28

person to remove the property within the time specified 29

in the notice. 30




s. 110

page 80

(3) A person to whom a notice is given under subsection (2)(b) must 1

comply with the notice. 2


(4) Any cost incurred by the Trust under this section is a debt due to 4

the Trust by a person who is shown to have been the owner, or 5

in the case of abandoned property the former owner, at the time 6

of removal and is recoverable in a court of competent 7

jurisdiction. 8

(5) Subject to subsections (6), (7) and (8) any property removed 9

under this section becomes the property of the Trust and may be 10

disposed of as it thinks fit. 11

(6) If the Trust’s estimate of the value of the property exceeds the 12

costs referred to in subsection (4) together with the costs 13

associated with the sale of the same, the Trust must sell the 14

property, and after payment of all of its costs, hold the proceeds 15

in accordance with subsection (7). 16

(7) The proceeds of sale referred to in subsection (6) become part of 17

the funds of the Trust at the expiration of 12 months from the 18

date of the sale unless within that time a person proves to the 19

satisfaction of the Trust that that person is entitled to them or 20

any part of them, in which case the Trust must pay the proceeds 21

or part of the proceeds in accordance with that entitlement. 22

(8) Despite subsections (5), (6) and (7), the Trust must give 23

possession of the property to any person who, before the Trust 24

exercises a power under subsection (5) or (6), proves that that 25

person is entitled to the same and who pays to the Trust all costs 26

incurred by it under this section. 27

110. Trust’s costs under s. 94, 108(5) or 109, recovering in case of 28

financial assurance condition etc. 29


financial assurance means a financial assurance provided 31

pursuant to a condition imposed under section 73 or a 32

requirement under section 90. 33




s. 110

page 81

(2) This section applies if the Trust incurs costs in taking action 1

under section 94, 108(5) or 109 and the person from whom 2

those costs are or would be recoverable under this Act (the 3

responsible person) is a person who has provided a financial 4

assurance. 5

(3) The Trust may recover the reasonable costs of taking the action 6

by making a claim on or realising the financial assurance or part 7

of it. 8

(4) Before making the claim on or realising the financial assurance 9

or part of it, the Trust must make reasonable endeavours to give 10

the responsible person a written notice under this section. 11

(5) The written notice must — 12

(a) state details of the action taken; and 13

(b) state the amount of the financial assurance to be claimed 14

or realised; and 15

(c) invite the responsible person to make representations in 16

writing to the Trust to show why the financial assurance 17

should not be claimed or realised as proposed; and 18

(d) state the period (at least 30 days after the notice is given 19

to the responsible person) within which representations 20

may be made. 21

(6) After the end of the period stated in the notice, the Trust must 22

consider any representations in writing made by the responsible 23

person. 24

(7) If the Trust decides to make a claim on or realise the financial 25

assurance or part of it, the Trust must make reasonable 26

endeavours to give written notice to the responsible person of 27

the decision and the reasons for the decision. 28

(8) Any costs recovered under this section become part of the funds 29

of the Trust. 30




s. 110

page 82

(9) Subject to subsection (11), a financial assurance may be called 1

on and used, despite and without affecting — 2

(a) any liability of the responsible person to any penalty for 3

an offence for a contravention to which the financial 4

assurance relates; and 5

(b) any other action that might be taken or is required to be 6

taken in relation to any contravention or other 7

circumstances to which the financial assurance relates. 8

(10) If the amount of the financial assurance claimed or realised does 9

not cover all the costs concerned, the Trust may recover the 10

excess from the responsible person under section 94, 108(5) or 11

109, as the case requires. 12

(11) The Trust is not entitled — 13

(a) to recover costs under section 94, 108(5) or 109 if a 14

financial assurance has been called on and used in 15

respect of those costs (except to the extent that the 16

financial assurance does not cover all the costs); or 17

(b) to call on or use a financial assurance in respect of costs 18

which have been recovered under section 94, 108(5) or 19

109. 20


Legal proceedings Part 8

General matters Division 1

s. 111

page 83

Part 8 — Legal proceedings 1

Division 1 — General matters 2

