Local Government (Building and Miscellaneous Provisions) Act 1993

Local Government (Building and Miscellaneous Provisions) Act 1993

An Act to provide for matters relating to building and for miscellaneous matters relating to local government

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Local Government (Building and Miscellaneous Provisions) Act 1993 .

2.   Commencement

This Act commences on a day or days to be proclaimed.

3.   Interpretation generally

(1)  In this Act –

building area means a building area referred to in section 43 ;

building surveyor means a person appointed as such under Part 2 ;

council means a council within the meaning of the Local Government Act 1993 ;

councillor means a councillor within the meaning of the Local Government Act 1993 ;

Director means the Director of Local Government appointed under the Local Government Act 1993 ;

elector means a person entitled to vote under the Local Government Act 1993 ;

erect includes construct and commence, carry on or complete;

expenses in relation to a council includes –

(a) the salaries and wages of its employees; and

(b) the compensation, purchase money or rent payable for land; and

(c) the cost of materials used, and the consideration payable under any contract, in connection with any work, undertaking or duty which the council is empowered or required to undertake under this Act; and

(d) the reasonable costs and outgoings incurred by the council in enforcing this Act or in suing for, or recovering, any charges or expenses;

general manager means a person appointed as such under the Local Government Act 1993 ;

highway does not include a highway over water other than bridges and fords;

inhabit in relation to a building means to live, work, sleep, eat or cook in the building;

municipal area means a municipal area within the meaning of the Local Government Act 1993 ;

Panel means the Land Use Planning Review Panel established under the Land Use Planning and Approvals Act 1993 ;

private in relation to a way, means not subject to use by the public as of right;

public in relation to a way, means subject to use by the public as of right;

Recorder of Titles means the person appointed as such under the Land Titles Act 1980 ;

Register has the same meaning as it has in the Land Titles Act 1980 ;

road means –

(a) any land subject to a right of way for wheeled vehicles; and

(b) any land which obviously appears to be regularly used for the passage of wheeled vehicles; and

(c) any land made ready to be regularly so used, together with any adjoining path;

State highway means a State highway or subsidiary road within the meaning of the Roads and Jetties Act 1935 ;

street means –

(a) a road with building continuous or nearly continuous on both sides or with the adjoining lands laid out for that purpose; and

(b) a terrace being a road with such building or land so laid out on only one side; and

(c) a cul-de-sac being a rectangular, polygonal or rounded space containing a road and with the perimeter so built on or so laid out;

way means –

(a) any land over which anyone other than the person in possession, his or her family, servants, customers or callers, may of right pass and repass with or without animals and vehicles; and

(b) any land which obviously appears to be regularly used for the passage of persons with or without animals or vehicles; and

(c) any land made ready to be so regularly used.

(2)  If a path would be adjoining but for a nature strip, the path is taken to be adjoining and the nature strip is taken to be part of the road.

(3)  A railway or tramway, other than a street tramway, is not a road except where it crosses a road on the same level or, in running along a road, it is not separated from the road by any fence, cattle-guard, hedge, ditch or wall.

4.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –

(a) the administration of this Act is assigned to the Minister for Local Government; and

(b) the Department responsible to the Minister for Local Government in relation to the administration of this Act is the Department of Environment and Land Management.

PART 2 - Building and Plumbing

Division 1 - General provisions

5.   Interpretation of Part 2

(1)  [Section 5 Subsection (1) amended by No. 44 of 1994, s. 106 ]In this Part –

Appeal Board means the Building Appeal Board established under section 67 ;

Appeal Board Panel means the Building Appeal Board Panel established under section 70 ;

appointed member means a member other than the chairperson;

approve in relation to a building work, means approve by virtue of a permit issued in accordance with the Building Regulations;

block means a piece of land all in one piece of the same owner and not intersected by other land;

builder means –

(a) a person engaged by the owner of a building to manage or execute building work on the building; or

(b) if such a person does not exist or cannot be found, the owner of that building;

building includes a proposed building, part of a building, a structure and part of a structure;

Building Code of Australia means the code relating to the design and construction of buildings issued by the Australian Uniform Building Regulations Co-ordinating Council;

building inspector means a person appointed as such under section 24 ;

building line in relation to a road, means –

(a) a line prescribed by by-law or planning instrument as a building line; or

(b) if a line is not so prescribed, a line which is –

(i) 18 metres from the middle of a State highway or a road that is not within a city or town; or

(ii) 9 metres from the middle of a road (other than an alley) that is within a city or town;

Building Regulations means regulations made under section 15 ;

building surveyor means a person appointed as such under section 24 ;

building work means work relating to –

(a) the erection, re-erection, construction, alteration, repair, underpinning, demolition or removal of a building; and

(b) the addition to a building; and

(c) the excavation or filling incidental to an activity referred to in paragraph (a) or (b) ; and

(d) plumbing work carried out in association with an activity referred to in paragraph (a) , (b) or (c) ; and

(e) any other prescribed work;

engineer means a person appointed as such under section 24 ;

inspector means the building inspector or plumbing inspector, as the case requires;

Part includes any regulations made under this Part;

plumber means a person who holds an appropriate certificate of registration under the Plumbers and Gas-fitters Registration Act 1951 ;

plumbing inspector means a person appointed as such under section 24 ;

Plumbing Regulations means regulations made under section 16 ;

plumbing work means any work relating to the installation, alteration or maintenance of a water supply, a system of sewage or sullage drainage or disposal, stormwater drainage, roof drainage or trade waste drainage or a plumbing system;

Regulations Board means the Building and Plumbing Regulations Board established under section 8 .

(2)  The nature, purpose or use of a building is to be determined from –

(a) its design; or

(b) if it is suitable for different purposes or uses, according to its most natural purpose or use as inferred from its design, its situation and the declared intentions of the owner.

6.   Part prevails

The provisions of this Part prevail over the provisions of this or any other Act or any regulation, rule, by-law, planning instrument, standard, condition, determination or directive made under any other Act relating to building work or plumbing work.

7.   Inconsistent by-laws

Any provision of a by-law made under any Act which is inconsistent with any provision of this Part is of no effect.

Division 2 - Building and Plumbing Regulations Board

8.   Membership of Building and Plumbing Regulations Board

(1)  The Building and Plumbing Regulations Board is established.

(2)  [Section 8 Subsection (2) amended by No. 90 of 1995, s. 4 ]The Regulations Board consists of –

(a) the Director, who is the chairperson; and

(b) 7 other persons appointed by the Minister of whom –

(i) one is a building surveyor selected by the Minister from a panel of 3 persons nominated by the Local Government Association of Tasmania; and

(ii) one is an architect selected by the Minister from a panel of 3 architects nominated by the Royal Australian Institute of Architects, Tasmanian Chapter; and

(iii) one is a structural engineer selected by the Minister from a panel of 3 structural engineers nominated by the Institution of Engineers, Australia, Tasmanian Division; and

(iv) one is a builder selected by the Minister from a panel of 4 persons, 2 of whom are members of, and nominated by, the Australian Institute of Building, Tasmanian Chapter and 2 of whom are builders nominated by the Master Builders Association of Tasmania; and

(v) one is a person selected by the Minister from a panel of 4 persons, 2 of whom are members of, and nominated by, the Institute of Plumbing Australia and 2 of whom are members of, and nominated by, the Master Plumbers Association of Tasmania; and

(vi) one is a person who is not otherwise qualified for nomination but who, in the opinion of the Minister, is capable of representing the interests of the community; and

(vii) one is a person selected by the Minister from a panel of 3 persons nominated by the State Fire Commission.