111. Prosecutions, commencing etc. and averments in 3

(1) A prosecution for an offence against this Act may be 4

commenced and conducted by — 5

(a) a police officer; or 6

(b) a person authorised in writing by the Trust for the 7

purpose of the proposed proceedings. 8

(2) In any proceedings the authority of any person to prosecute for 9

an offence is to be presumed unless the contrary is proved. 10

(3) If in a charge of an offence against this Act there is an averment 11

that an act occurred within the catchment area, the development 12

control area or the Estuary, the court, on the act being proved, is 13

to presume in the absence of proof to the contrary that the act 14

occurred within that area. 15

112. Time limit for prosecuting 16

(1) A prosecution for an offence under this Act must be commenced 17

within 24 months after the date on which the offence is alleged 18

to have been committed. 19

(2) Despite subsection (1), if a prosecution notice alleging an 20

offence under this Act specifies the day on which the evidence 21

of the alleged offence first came to the attention of a person 22

authorised to institute the prosecution under section 111(1) — 23

(a) the prosecution may be made within 24 months after that 24

day; and 25

(b) the prosecution notice need not contain particulars of the 26

day on which the offence is alleged to have been 27

committed. 28

(3) The day on which evidence first came to the attention of a 29

person authorised to institute a prosecution under section 111(1) 30


Part 8 Legal proceedings

Division 1 General matters

s. 113

page 84

is, in the absence of evidence to the contrary, the day specified 1

in the prosecution notice. 2

113. Offence by body corporate, liability of directors etc. in case 3

of and proof of 4

(1) If a body corporate commits an offence under this Act or the 5

regulations, each person who is a director or who is concerned 6

in the management of the body corporate is taken to have also 7

committed the same offence unless the person proves that — 8

(a) the person did not know, and could not reasonably be 9

expected to have known, that the offence was being 10

committed; or 11

(b) the person — 12

(i) was not in a position to influence the conduct of 13

the body corporate in relation to the commission 14

of the offence; or 15

(ii) being in such a position, used all due diligence 16

and reasonable precautions to prevent the 17

commission of the offence; 18

or 19

(c) had it been prosecuted, the body corporate would not 20

have been found guilty of the offence by reason of being 21

able to establish a defence available to it under this Act. 22

(2) Under this section a person may be proceeded against and 23

convicted of an offence whether or not the body corporate has 24

been proceeded against or convicted in respect of the 25

commission of the offence. 26

(3) Nothing in this section prejudices or affects any liability 27

imposed on a body corporate for an offence committed by the 28

body corporate against this Act or the regulations. 29

(4) Without limiting any other law or practice regarding the 30

admissibility of evidence, evidence that an officer, employee or 31

agent of a body corporate (while acting in his or her capacity as 32



Infringement notices Division 2

s. 114

page 85

such) had, at any particular time, a particular state of mind, is 1

evidence that the body corporate had that state of mind. 2

Division 2 — Infringement notices 3

114. Terms used 4

In this Division — 5

alleged offender means a person suspected of having committed 6

a prescribed offence; 7

prescribed offence means an offence under this Act, or under 8

any regulations made under this Act, prescribed by the 9

regulations to be an offence for which an infringement notice 10

may be issued. 11

115. Infringement notices 12


authorised person means a person appointed under 14

subsection (10) to be an authorised person for the purposes of 15

the subsection in which the term is used. 16

(2) An inspector who has reason to believe that a person has 17

committed a prescribed offence may, within 35 days after the 18

offence is alleged to have been committed, give an infringement 19

notice to the alleged offender. 20

(3) An infringement notice must — 21

(a) be in the form prescribed; and 22

(b) contain a description of the alleged offence; and 23

(c) advise that if the alleged offender does not wish to be 24

prosecuted for the alleged offence, the amount of money 25

specified in the notice as being the modified penalty for 26

the offence may be paid to the Trust within a period of 27

28 days after the date of the notice; and 28

(d) inform the alleged offender as to how and where the 29

money may be paid. 30



Division 2 Infringement notices

s. 115

page 86

(4) In an infringement notice the amount specified as being the 1

modified penalty for the offence referred to in the notice is to be 2

the amount that was the modified penalty prescribed at the time 3

the alleged offence is believed to have been committed. 4

(5) An authorised person may, in a particular case, extend the 5

period of 28 days within which the modified penalty may be 6

paid and the extension may be allowed whether or not the 7

period of 28 days has elapsed. 8

(6) Where the modified penalty specified in an infringement notice 9

has been paid within 28 days or such further time as is allowed 10

and the notice has not been withdrawn, the bringing of 11

proceedings and the imposition of penalties are prevented to the 12

same extent as they would be if the alleged offender had been 13

convicted by a court of, and punished for, the alleged offence. 14

(7) An authorised person may, whether or not the modified penalty 15

has been paid, withdraw an infringement notice by sending to 16

the alleged offender a notice in the prescribed form stating that 17

the infringement notice has been withdrawn. 18

(8) If an infringement notice is withdrawn after the modified 19

penalty has been paid, the amount of the modified penalty must 20

be refunded. 21

(9) Payment of an amount as a modified penalty is not to be 22

regarded as an admission for the purposes of any proceedings, 23

whether civil or criminal. 24

(10) The Trust may, in writing, appoint persons or classes of persons 25

to be authorised persons for the purposes of subsection (5) or 26

(7), but an inspector who gives an infringement notice is not 27

eligible to be an authorised person for the purposes of either of 28

those subsections in relation to that notice. 29



Offences under other Acts Division 3

s. 116

page 87

Division 3 — Offences under other Acts 1

116. Offences under other Acts (Sch. 6), enforcing under this Act 2

(1) A regulation listed in Schedule 6 may be enforced under this 3

Act as if it were a regulation made under this Act. 4

(2) For the purposes of subsection (1), a regulation listed in 5

Schedule 6 is to be read and construed according to the Act 6

under which it is made, subject to any regulations made under 7

this Act setting out how it is to be read and construed. 8

(3) Without limiting subsection (2), the maximum penalty in 9

respect of a regulation listed in Schedule 6 and enforced under 10

this Act is to be determined by reference to the regulations of 11

which the regulation is a part. 12

(4) Nothing in this Division affects the operation under the Act 13

under which it is made of a regulation listed in Schedule 6. 14

117. Offences under other Acts (Sch. 6), prosecuting 15

A prosecution for an offence committed in the Estuary against a 16

regulation listed in Schedule 6 may be commenced and 17

conducted under section 111. 18

118. Alleged offences under other Acts (Sch. 6), infringement 19

notices for 20

(1) Without limiting section 116(1) a regulation listed in Schedule 6 21

may be prescribed for the purposes of Division 2 as if it were a 22

regulation made under this Act. 23

(2) If an offence against a regulation listed in Schedule 6 is 24

prescribed for the purposes of Division 2, an infringement 25

notice may be issued under section 115 in respect of the offence 26

if the offence is alleged to have been committed in the Estuary. 27

(3) An offence against a regulation listed in Schedule 6 must not be 28

prescribed for the purposes of section 115 unless an 29

infringement notice can be issued in respect of the offence under 30

the Act under which the regulation is made. 31



Division 3 Offences under other Acts

s. 118

page 88

(4) If a person is issued under another Act with an infringement 1

notice in respect of an offence against a regulation listed in 2

Schedule 6, any infringement notice issued to that person under 3

this Act in respect of the same offence is to be taken to have 4

been withdrawn under section 115(7). 5


Peel-Harvey Catchment Foundation Part 9

s. 119

page 89

Part 9 — Peel-Harvey Catchment Foundation 1

119. Foundation established 2

(1) The Minister may, by order, establish a body called the 3

Peel-Harvey Catchment Foundation. 4

(2) The Foundation is a body corporate with perpetual succession. 5

(3) Proceedings may be taken by or against the Foundation in its 6

corporate name. 7

120. Council to govern Foundation 8

The Foundation is to have a council which, subject to this Act, 9

is to be the governing body of the Foundation. 10

121. Functions of Foundation 11

The functions of the Foundation are — 12

(a) to attract and retain continuing public interest and 13

financial support for the Trust in the performance of its 14

functions; and 15