(3)  If a nomination is not made under subsection (2) (b) , the Minister may appoint a suitably qualified person without such a nomination.

(4)  If a member of the Regulations Board referred to in paragraph (b) of subsection (2) is absent from office for any cause, the Minister, on the nomination of the relevant body referred to in that paragraph, may appoint a person to act in the office of that member during such an absence.

(5)  If a body referred to in subsection (2) ceases to exist or changes its name, the Governor, by order, may amend that subsection by substituting –

(a) the name of a body which the Governor is satisfied substantially represents the interests represented by the body which ceases to exist; or

(b) the name of the body as changed.

(6)  An appointed member is to be appointed for the period, not exceeding 3 years, as is specified in the instrument of appointment.

(7)  The holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office, is not disqualified from –

(a) holding that office and also the office of an appointed member; or

(b) accepting any remuneration payable to an appointed member.

(8)  An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister determines.

9.   Vacation of office

(1)  An appointed member may resign from office by written notice addressed to the Minister.

(2)  An appointed member vacates office if he or she –

(a) dies; or

(b) resigns; or

(c) is removed from office under subsection (3) , (4) or (5) .

(3)  The Minister may remove an appointed member from office if the member –

(a) is absent from 3 consecutive meetings of the Regulations Board without the permission of the Regulations Board; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(c) has been convicted in Tasmania of any crime or offence punishable by imprisonment for 12 months or longer or elsewhere of any crime or offence which, if committed in Tasmania, would be punishable by imprisonment for 12 months or longer; or

(d) is convicted of an offence against this Part.

(4)  The Minister may remove an appointed member from office if satisfied that the member is unable to perform adequately or competently the duties of office.

(5)  The Minister may remove an appointed member from office if –

(a) the Minister is satisfied, having regard to the information supplied by the body which nominated that member, that the member is no longer qualified to be a member of the Regulations Board; or

(b) the Regulations Board recommends the removal of that member.

10.   Filling of vacancies

(1)  If the office of an appointed member becomes vacant, the Minister may appoint a person to the vacant office for the remainder of that member's term of office.

(2)  If an appointed member is unable for any reason to perform the functions of a member of the Regulations Board, the Minister may appoint a suitable person to act in the office of that member for such period as the Minister determines.

11.   Convening and procedure of meetings

(1)  The chairperson of the Regulations Board is to convene a meeting of the Regulations Board –

(a) at least twice in each period of 12 months; or

(b) whenever required to do so by the Minister.

(2)  The chairperson of the Regulations Board is to preside at all meetings of the Regulations Board.

(3)  If the chairperson of the Regulations Board is not present at a meeting of the Regulations Board, the members present are to elect one of their number to preside at that meeting.

(4)  The person presiding at a meeting of the Regulations Board has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

(5)  The quorum at any meeting of the Regulations Board is 4 members.

(6)  A meeting of the Regulations Board may only transact business if there is a quorum present.

(7)  A question arising at a meeting of the Regulations Board is determined by a majority of votes of the members present and voting.

(8)  Subject to this section, the procedure for the calling of, and for the conduct of business at, meetings of the Regulations Board are as it determines.

12.   Functions of Regulations Board

The functions of the Regulations Board are –

(a) to review laws and proposed laws relating to building work and plumbing work in order to rationalize the effect and administration of those laws; and

(b) to initiate amendments of the Building Regulations and the Plumbing Regulations for the purpose referred to in paragraph (a) and –

(i) to simplify any requirements imposed by those regulations; and

(ii) to supersede any of those regulations; and

(iii) to bring any of the Building Regulations into conformity with models proposed by the Australian Uniform Building Regulations Co-ordinating Council; and

(iv) to take into account any technological changes affecting building and plumbing materials and building and plumbing techniques; and

(c) to consult with councils, government agencies and bodies which represent persons having an interest in matters relating to building work and plumbing work.

13.   Staff

(1)  The Director may make arrangements with the Head of an Agency, within the meaning of the Tasmanian State Service Act 1984 , for employees employed in that Agency who are experienced in matters relating to building or plumbing to be made available –

(a) for appointment as secretary to the Regulations Board; and

(b) to assist the Regulations Board and any advisory committee in the performance of their functions.

(2)  An employee may hold the office of secretary to the Regulations Board or assist the Regulations Board or an advisory committee in conjunction with a position in the State Service.

14.   Advisory committees

(1)  The Regulations Board may establish any advisory committees it determines are necessary or desirable to assist it in the exercise of its functions.

(2)  Subject to subsection (3) , a member of an advisory committee is entitled to be paid such remuneration (including travel and subsistence allowances) as the Minister may determine.

(3)  A member of an advisory committee who is an employee within the meaning of the Tasmanian State Service Act 1984 is only entitled to remuneration with the approval of the Head of the Agency in which the employee is employed.

Division 3 - Regulations

15.   Building regulations

(1)  The Governor, on the recommendation of the Regulations Board, may make regulations relating to buildings and building work.

(2)  Regulations under this section may be made in relation to the following matters:

(a) requirements and conditions relating to permits and certificates relating to any building or building work;

(b) applications for, and issue of, permits and certificates relating to any building or building work;

(c) duration of permits;

(d) staged permits;

(e) fees and the manner of their payment, refund and recovery;

(f) supervision and requirements of building work;

(g) inspections of buildings and building work;

(h) notices and orders in relation to buildings and building work;

(i) compliance with, and enforcement of, requirements relating to buildings and building work;

(j) methods of construction and use of materials;

(k) classification and use of buildings;

(l) location of buildings;

(m) standards of health and amenity relating to buildings;

(n) fire resistance of buildings;

(o) fire service installations;

(p) services and equipment in buildings;

(q) access to, and egress from, buildings;

(r) buildings and building work in landslip areas and areas prone to flooding or bush fires;

(s) appeals against notices, orders and requirements and the hearing and determination of such appeals.

(3)  Regulations made under this section may exempt building work or a type of building from any of the provisions of the regulations.

(4)  Regulations made under this section may adopt by reference the Building Code of Australia, any standards, rules, codes and specifications of bodies specified in that Code and any other standards, rules, codes and specifications.

(5)  Regulations may be made subject to conditions or so as to apply differently according to matters, limitations or restrictions specified in the regulations.

16.   Plumbing regulations

(1)  The Governor, on the recommendation of the Regulations Board, may make regulations relating to plumbing work.

(2)  Regulations under this section may be made in relation to the following matters:

(a) requirements and conditions relating to permits, certificates and authorizations relating to plumbing work;

(b) applications for, and issue of, permits, certificates and authorizations relating to any plumbing work or plumbing product;

(c) construction, use and maintenance of plumbing work;

(d) use of materials;

(e) standards of plumbing work;

(f) inspections and testing of any plumbing work;

(g) fees and the manner of their payment, refund and recovery;

(h) notices and orders in relation to plumbing work;

(i) appeals against notices, orders and requirements and the hearing and determination of such appeals.