(b) to encourage donations to facilitate the performance by 16

the Trust of its functions. 17

122. Powers of Foundation 18

The Foundation has power to do all things necessary or 19

convenient to be done for or in connection with the performance 20

of its functions. 21

123. Peel-Harvey Catchment Foundation Account 22

(1) An account called the Peel-Harvey Catchment Foundation 23

Account is to be established — 24

(a) as an agency special purpose account under the 25

Financial Management Act 2006 section 16; or 26


Part 9 Peel-Harvey Catchment Foundation

s. 124

page 90

(b) with the approval of the Treasurer, at a bank as defined 1

in section 3 of that Act, 2

to which the funds received by the Foundation must be credited. 3

(2) The Foundation Account is to be charged with all expenditure 4

lawfully incurred by the Foundation in the performance of its 5

functions. 6

(3) Moneys standing to the credit of the Foundation Account — 7

(a) are subject to the direction and control of the Trust; and 8

(b) may be transferred to the Trust for the purposes of 9

carrying this Act into effect or otherwise applied for the 10

purposes of the Trust or the Foundation. 11

(4) The operation of the Foundation Account is to be regarded as — 12

(a) a service under the control of the Trust for the purposes 13

of the Financial Management Act 2006 section 52; and 14

(b) part of the operations of the Trust for the purposes of 15

Part 5 of that Act. 16

124. Rules for this Part 17

(1) The Minister may, on the recommendation of the Trust, make 18

rules that are necessary or convenient for giving effect to this 19

Part. 20

(2) Without limiting subsection (1), the rules may — 21

(a) provide for the appointment, constitution, functions and 22

proceedings of the council, including power to employ 23

persons, appoint agents, obtain professional or other 24

services and do all things necessary or convenient to be 25

done for or in connection with the performance by the 26

Foundation of its functions; and 27

(b) provide for membership of the Foundation, including 28

membership of different categories having different 29

privileges; and 30


Peel-Harvey Catchment Foundation Part 9

s. 124

page 91

(c) provide for meetings and other proceedings of members 1

of the Foundation; and 2

(d) provide for the appointment of one or more patrons of 3

the Foundation; and 4

(e) provide for Friends of the Foundation and for the 5

establishment of a register of such persons; and 6

(f) provide for the manner of execution of documents 7

authorised to be executed by resolution of the council; 8

and 9

(g) empower the council, with the approval of the Trust, to 10

make by-laws with respect to the operations and 11

proceedings of the Foundation, the council, committees 12

of the council and persons employed by the Foundation. 13


Part 10 General

s. 125

page 92

Part 10 — General 1

125. Delegation by Minister 2

(1) Subject to subsection (4), the Minister may delegate to a person 3

any function of the Minister under another provision of this Act. 4

(2) The delegation must be in writing signed by the Minister. 5

(3) The delegation takes effect when notice of the delegation is 6

published in the Gazette. 7

(4) The Minister must not delegate a function vested in the Minister 8

under section 15, 47, 53 or 54, Part 5, section 119 or 124 or 9

Schedule 4. 10

(5) A person exercising or performing a function that has been 11

delegated to the person under this section is to be taken to do so 12

in accordance with the terms of the delegation unless the 13

contrary is shown. 14

(6) Nothing in this section limits the ability of the Minister to 15

perform a function through an officer or agent. 16

126. Duties and liabilities of members etc. performing functions 17

under this Act 18


member means — 20

(a) a member of the Trust or of a committee and a person 21

who attends a meeting under section 19; 22

(b) any person to whom a function is delegated or 23

subdelegated under section 25. 24

(2) A member must at all times act honestly in the performance of a 25

function under this Act. 26



General Part 10

s. 126

page 93

(3) A member must not disclose any information acquired by virtue 1

of the performance of any function unless the disclosure is 2

made — 3

(a) in connection with the carrying out of this Act or under a 4

legal duty; or 5

(b) as required or allowed by this Act or under another 6

written law; or 7

(c) in the case of a person who attends a meeting under 8

section 19 — 9

(i) in connection with the performance of his or her 10

functions for the local government or 11

redevelopment authority; and 12

(ii) to a closed meeting, or a closed committee 13

meeting, of the council of the local government 14

or redevelopment authority; 15

or 16

(d) with the written consent of the person to whom the 17

information relates; or 18

(e) in prescribed circumstances. 19


(4) A member must not make improper use of information acquired 21

by virtue of the performance of any function under this Act to 22

gain, directly or indirectly, an improper advantage for himself or 23

herself or to cause detriment to the Trust. 24


(5) A member who commits a breach of any provision of this 26

section is liable for any profit made by the member or for any 27

damage suffered by the Trust as a result of the breach of that 28

provision. 29

(6) This section is in addition to and not in derogation of any other 30

law relating to the duty or liability of the holder of a public 31

office. 32


Part 10 General

s. 127

page 94

127. Protection from personal liability 1


member means — 3

(a) a member of the Trust; and 4

(b) a person who attends or participates in a meeting under 5

section 19; and 6

(c) a member of a committee. 7

(2) An action in tort does not lie against a member, an officer of the 8

Trust or an inspector, for anything that the person has done, in 9

good faith, in the performance or purported performance of a 10

function under this Act or any other written law. 11

(3) The protection given by subsection (2) applies even though the 12

thing done as described in that subsection may have been 13

capable of being done whether or not this Act or any other 14

written law had been enacted. 15

(4) Despite subsection (2), neither the Trust nor the State is relieved 16

of any liability that it might have for another person having 17

done anything as described in that subsection. 18

(5) In this section, a reference to the doing of anything includes a 19

reference to the omission to do anything. 20

128. Regulations 21

(1) The Governor may make regulations prescribing all matters that 22

are required or permitted by this Act to be prescribed, or are 23

necessary or convenient to be prescribed, for giving effect to the 24

purposes of this Act. 25

(2) Without limiting subsection (1) regulations may — 26

(a) amend or insert detail into Schedules 1, 2, 3, 5 or 6; 27


General Part 10

s. 128

page 95

(b) regulate, control or prohibit the doing of any thing in or 1

in relation to the development control area or the 2

Estuary, not being a development as defined in Part 5, 3

for the purpose of — 4

(i) protecting or enhancing the ecological and 5

community benefits and amenity or good 6

management of the land and waters in those 7

areas or any part of those areas; or 8

(ii) without limiting subparagraph (i), protecting or 9

enhancing the ecological and community benefits 10

and amenity of any area that has been identified 11

under a management programme as being an area 12

that requires priority protection or priority 13

remediation; 14

(c) for the purposes of paragraph (b), regulate or control an 15

activity by prohibiting it from being carried out by a 16

person except under a licence or permit issued by the 17

Trust to the person; 18

(d) regulate, control or prohibit the exhibition of 19

advertisements or signs in the Estuary and confer power 20

on the Trust to remove or require the removal of 21

advertisements or signs that are exhibited or maintained 22

in contravention of the regulations; 23

(e) provide for the imposition of fees and charges; 24

(f) provide that contravention of a regulation constitutes an 25

offence and for penalties not exceeding a fine of $5 000 26

and for each separate and further offence committed by 27

the person under the Interpretation Act 1984 section 71, 28

a fine of $100. 29

(3) A regulation amending Schedule 6 by inserting a regulation 30

must not be made except with the concurrence of the Minister to 31

whom the administration of the Act under which the regulation 32

is made is committed by the Governor. 33


Part 10 General

s. 129

page 96

129. Review of Act 1

(1) The Minister must carry out a review of the operation and 2

effectiveness of this Act as soon as is practicable after the 3

expiration of 5 years from its commencement, and in the course 4

of that review the Minister must consider and have regard to — 5

(a) the effectiveness of the operations of the Trust; and 6

(b) the need for the continuation of the functions of the 7

Trust; and 8

(c) such other matters as appear to the Minister to be 9

relevant to the operation and effectiveness of this Act. 10

(2) The Minister must prepare a report based on the review made 11

under subsection (1) and must, as soon as is practicable after the 12

preparation of the report, cause the report to be laid before each 13

House of Parliament. 14


Catchment area Schedule 1

page 97

Schedule 1 — Catchment area 1

[s. 8] 2