(3)  Regulations made under this section may adopt by reference the Tasmanian Plumbing Code and any of the standards, rules, codes and specifications of bodies specified in that Code.

(4)  Regulations may be made subject to conditions or so as to apply differently according to matters, limitations or restrictions specified in the regulations.

(5)  In this section, the Tasmanian Plumbing Code means the code approved by the Minister under section 20 .

17.   General provisions relating to regulations

(1)  Regulations made under section 15 or 16 may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  Regulations made under section 15 or 16 may authorize any matter to be determined, applied or regulated by a person or body specified in the regulations.

(3)  If a regulationmade under section 15 or 16 requires anything to have certain qualities, the Minister may publish the trade names of things which, according to tests by competent persons, appear to have those qualities.

(4)  Any thing, the trade name of which is published under subsection (3) , is to be treated as having the qualities required for the purposes of the regulation in respect of which it is published.

(5)  A regulation under section 15 or 16 may contain provisions of a savings or transitional nature consequent on the enactment of those sections.

(6)  Regulations made under section 15 or 16 may provide for any form required under those regulations to be in a form approved by the Director.

18.   Approval of Regulations Board

(1)  A regulation, rule or by-law relating to the design of buildings, building work or plumbing work must not be made under any Act without the approval of the Regulations Board unless that Act expressly provides to the contrary.

(2)  A regulation, rule or by-law relating to the design of buildings, building work or plumbing work that is not made in compliance with subsection (1) is of no effect.

(3)  The Regulations Board may certify that a regulation, rule or by-law is only incidentally relating to the design of buildings, building work or plumbing work and does not require its approval.

19.   Standards, rules, &c.

The Minister, on the recommendation of the Regulations Board, may make codes, standards, rules, specifications or drawings relating to building work and plumbing work.

20.   Tasmanian Plumbing Code

The Minister, on the recommendation of the Regulations Board, may approve a code to be the Tasmanian Plumbing Code to provide for the technical requirements in respect of plumbing work and plumbing products.

21.   Food premises

A health surveyor, in accordance with the Building Regulations, may determine that the requirements of the Building Code of Australia in relation to food premises be altered.

22.   Farm buildings

A building surveyor, in accordance with the Building Regulations, may determine that the requirements of the Building Code of Australia in relation to farm buildings be altered.

23.   Buildings of architectural or historical interest

A building surveyor, in accordance with the Building Regulations, may determine that the requirements of the Building Code of Australia in relation to buildings of architectural or historical interest be altered.

Division 4 - Qualified persons

24.   Appointment of qualified persons

(1)  For the purpose of this Part, a council is to appoint on any terms and conditions it considers appropriate individuals qualified and competent to perform the duties of –

(a) a building surveyor; and

(b) a building inspector; and

(c) an engineer; and

(d) a plumbing inspector; and

(e) an architect.

(2)  If a council fails to appoint a building surveyor for 3 months, the Director may make the appointment.

(3)  The remuneration of a person appointed under subsection (2) is to be paid by the council.

(4)  A person is qualified or competent for the purpose of this Part if the person –

(a) has the qualifications or has satisfactorily passed any examination determined by the Director; and

(b) in the opinion of the Director, has appropriate experience.

25.   Functions of architects

(1)  Subject to the directions of a council, the architect is to –

(a) direct the planning and development of buildings required by the council; and

(b) direct the preparation of by-laws and planning requirements with respect to the design and siting of buildings.

(2)  An architect may exercise the powers and perform the duties of a building surveyor under this Act.

26.   Building inspectors

(1)  The council may require a building inspector to carry out inspections and surveys as required by the building surveyor.

(2)  A building inspector who has the appropriate qualifications and experience, on the resolution of the council, may exercise all the powers and duties of the building surveyor with respect to Class 1 and Class 10 buildings except the checking of structural calculations.

(3)  In this section, Class 1 and Class 10 building means any building classified as such under the Building Code of Australia.

(4)  In this section, appropriate qualifications and experience means any qualifications and experience the Director determines to be appropriate for the purposes of this section.

27.   Plumbing inspectors

The council may require a plumbing inspector to carry out inspections and surveys as directed by the engineer.

28.   Disclosure of interest

(1)  An architect, building surveyor, building inspector, engineer or plumbing inspector who has any interest in any matter in respect of which he or she is to carry out or assist in carrying out any work –

(a) must disclose that interest to the general manager; and

(b) is disqualified from carrying out or assisting in carrying out any of that work.

Penalty:  Fine not exceeding 20 penalty units.

(2)  The council may appoint another suitably qualified and competent person to perform the work.

(3)  A person who is disqualified from carrying out or assisting in carrying out any work is liable to pay to the council any excess amount the council expends in remunerating any person appointed under subsection (2) .

(4)  A payment referred to in subsection (3) is a debt due to the council and recoverable in a court of competent jurisdiction.

Division 5 - Existing buildings

29.   Application of Part to existing building

A building erected, constructed or altered in accordance with the Local Government Act 1962 is taken to be erected, constructed or altered in accordance with this Part.

30.   Restoration of buildings of architectural or historical interest

Any building of architectural or historical interest constructed otherwise than in accordance with this Part and taken down or destroyed may, with the consent of the council, be restored in the same material and same design as it originally was.

31.   Habitation of certain buildings

(1)  A person must not,without the approval of the council, inhabit a building which is not built as a dwelling for a period exceeding one month.

Penalty:  Fine not exceeding 50 penalty units.

(2)  An application for approval to inhabit is to –

(a) be in writing; and

(b) state the name of the owner and occupier of the land on which the building stands; and

(c) state the name of the occupier or proposed occupier of the building; and

(d) state the reasons for the occupation of the building; and

(e) state the nature of the building, including the details of its size, materials, water supply and its cooking, washing and sanitation arrangements.

(3)  The council may not refuse the approval to inhabit if it appears that the person is only inhabiting the building because –

(a) the person is working temporarily in the vicinity; and

(b) it is not reasonable to obtain better accommodation.

(4)  Any amount received as rent for inhabiting a building in respect of which –

(a) approval to inhabit is refused; or

(b) an application for such approval has not been made within one month of the habitation –

is a debt due from the person who received it to the council and recoverable in a court of competent jurisdiction.

(5)  The council may pay any money recovered under subsection (4) or part of such money to the person who first paid it.

32.   Change of use

A person must not change the use of a building except in accordance with this Part.

Penalty:  Fine not exceeding 50 penalty units.

33.   Alteration of fencing

Except with the consent of the council, a person must not erect a fence or any other structure which is not shown on any plan approved under the Building Regulations so as to restrict the use in connection with the building of the unoccupied area of the land on which it is built.

34.   Building certificates

(1)  Any of the following persons may apply to the council for a building certificate certifying that the council does not intend to take any action under this Part in relation to a building:

(a) the owner of the building;

(b) the purchaser of the building;

(c) any other person who is authorized by the owner or purchaser of the building to apply.