All of the land and waters contained within Schedule 1 of the Environmental 3

Protection Policy Approval Order. 4

5


Schedule 2 Development control

page 98

Schedule 2 — Development control area 1

2


Authorities Schedule 3

page 99

Schedule 3 — Authorities 1

[s. 3, 6(1), 128(2)(a)] 2

1. The chief executive officers of the departments principally assisting in 3

the administration of the following Acts, and any other person 4

carrying out functions under the following Acts, to the extent that 5

their functions relate to matters affected by this Act — 6

(a) the Bush Fires Act 1954; 7

(b) the Conservation and Land Management Act 1984; 8

(c) the Environmental Protection Act 1986; 9

(d) the Fire and Emergency Services Act 1998; 10

(e) the Fish Resources Management Act 1994; 11

(f) the Forest Products Act 2000; 12

(g) the Health Act 1911; 13

(h) the Hope Valley-Wattleup Redevelopment Act 2000; 14

(i) the Jetties Act 1926; 15

(j) the Land Administration Act 1997; 16

(k) the Local Government Act 1995; 17

(l) the Main Roads Act 1930; 18

(m) the Marine and Harbours Act 1981; 19

(n) the Mining Act 1978; 20

(o) the Planning and Development Act 2005; 21

(p) the Port Authorities Act 1999; 22

(q) the Public Transport Authority Act 2003; 23

(r) the Rights in Water and Irrigation Act 1914; 24

(s) the Shipping and Pilotage Act 1967; 25

(t) the Soil and Land Conservation Act 1945; 26

(u) the Stock (Identification and Movement) Act 1970; 27

(v) the Strata Titles Act 1985; 28

(w) the Transport Co-ordination Act 1966; 29

(x) the Water Agencies (Powers) Act 1984; 30

(y) the Water Corporations Act 1995; 31

(z) the Water Services Act 2012; 32


Schedule 3 Authorities

page 100

(aa) the Waterways Conservation Act 1976; 1

(bb) the Western Australian Land Authority Act 1992; 2

(cc) the Western Australian Planning Commission Act 1985. 3

2. The Conservation Commission established under the Conservation 4

and Land Management Act 1984. 5

3. The Marine Parks and Reserves Authority established under the 6

Conservation and Land Management Act 1984. 7

4. The Forest Products Commission established under the Forest 8

Products Act 2000. 9

5. A local government or commissioner appointed under the Local 10

Government Act 1995 to administer that local government. 11

6. The Commissioner of Main Roads appointed under the Main Roads 12

Act 1930. 13

7. The Public Transport Authority of Western Australia established 14

under the Public Transport Authority Act 2003. 15

8. The Commissioner for Soil Conservation appointed under the Soil 16

and Land Conservation Act 1945. 17

9. The Western Australian Land Authority established under the 18

Western Australian Land Authority Act 1992. 19

10. The Western Australian Planning Commission established under the 20

Planning and Development Act 2005. 21

11. A licensee as defined in the Water Services Act 2012 section 3(1). 22

12. The holder of a licence under the Electricity Industry Act 2004. 23

13. The holder of a distribution licence under the Energy Coordination 24

Act 1994. 25

14. Any decision-making authority as defined in the Environmental 26

Protection Act 1986 section 3. 27


Constitution and proceedings of the board Schedule 4

General provisions Division 1

cl. 1

page 101

Schedule 4 — Constitution and proceedings of the board 1

[s. 17] 2

Division 1 — General provisions 3

1. Term used: appointed member 4


appointed member means a person appointed under section 16(1)(a), 6

(c) or (d). 7

2. Term of office 8

(1) An appointed member holds office for such period, not exceeding 9

3 years, as is specified in the instrument of his or her appointment, 10

and is eligible for reappointment. 11

(2) Despite subclause (1), if the period of office of an appointed member 12

expires by effluxion of time without a person having been appointed 13

to fill the vacancy, the appointed member continues in office until a 14

person is appointed to fill the vacancy. 15

3. Members to be part-time, except chairman 16

(1) The chairman may be appointed on terms that require the duties of 17

that office to be performed on a full-time basis. 18

(2) Except as provided in subclause (1), appointment as a member must 19

be on a part-time basis. 20

4. Resignation and removal 21

(1) The office of an appointed member becomes vacant if — 22

(a) the member resigns the office by written notice addressed to 23

the Minister; 24

(b) the member is an insolvent under administration as defined in 25

the Corporations Act 2001 (Commonwealth); 26

(c) the member is absent, without leave of the Minister, from 27

3 consecutive meetings of which the member has had notice; 28

(d) the member is removed from office by the Minister under 29

subclause (2). 30


Schedule 4 Constitution and proceedings of the board

Division 1 General provisions

cl. 5

page 102

(2) The Minister may remove an appointed member from office if the 1

Minister is satisfied that the member — 2

(a) is incompetent, has misbehaved or has neglected his or her 3

duties as a member; or 4

(b) is suffering from mental or physical incapacity impairing the 5

performance of his or her functions. 6

5. Leave of absence 7

The Minister may grant leave of absence to a member on such terms 8

and conditions as the Minister thinks fit. 9

6. Deputy chairman 10

The Minister must designate one of the members appointed under 11

section 16(1)(a) as the deputy chairman of the board and that person 12

has, during any period when the chairman is absent or otherwise 13

unable to perform the functions of chairman, all of the functions and 14

entitlements of the chairman. 15

7. Temporary members 16

(1) Where a member, other than the chairman, is unable to act by reason 17

of sickness, absence or other cause, the Minister may appoint a person 18

who, as far as is practicable, has similar knowledge and experience as 19

that member to act in place of that member, and while so acting the 20

appointee has all the functions and entitlements of a member. 21

(2) An appointment under subclause (1) may be revoked by the Minister 22

at any time. 23

(3) If the deputy chairman is performing the functions of the chairman at 24

a meeting, subclause (1) applies as though the deputy chairman were 25

absent from the meeting. 26

(4) No act or omission of a person acting in place of another under this 27

clause is to be questioned on the ground that the occasion for so 28

acting had not arisen or had ceased. 29

8. Meetings, times and places of, quorum at etc. 30

(1) Subject to subclause (2), meetings must be held at the times and 31

places determined by the board. 32



General provisions Division 1

cl. 9

page 103

(2) The chairman or any 4 members may, on reasonable notice to all 1

members, call a meeting at any time. 2

(3) At a meeting of the board, 5 members constitute a quorum. 3

(4) The chairman must preside at all meetings of the board at which he or 4

she is present, or in which he or she is participating under clause 10. 5

(5) If both the chairman and the deputy chairman are not present or 6

participating, the members present or participating must appoint a 7

member to preside. 8

(6) Questions arising at a meeting of the board must be decided, in open 9

voting, by a majority of the votes of members present. 10

(7) If the votes of members present or participating at a meeting and 11

voting on a question are equally divided, the person presiding has a 12

casting vote in addition to a deliberative vote. 13

(8) In this clause — 14

member includes a person who attends a meeting under section 19. 15

9. Resolution may be passed without meeting 16

(1) If — 17

(a) a document containing a statement to the effect that a 18

resolution has been passed is sent or given to all members; 19

(b) the document is assented to by not less than 5 members, 20

that resolution is to be taken as having been passed by a meeting of 21

the board. 22

(2) Subclause (1) does not apply to a resolution that relates to a relevant 23

matter for a local government as defined in section 19(2) unless the 24

local government has consented in writing to the passing of the 25

resolution. 26

(3) For the purposes of subclause (1) — 27

(a) the meeting is to be taken as having been held — 28

(i) if the members assented to the document on the same 29

day — on the day on which the document was 30

assented to and at the time at which the document 31

was last assented to by a member; or 32



Division 1 General provisions

cl. 10

page 104

(ii) if the members assented to the document on different 1

days — on the day on which, and at the time at 2

which, the document was last assented to by a 3

member; 4

and 5

(b) 2 or more separate documents in identical terms each of 6

which is assented to by one or more members are to be taken 7

to constitute one document; and 8

(c) a member may signify assent to a document — 9

(i) by signing the document; or 10

(ii) by notifying the Trust of the member’s assent in 11

person or by post, facsimile transmission, telephone, 12

email or other method of written, electronic, audio or 13

audiovisual communication. 14

(4) Where a member signifies assent to a document otherwise than by 15

signing the document, the member must by way of confirmation sign 16

the document at the next meeting of the board attended by the 17

member, but failure to do so does not invalidate the resolution to 18

which the document relates. 19

(5) Where a document is assented to in accordance with subclause (1), the 20

document is to be taken as a minute of a meeting of the board. 21