(2)  An application is to be made, and the issue of a building certificate is to be done, in accordance with the Building Regulations.

35.   Washing facilities

(1)  The council may order the owner of a dwelling in which –

(a) there are not adequate washing facilities to install such facilities; and

(b) there are adequate washing facilities within 60 metres of a common sewer into which they are capable of being drained, to connect them to the sewer –

to the satisfaction of the building surveyor within the period specified in the order.

(2)  A person must not fail to comply with an order under subsection (1) .

Penalty:  Fine not exceeding 5 penalty units and a daily fine not exceeding one penalty unit.

(3)  In this section adequate washing facilities means –

(a) a bath of a type required or permitted by the Building Regulations with a drain to the outside of the building; or

(b) a shower connected to a supply of water and in a place drained to the outside of the building.

Division 6 - Restrictions on buildings

36.   Declaration of landslip areas

(1)  The Governor, by order and on the recommendation of the Secretary of the responsible Department, may declare any specified area of a municipal area to be an A landslip area or a B landslip area.

(2)  Before making a recommendation under subsection (1) , the Secretary of the responsible Department must –

(a) be satisfied that the area is subject to earth movement because of inherent instability; and

(b) notify the council of the proposed recommendation.

(3)  On receipt of a notification, the council is to give written notice to the owners of any land in the area likely to be affected by the making of an order under this section.

(4)  An owner may object to the proposed recommendation to the Secretary of the responsible Department within 30 days after receipt of the notice referred to in subsection (3) .

(5)  The Secretary of the responsible Department may not proceed with the recommendation until all the objections and any evidence submitted have been considered.

(6)  Subsections (3) , (4) and (5) do not apply to any case which the Secretary of the responsible Department considers to be one which requires urgent action.

(7)  An order under this section must not take effect on a date less than 30 days after its making is notified in the Gazette.

(8)  In this section, Secretary of the responsible Department means the Secretary of the Department responsible for the administration of the Mining Act 1929 .

37.   Effect of landslip order

(1)  A person must not erect, or add to, a building in an area which is declared to be an A landslip area under section 36 except in accordance with subsection (2) .

Penalty:  Fine not exceeding 100 penalty units.

(2)  The Minister, on the recommendation of a council, may permit a person to –

(a) erect a shed or an insubstantial building in an A landslip area; or

(b) add to a building in an A landslip area; or

(c) erect a building which is subject to the Building Regulations within the boundaries of a wharf in an A landslip area.

(3)  In this section, insubstantial building means a building that –

(a) has a total floor area not exceeding 25 square metres; and

(b) is not more than one storey high.

38.   Registration of landslip area order

(1)  [Section 38 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The Minister is to cause an order made under section 36 to be registered –

(a) in the case of land under the Land Titles Act 1980 , by lodging with the Recorder of Titles –

(i) a copy of the order; and

(ii) a statement signed by the Minister specifying the titles affected by the order; or

(b) in any other case, by filing with the Recorder of Titles a certified copy of the order under the Registration of Deeds Act 1935 as if it were an instrument to which the Minister is a party.

(2)  The Recorder of Titles is to record the particulars of an order registered under subsection (1) (a) on any title to land affected by the order.

(3)  An order recorded on a title to land is an interest for the purposes of section 40 of the Land Titles Act 1980 .

(4)  [Section 38 Subsection (4) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The Recorder of Titles is to –

(a) endorse a certified copy of an order registered under subsection (1) (b) with a statement stating that the order has been registered under this section; and

(b) keep all the relevant documents relating to the order.

39.   Compensation not payable

Compensation or other relief is not payable for any damage caused by earth movement to any building which is erected in an A landslip area or a B landslip area after an order has been registered under section 38 and not revoked under section 40 .

40.   Revocation or amendment of landslip area order

(1)  The Governor, by order and on the recommendation of the Secretary of the responsible Department, may –

(a) revoke an order made under section 36 ; or

(b) amend the order by –

(i) changing the category of the landslip area; or

(ii) altering the area of a landslip area.

(2)  The Minister is to register an order under subsection (1) in accordance with section 38 .

(3)  The provisions of sections 36 to 39 inclusive apply to an order under this section by which –

(a) land that is not part of a landslip area becomes part of one; or

(b) land in a B landslip area becomes part of an A landslip area.

41.   Access to roads

(1)  Subject to subsection (4) , a person must not, without the approval of the Minister, build or cause to be built a dwelling on a block of land in an urban area or a changing building area which does not have access to a road by –

(a) a direct frontage onto the road of not less than 6 metres; or

(b) a private road which is not less than –

(i) 3·6 metres wide, in the case of land which is a minimum lot under Part 3 ; or

(ii) 6 metres wide at its narrowest part and is not the only or principal means of access to another dwelling.

Penalty:  Fine not exceeding 100 penalty units.

(2)  The Minister may only give approval under subsection (1) –

(a) at the request of the council; and

(b) if, in the opinion of the council, the block of land has sufficient access to a highway.

(3)  If an owner is convicted of an offence against this section, the council may order the person to remove the dwelling in respect of which the offence was committed.

(4)  This section does not apply to the building of a dwelling on a block of land if that block –

(a) forms part of land which was subdivided into building blocks before 15 December 1929; and

(b) was purchased or acquired as a building block by the person proposing to build the dwelling; and

(c) the dwelling could have been lawfully built at that date.

42.   Building between building line and boundary

A person must not erect a building between the building line and the boundary of a road or State highway.

Penalty:  Fine not exceeding 20 penalty units.

43.   Building areas

(1)  A building area may be –

(a) urban; or

(b) country; or

(c) changing.

(2)  Every city and town is an urban building area and may be divided by by-law into –

(a) an inner and an outer area; or

(b) a central, an inner and an outer area.

(3)  A city or town which is not divided is subject to the same enactments, regulations and by-laws as an outer area.

(4)  The Governor, at the request of a council pursuant to a special resolution, by proclamation, may declare any defined area of a municipal area to be a changing building area if the area –

(a) is not within a city or town; or

(b) is being, or is in the opinion of the council likely to be, developed as a suburb, holiday resort or similar built-up area.

(5)  The Governor, on the request of a council pursuant to a special resolution, by proclamation, may declare any defined area of a municipal area not within an urban building area or a changing building area to be a country building area.

(6)  The boundaries of any building areas may at any time be altered.

Division 7 - Building work and plumbing work

44.   Building and plumbing work to comply with Part

(1)  [Section 44 Subsection (1) amended by No. 90 of 1995, s. 5 ]A person must not carry out building work or plumbing work otherwise than in accordance with this Part.

Penalty:  Fine not exceeding 50 penalty units.

(2)  If building work in relation to a building is carried out otherwise than in accordance with this Part, the council, in accordance with the Building Regulations, may –

(a) require the owner of the building to demolish the building; or

(b) allow the building to remain subject to any prescribed conditions.

45.   Permits to carry out building work

(1)  Subject to subsections (2) and (3) , a person must not carry out building work without a permit issued under the Building Regulations.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person may carry out building work without a permit if –

(a) a municipal building surveyor has determined the building work to be minor alterations or minor repairs; and

(b) the building work is to be carried out in accordance with the Building Code of Australia; and

(c) the building work does not cause the building to contravene this Part or any other law of the State.