(6) The chairman must report the passing of a resolution under 22

subclause (1) to the next meeting of the board. 23

10. Meetings by telephone etc. 24

(1) In this clause — 25

member includes a person who participates in a meeting under 26

section 19. 27

(2) A communication between a majority of members by telephone, 28

audiovisual or other electronic means is a valid meeting of the board 29

if — 30

(a) each participating member is capable of communicating with 31

every other participating member instantaneously at all times 32

during the proceedings; and 33

(b) all members were advised that the communication would be 34

taking place and were given the opportunity to participate. 35



Disclosure of interests Division 2

cl. 11

page 105

11. Minutes of meetings 1

The board must cause accurate records to be kept of the proceedings 2

at its meetings. 3

12. Procedures 4

Subject to this Act, the board is to determine its own procedures. 5

Division 2 — Disclosure of interests 6

13. Term used: member 7


member includes a person who attends a meeting under section 19. 9

14. Material personal interests to be disclosed 10

(1) A member who has a material personal interest in a matter being 11

considered or about to be considered by the board must, as soon as 12

possible after the relevant facts have come to the member’s 13

knowledge, disclose the nature of the interest at a meeting of the 14

board. 15


(2) A disclosure under subclause (1) must be recorded in the minutes of 17

the meeting. 18

15. Member with material personal interest not to vote etc. 19

A member who has a material personal interest in a matter that is 20

being considered by the Board — 21

(a) must not vote whether at a meeting or otherwise — 22

(i) on the matter; or 23

(ii) on a proposed resolution under clause 16 in respect of 24

the matter, whether relating to that member or a 25

different member; 26

and 27

(b) must not be present while — 28

(i) the matter; or 29



Division 2 Disclosure of interests

cl. 16

page 106

(ii) a proposed resolution of the kind referred to in 1

paragraph (a)(ii), 2

is being considered at a meeting. 3

16. Clause 15 may be declared inapplicable 4

Clause 15 does not apply if the board has at any time passed a 5

resolution that — 6

(a) specifies the member, the interest and the matter; and 7

(b) states that the members voting for the resolution are satisfied 8

that the interest should not disqualify the member from 9

considering or voting on the matter. 10

17. Quorum if cl. 15 applies 11

(1) Despite clause 8(3), if a member of the board is disqualified under 12

clause 15 in relation to a matter, a quorum is present during the 13

consideration of the matter if at least 4 members are present who are 14

entitled to vote on any motion that may be moved at the meeting in 15

relation to the matter. 16

(2) The Minister may deal with a matter to the extent that the board 17

cannot deal with it because of subclause (1). 18

18. Minister may declare cl. 15 and 17 inapplicable 19

(1) The Minister may, in writing, declare that clause 15 or 17 or both of 20

them do not apply in relation to a specified matter either generally or 21

in voting on particular resolutions. 22

(2) The Minister must cause a copy of a declaration made under 23

subclause (1) to be laid before each House of Parliament or dealt with 24

under clause 19 within 14 days after the declaration is made. 25

19. Supplementary provision about laying documents before 26

Parliament 27

(1) If — 28

(a) at the commencement of a period referred to in clause 18(2) 29

in respect of a document a House of Parliament is not sitting; 30

and 31



Disclosure of interests Division 2

cl. 19

page 107

(b) the Minister is of the opinion that that House will not sit 1

during that period, 2

the Minister must transmit a copy of the document to the Clerk of that 3

House. 4

(2) A copy of a document transmitted to the Clerk of a House is to be — 5

(a) taken to have been laid before that House; and 6

(b) taken to be a document published by order or under the 7

authority of that House. 8

(3) The laying of a copy of a document that is taken to have occurred 9

under subclause (2) is to be recorded in the Minutes, or Votes and 10

Proceedings, of the House on the first sitting day of the House after 11

the Clerk received the copy. 12


Schedule 5 Local governments

page 108

Schedule 5 — Local governments 1

[s. 19, 23] 2

Shire of Boddington 3

City of Mandurah 4

Shire of Murray 5

Shire of Serpentine-Jarrahdale 6

Shire of Waroona 7


Prescribed regulations Schedule 6

page 109

Schedule 6 — Prescribed regulations 1

[s. 117] 2


Defined Terms

page 110

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


Defined Terms

page 111

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)