(3)  A person may carry out building work without a permit if that work is exempt under the Building Regulations from the requirement of a permit.

(4)  A permit is to be issued within –

(a) the period agreed to by the applicant and the building surveyor; or

(b) if there is no agreement, the prescribed period.

(5)  Building work in respect of which a permit is issued is to be commenced and completed within –

(a) the period agreed to by the applicant and the building surveyor; or

(b) if there is no agreement, the prescribed period.

46.   Permits for removal and re-erection

(1)  A person must not remove a building from one municipal area and re-erect it in another municipal area without –

(a) a permit issued by the council of the first-mentioned municipal area to remove it; and

(b) a permit issued by the council of the second-mentioned municipal area to carry out the building work.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A permit under this section is to be issued in accordance with the Building Regulations.

47.   Heating appliances

A person must not install a stove, heater or any similar appliance which burns oil or solid fuel unless that installation is carried out in accordance with the Building Code of Australia.

Penalty:  Fine not exceeding 20 penalty units.

48.   Certificate of occupancy

(1)  A person must not use, occupy or change the use of a building –

(a) unless a certificate of occupancy in respect of that building is in force under the Building Regulations; or

(b) except as provided under section 31 .

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.

(2)  A person may apply to the council for a certificate of occupancy in accordance with the Building Regulations.

49.   Certificate of completion of building work

If the council is satisfied that building work is completed, it is to issue a certificate of completion.

50.   Permits for plumbing work

(1)  Subject to subsection (2) , a person must not carry out any plumbing work unless –

(a) a plumbing permit for that plumbing work is issued by the council in accordance with the Plumbing Regulations; and

(b) the plumbing work is carried out in accordance with the Plumbing Regulations.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person may carry out plumbing work without a permit if that work is exempt under the Plumbing Regulations from the requirement of the permit.

51.   Permits for special connections

(1)  [Section 51 Subsection (1) amended by No. 90 of 1995, s. 6 ]A plumber must not carry out any of the following plumbing work, or cause or permit any of the following plumbing work under his or her control to be carried out, without a special connection permit issued by the council in accordance with the Plumbing Regulations:

(a) the installation of a fixture or appliance which discharges waste into a sewerage system and is located on a floor of a building or structure that is wholly or partly below ground level;

(b) the installation of a sanitary or food waste disposal unit;

(c) the installation of drainage from a polluted area or a swimming pool;

(d) the installation of an inlet for a sewerage installation at a level which is lower than 150 millimetres above the declared flood level for the land on which the sewerage installation is located;

(da) the installation of an on-site disposal system;

(db) the installation of a testable backflow prevention device;

(dc) the connection of an unregistrable relocatable dwelling to a water supply or sewerage system;

(dd) the installation of trade waste drainage;

(e) plumbing work involving the retention of an existing plumbing product or material which does not comply with the Plumbing Regulations.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A requirement for a special connection permit is additional to any requirement for a plumbing permit under section 50 .

(3)  [Section 51 Subsection (3) substituted by No. 90 of 1995, s. 6 ]In this section –

on-site disposal system means a disposal or treatment system servicing one or more blocks;

sewage installation means such an installation as defined in the Plumbing Regulations;

testable backflow prevention device means such a device as defined in the Plumbing Regulations;

unregistrable relocatable dwelling means such a dwelling as defined in the Plumbing Regulations.

52.   Start work authorization

(1)  Subject to subsection (2) , a person must not start any plumbing work, or cause or permit any plumbing work under his or her control to be started, without an authorization to start work issued by the council in accordance with the Plumbing Regulations.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person may start plumbing work, or cause or permit plumbing work under his or her control to be started without authorization if –

(a) the plumbing work is required in an emergency situation; and

(b) the plumber obtains the authorization on or before the first working day following the day on which the plumbing work is started.

53.   Certificate of completion of plumbing work

(1)  On completion of any plumbing work, the council is to issue a certificate of completion –

(a) after inspecting the work and being satisfied that the work complies with the Plumbing Regulations; or

(b) after accepting a notice in a form approved by the Director from a plumber that the work complies with the Plumbing Regulations.

(2)  The council may refuse to issue a certificate of completion if not satisfied that the plumbing work complies with the Plumbing Regulations.

54.   Defective plumbing work

A person who carried out plumbing work or under whose control plumbing work was carried out must make good a defect in the plumbing work at his or her own expense if –

(a) the defect is found within one year after the day on which the certificate of completion under section 53 was issued for the plumbing work; and

(b) the engineer certifies that the defect is due to faulty workmanship or the use of a defective or unauthorized material or fitting.

Penalty:  Fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.

Division 8 - Building control

55.   Terms and conditions on approvals

(1)  A council may give approval or consent under this Part subject to any terms and conditions it considers appropriate.

(2)  A person and his or her successors in title are bound by any terms and conditions accepted by that person.

(3)  An approval or consent is taken to be withdrawn if a person or his or her successor in title fails to comply with any terms or conditions.

(4)  A successor in title is only liable to any penalty if he or she had actual notice of the terms or conditions.

(5)  A council may execute a deed poll setting out the terms of conditions binding a person and his or her successors in title to comply for the benefit of all other lands within the municipal area.

(6)  A deed poll under subsection (5) is –

(a) registrable as if it were an indenture; and

(b) enforceable by the council as if it were the owner of all the other lands in the municipal area.

56.   Prohibitions

A council, in prohibiting any thing under this Part, may do so subject to any restrictions, limitations or conditions it considers appropriate.

57.   Refusal of approval

(1)  In determining an application for approval of the erection or alteration of a building, a council is to consider the following matters:

(a) the purpose and objects of the Building Regulations;

(b) the healthiness of the building in respect of both its occupants and the neighbours;

(c) the stability of the site;

(d) the disposal of –

(i) faeces and sullage water within the meaning of the Sewers and Drains Act 1954 ; and

(ii) industrial wastes and effluents from the building and its site;

(e) the provision of water for the building;

(f) the means of access to the building generally and in particular access as referred to in section 41 .

(2)  A council must refuse to approve any application for approval of the erection or alteration of a building if –

(a) the building would not comply with this Part; or

(b) it considers that any matter considered by it under subsection (1) requires the refusal.

58.   Stopping illegal works

(1)  A building surveyor may serve a notice in writing on any person to stop any work specified in the notice which is being done in contravention of this Part in relation to –

(a) building work; or

(b) excavation for a building within 3 metres of a building belonging to an adjoining owner.

(2)  A notice may be served on –

(a) any person apparently in control of workers on the site; or

(b) any person working on the site.

(3)  A notice remains in force until it is –

(a) withdrawn by the building surveyor; or

(b) revoked by the council; or

(c) quashed by the Appeal Board.

(4)  A person served with a notice must not continue to work or permit work to continue in contravention of the notice.

Penalty:  Fine not exceeding 50 penalty units and a daily fine not exceeding 5 penalty units.

(5)  A person aggrieved by a notice may appeal to the Appeal Board.

59.   Entry to comply with order

Any person may, for the purpose of complying with any notice or order under this Part, enter and re-enter any building or place to do anything necessary to comply with that notice or order after giving 7 days' notice to the occupier of the building or place.

60.   Council may do work

(1)  If a person has failed to take down or alter a building within the period ordered or required to do so, the council may cause that work to bedone.

(2)  In doing work pursuant to subsection (1) , the council or any person doing the work on its behalf may –

(a) enter on the land where the work is to be done with the appropriate equipment; and

(b) exclude other persons from the place where the work is being done; and

(c) if anything is to be altered, determine the form of the alteration so far as it was not previously specified; and

(d) if anything is to be taken down, demolished or removed, determine in what condition the remainder is to be left; and

(e) carry away to some convenient place any materials removed; and

(f) sell any materials so carried away and credit the proceeds to the cost of the work.

(3)  The council is to ensure that –

(a) the place where any work is done is left clean and tidy; and

(b) any part of a building affected by the work is finished off in an appropriate manner.

(4)  The council may recover the cost of any work done under this section from –

(a) the person who failed to do that work as ordered or required; or

(b) the owner of the building.

61.   Possession of building

(1)  If the occupier of land where work under section 60 is to be done fails to allow any person to do that work in peace, the council may proceed under the Justices Act 1959 against the occupier to obtain possession of the building.

(2)  On the hearing of a complaint, the justices may order the occupier to give the council possession of the building within the period specified by the justices.

(3)  If a person fails to comply with an order under subsection (2) , the justices or one of them who made the order may issue a warrant commanding police officers to –

(a) enter into the building by force if necessary and with any assistance they consider necessary; and

(b) eject any person from the building; and

(c) deliver possession of the building to the council.

(4)  Any action pursuant to a warrant is not to be taken between the hours of 9 a.m. and 4 p.m. on a Sunday, Christmas Day or Good Friday.

(5)  A council may remain in possession of a building pursuant to a warrant until the work is completed.

62.   Demolition of buildings

(1)  If a council is entitled to take down a building pursuant to section 60 , it may –

(a) sell the building for removal; or

(b) after demolishing the building, sell the materials on the site for removal.

(2)  The council may grant the purchaser of a building under subsection (1) (a) all the powers the council has under sections 60 and 61 .

(3)  The rights of the purchaser of a building –

(a) are capable of protection by caveat under the Land Titles Act 1980 , if the land is subject to that Act; or

(b) are registrable in the Registry of Deeds as if the deed by which they were granted were a judgment.

(4)  The rights of the purchaser of materials are to be created by a bill of sale registrable under the Bills of Sale Act 1900 .

(5)  A purchaser who fails to remove a building or materials within a reasonable period is liable to the occupier of the building in damages for use and occupation of the land.

(6)  A council is to pay to the owner of the building or materials sold under subsection (1) the balance of any proceeds of the sale after deducting any expenses incurred by it.

(7)  Any money not claimed within one year after the sale is to be paid into the Consolidated Fund and may only be paid out of it by order of the Supreme Court on the petition by a person entitled to it.

63.   Orders or requirements to be made within 12 months

A council must not make an order or requirement requiring a person to take down or alter any work done in contravention of this Part 12 months or more after the contravention became known to the council.

Division 9 - Application to Crown, marine boards and councils

64.   Government buildings

(1)  Any building built by or under contract to any department is to be built in accordance with this Part except so far as the appropriate Minister otherwise directs.

(2)  Any building built by or under contract to any statutory corporation which is an agent of the Crown is to be built in accordance with this Part.

(3)  Any approval or inspection or discretion required or permitted under this Part is to be given or made by the appropriate officer of the Crown or statutory corporation.

(4)  If a building built by or under contract to a department or a statutory corporation which is an agent of the Crown has underground drains, the department or statutory corporation is to lodge a plan of the underground drains with the council of the municipal area in which it is built.

(5)  If a building built by or under a contract to a department or a statutory corporation which is an agent of the Crown has a device installed to prevent a backflow to a public water supply, the department or statutory corporation is to –

(a) notify the council of the installation; and

(b) maintain that device in accordance with the Plumbing Regulations.

65.   Building by marine boards

(1)  Notwithstanding section 19 of the Marine Act 1976 , any building built by a marine board within the boundaries of a wharf is to be built in accordance with this Part.

(2)  Any approval required or discretion permitted under this Part is to be given or made by the marine board having jurisdiction within the boundaries of the wharf.

(3)  A marine board may delegate any of its power of approval or discretion that is not exercisable only by the council to any of its officers.

66.   Part applies to council

This Part applies to buildings and works of the council.

Division 10 - Building appeals

67.   Building Appeal Board

(1)  The Building Appeal Board is established.

(2)  [Section 67 Subsection (2) amended by No. 90 of 1995, s. 7 ]The Appeal Board consists of 6 persons appointed by the Minister of whom –

(a) one is an architect selected by the Minister from a panel of 3 architects nominated by the Royal Australian Institute of Architects, Tasmanian Chapter; and

(b) one is a structural engineer selected by the Minister from a panel of 3 structural engineers nominated by the Institution of Engineers Australia, Tasmanian Division; and

(c) one is a person selected by the Minister from a panel of 6 persons, 3 of whom are members of, and nominated by, the Master Plumbers Association of Tasmania and 3 of whom are members of, and nominated by, the Institute of Plumbing Australia, Tasmanian Chapter; and

(d) one is a builder who is a member of the Australian Institute of Building, Tasmanian Chapter, selected by the Minister from 3 members of that Institute nominated by that Chapter; and

(e) one is a councillor selected by the Minister from a panel of 4 councillors nominated by the Municipal Association of Tasmania; and

(f) one is the chairperson.

(3)  An employee of a council is not eligible for nomination as a member of the Appeal Board under subsection (2) .

(4)  A member of the Appeal Board is to be appointed for the period, not exceeding 3 years, as is specified in the instrument of appointment.

(5)  The holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office, is not disqualified from –

(a) holding that office and also the office of a member of the Appeal Board; or

(b) accepting any remuneration payable to a member of the Appeal Board.

(6)  A member of the Appeal Board is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister determines.

68.   Convening and procedure of meetings

(1)  The chairperson of the Appeal Board or, in the absence of the chairperson, the Director, is to convene a meeting of the Appeal Board.

(2)  The chairperson of the Appeal Board is to preside at all meetings of the Appeal Board.

(3)  If the chairperson is not present at a meeting of the Appeal Board, the members present are to elect one of their number to preside at that meeting.

(4)  The person presiding at a meeting of the Appeal Board has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

(5)  The quorum at any meeting of the Appeal Board is 4 members.

(6)  A meeting of the Appeal Board may only transact business if there is a quorum present.

(7)  A question arising at a meeting of the Appeal Board is determined by a majority of votes of the members present and voting.

(8)  Subject to this section, the procedure for the calling of, and for the conduct of business at, meetings of the Appeal Board are as it determines.

69.   Disqualification

(1)  A member of the Appeal Board is disqualified from acting as a member on any appeal or reference to the Appeal Board relating to any building of which the member is the owner, architect or engineer or in which he or she has a direct or indirect interest.

(2)  A member of the Appeal Board who is a councillor is disqualified from acting as a member on any appeal or reference to the Appeal Board relating to any building in the municipal area of which he or she is a councillor.

70.   Building Appeal Board Panel

(1)  The Building Appeal Board Panel is established.

(2)  [Section 70 Subsection (2) amended by No. 90 of 1995, s. 8 ]The Appeal Board Panel consists of 16 persons appointed by the Minister of whom –

(a) 3 are architects selected by the Minister from a panel of 6 architects nominated by the Royal Australian Institute of Architects, Tasmanian Chapter; and

(b) 3 are structural engineers selected by the Minister from a panel of 6 structural engineers nominated by the Institution of Engineers Australia, Tasmanian Division; and

(c) 3 are persons selected by the Minister from a panel of 6 persons, 3 of whom are members of, and nominated by, the Master Plumbers Association of Tasmania and 3 of whom are members of, and nominated by, the Institute of Plumbing Australia, Tasmanian Chapter; and

(d) 3 are members of the Australian Institute of Building, Tasmanian Chapter, selected by the Minister from a panel of 6 members of that Institute nominated by that Chapter; and

(e) 4 are councillors selected by the Minister from a panel of 8 councillors nominated by the Municipal Association of Tasmania.

(3)  A member of the Appeal Board Panel is to be appointed for the period, not exceeding 3 years, as is specified in the instrument of appointment.

(4)  The function of a member of the Appeal Board Panel is to act as a member of the Appeal Board if that member is for any reason unable to act as such.

71.   Nominations

(1)  A nomination for appointment as a member of the Appeal Board or the Appeal Board Panel is to be accompanied by the written consent of the person nominated.

(2)  If a nomination is not made under section 67 or 70 within 30 days after requested by the Minister, the Minister may appoint a suitably qualified person without such a nomination.

(3)  If a body referred to in section 67 or 70 ceases to exist or changes its name, the Governor may, by order, amend those sections by substituting –

(a) the name of a body which the Governor is satisfied substantially represents the interests represented by the body which ceases to exist; or

(b) the name of the body as changed.

72.   Vacation of office

(1)  A member of the Appeal Board or Appeal Board Panel may resign from office by written notice addressed to the Minister.

(2)  A member of the Appeal Board or Appeal Board Panel vacates office if he or she –

(a) dies; or

(b) resigns; or

(c) is removed from office under subsection (3) , (4) or (5) .

(3)  The Minister may remove a member of the Appeal Board or Appeal Board Panel from office if the member –

(a) is absent as a member from 3 consecutive meetings of the Appeal Board without the permission of the Appeal Board; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(c) has been convicted, in Tasmania of any crime or offence punishable by imprisonment for 12 months or longer or elsewhere of any crime or offence which if committed in Tasmania would be punishable by imprisonment for 12 months or longer; or

(d) is convicted of an offence against this Part.

(4)  The Minister may remove a member of the Appeal Board or Appeal Board Panel from office if satisfied that the member is unable to perform adequately or competently the duties of office.

(5)  The Minister may remove a member of the Appeal Board or Appeal Board Panel from office if the Minister is satisfied, having regard to the information supplied by the body which nominated that member, that the member is no longer qualified to be a member of the Appeal Board or Appeal Board Panel.

73.   Filling of vacancies

If the office of a member of the Appeal Board or Appeal Board Panel becomes vacant, the Minister may appoint a person to the vacant office for the remainder of that member's term of office.

74.   Assistance to Appeal Board

(1)  The Appeal Board may make arrangements with the Head of an Agency, within the meaning of the Tasmanian State Service Act 1984 , for employees employed in that Agency to be made available to the Appeal Board to enable it to perform its functions under this Act.

(2)  A person may be made available to the Appeal Board in conjunction with a position in the State Service.

75.   References

(1)  A person may lodge with the Appeal Board a reference in respect of any building work or plumbing work which is proposed or being undertaken raising the question whether a provision of the Building Regulations, the Plumbing Regulations or a code relating to building work or plumbing work may reasonably be varied or deemed inappropriate without detriment to the public interest.

(2)  A person may not lodge a reference in respect of building work or plumbing work that is completed.

(3)  If the subject matter of a reference is not opposed by the relevant council or other interested authority, the reference is to be determined by –

(a) the chairperson of the Appeal Board; or

(b) the Appeal Board if the chairperson is unable to determine the reference or directs the Appeal Board to determine it.

(4)  If the subject matter of a reference is opposed by the relevant council or other interested authority, the reference is to be determined by the Appeal Board.

(5)  In determining a reference, the Appeal Board or the chairperson of the Appeal Board must take into account –

(a) the relevant Acts, regulations, codes or standards; and

(b) the special knowledge or competence of the relevant council or other interested authority; and

(c) the public interest.

76.   Appeals relating to permits and certificates

(1)  A person may appeal to the Appeal Board against –

(a) the decision of a council to –

(i) refuse to issue any permit under the Building Regulations; or

(ii) refuse to issue a certificate of occupancy under the Building Regulations; or

(iii) refuse to issue a certificate of completion in respect of building work; or

(iv) refuse to issue a plumbing permit under the Plumbing Regulations; or

(v) refuse to issue a special connection permit under the Plumbing Regulations; or

(vi) refuse to issue an authorization to start work under the Plumbing Regulations; or

(vii) refuse a certificate of completion in respect of plumbing work; or

(b) the failure of the council to make any of the following decisions within the period specified in the Building Regulations or Plumbing Regulations:

(i) a decision in respect of issuing a permit under the Building Regulations;

(ii) a decision in respect of issuing a certificate of occupancy under the Building Regulations;

(iii) a decision in respect of issuing a certificate of completion in respect of building work;

(iv) a decision in respect of issuing a plumbing permit under the Plumbing Regulations;

(v) a decision in respect of issuing a special connection permit under the Plumbing Regulations;

(vi) a decision in respect of issuing an authorization to start work under the Plumbing Regulations;

(vii) a decision in respect of issuing a certificate of completion in respect of plumbing work; or

(c) a determination made by the chairperson of the Appeal Board under section 75 (3) (a) ; or

(d) a determination under sections 21 , 22 and 23 to alter or not to alter the requirements of the Building Code of Australia; or

(e) a requirement in any provision of the General Fire Regulations 1975 relating to existing premises.

(2)  In hearing an appeal, the Appeal Board must hear the appellant and any authority or other persons who appear to it to have an interest in the subject matter of the appeal.

(3)  In determining an appeal, the Appeal Board may –

(a) reject the appeal; or

(b) allow the appeal; or

(c) vary the decision appealed against; or

(d) give such decision as it thinks the relevant authority should have given; or

(e) direct the relevant authority –

(i) to revoke its decision and substitute another; or

(ii) to vary its decision; or

(iii) to take certain action.

(4)  In determining an appeal, the Appeal Board may determine that the Building Regulations or the Plumbing Regulations relating to the subject matter of the appeal do not apply.

(5)  In determining an appeal, the Appeal Board must take into account –

(a) the relevant Acts, regulations, codes or standards; and

(b) the special knowledge or competence of the relevant council or other interested authority; and

(c) the public interest.

77.   Powers of Appeal Board

On an appeal or reference the Appeal Board may –

(a) cause parties to be added; and

(b) if a decision depends on the decision of another State authority, extend the scope of the appeal or reference so as to settle the whole matter, causing to be added all proper parties for that purpose; and

(c) appoint one of its members to make any inquiry or any survey that appears to it necessary or expedient for the purposes of the appeal or reference; and

(d) use the knowledge of its own members, however gained; and

(e) rely on, and adjourn proceedings to obtain, reports of tests of competent persons; and

(f) if a party given notice of the time and place of hearing does not appear, proceed with the hearing and determine it as if that party were present; and

(g) if a party's expenses have in the Appeal Board's opinion been caused or increased by unreasonable or improper conduct of another party, order the latter to pay the former such sum by way of costs as it may fix.

78.   Supreme Court opinion

(1)  The Appeal Board may at any time, and must if ordered by a judge in chambers, on an application in a summary way made by any party to the appeal or reference, state a case for the opinion of the Supreme Court on any question of law arising in an appeal or reference.

(2)  The Supreme Court is to hear and determine the question of law arising on the case stated by the Appeal Board and remit its opinion to the Appeal Board.

(3)  The Appeal Board is bound by an opinion of the Supreme Court.

(4)  The Supreme Court may make any order as to costs as it thinks fit.

(5)  An application under this section may only be made by a party who has already asked the Appeal Board to state a case on the question.

(6)  Except as provided in this section, every decision of the Board is final and binding on the parties to the appeal or reference.

79.   Regulations relating to appeals

The Governor, by regulation, may provide for –

(a) the mode and time of instituting appeals and making references; and

(b) the procedure of the Appeal Board; and

(c) fees to be paid by appellants and other parties and for inspecting documents and for copies of documents; and

(d) payment to witnesses; and

(e) deposits to be paid by appellants; and

(f) recording of appeals and references; and

(g) giving effect to the decisions of the Appeal Board.

PART 3 - Subdivisions

Division 1 - Interpretation

80.   Interpretation of Part 3

(1)  In this Part –

alley means a road or path less than 10 metres wide and bounded on one or both sides by land –

(a) on which the buildings are contiguous or continuous; or

(b) which is laid out to be built upon;

block means a piece of land all in one piece of the same owner and not intersected by other land;

final plan means a final plan referred to in section 87 ;

highway authority means a council or authority responsible for the management of a highway or part of a highway;

improvement includes landscaping, fencing and the provision of playground equipment, walking paths, car parking areas and toilet facilities;

lot means a block of land created by subdivision of a larger block of which it was part;

minimum lot means the minimum lot for an area as provided by section 109 ;

movable dwelling unit means a movable dwelling unit erected under Part VIA of the Homes Act 1935 ;

plan of subdivision means a plan submitted to a council for the purpose of a permit under the Land Use Planning and Approvals Act 1993 in relation to subdivision of land;

previously approved plan means a plan of subdivision sealed by the relevant council under the Local Government Act 1962 ;

public open space means space for public recreation or public gardens or for similar purposes;

sealed plan means a plan which –

(a) has been approved and sealed under this Part; and

(b) has taken effect as provided in section 94 ;

subdivide means to divide the surface of a block of land by creating estates or interests giving separate rights of occupation otherwise than by –

(a) a lease of a building or of the land belonging to and contiguous to a building between the occupiers of that building; or

(b) a lease of air space around or above a building; or

(c) a lease of a term not exceeding 10 years or for a term not capable of exceeding 10 years; or

(d) the creation of a flat on a stratum plan; or

(e) an order adhering existing parcels of land;

subdivision means –

(a) the act of subdividing; or

(b) the block of land subject to an act of subdividing;

sub-minimum lot means a parcel of land that has not the qualities of a minimum lot.

(2)  For the purposes of this Part, land constitutes a block if it is –

(a) likely to be used to build on; and

(b) unlikely to be used by a farmer, grazier, fruit grower or similar person as the sole source of income.

(3)  For the purpose of determining whether any land constitutes a block for subdivision purposes, a block is –

(a) the whole of an existing lot on a plan lodged with the Recorder of Titles or the Registrar of Deeds not later than 12 months after the date of commencement of the Land Use Planning and Approvals Act 1993 ; or

(b) the whole of an original Crown grant; or

(c) the whole of the land that is identified by description in a folio of the Register kept under the Land Titles Act 1980 ; or

(d) the whole of the land that is identified by description in a deed; or

(e) a fragmented or subdivided portion of land referred to in this subsection that can be verbally identified for transfer, or retention in the folio of that Register, by description.

(4)  Land is not to be regarded as a block for subdivision purposes if it is –

(a) intersected by a highway, railway, tramway or any other way; or

(b) intersected by land of the Crown, the Commonwealth or another person; or

(c) a fragmented or subdivided portion of land referred to in subsection (3) (a) , (b) , (c) or (d) , either being transferred, or being retained in the folio of the Register kept under the Land Titles Act 1980 , that requires mathematical closure for description.

(5)  The erection, use or occupation on a block of a movable dwelling unit does not of itself amount to a subdivision of the block so long as no separate rights of occupation are given to the unit or the part of the block on which it is situated other than those arising from an estate at will or a licence revocable at will.

(6)  Subsections (3) and (4) commence 12 months after the commencement of the Land Use Planning and Approvals Act 1993 .

Division 2 - Plans of subdivision

81.   Subdivision

(1)  An owner of land must not subdivide the land except in accordance with –

(a) a previously approved plan; or

(b) a plan of subdivision which has been approved by the granting of a permit under the Land Use Planning and Approvals Act 1993 .

Penalty:  Fine not exceeding 50 penalty units.

(2)  Unless the relevant planning scheme or interim order provides otherwise, an application for approval of a subdivision plan is to be made as if it were an application for a discretionary permit under section 57 of the Land Use Planning and Approvals Act 1993 .

(3)  In proceedings for an offence against this section, instead of imposing a fine, a court may order –

(a) the forfeiture of the value of the estate disposed of, in the case of giving, selling or letting the estate; or

(b) the forfeiture of the cost of building done up to the date of the trial, in the case of building.

82.   Voluntary submissions of plans

Any owner of land who may subdivide the land otherwise than in accordance with a previously approved plan or an approved plan of subdivision may proceed in accordance with the relevant sections to obtain the benefits of this Part.

83.   Approval of plan of subdivision

(1)  Subject to section 116 , the council, as a condition of its approval of a plan of subdivision, may –

(a) require the owner to sell to it for a nominal consideration any land shown on the plan as set apart for a public open space or for drainage purposes; or

(b) require the owner to mark on the plan in respect of any proposed way, the words "to be acquired by the highway authority".

(2)  If the owner claims a valuable interest in the land over or under the proposed way, the owner is entitled to a fair price as agreed with the council in the conveyance or transfer of the way.

(3)  If there is no agreement as to a fair price, the compensation payable to the owner is to be determined as a disputed claim for compensation under the Land Acquisition Act 1993 .

(4)  The use of the words "to be acquired by a highway authority" does not prevent a disposition of the land affected but the obligation to convey or transfer the way runs with the land.

(5)  The council may require a final plan of subdivision to note, in respect of a block –

(a) that the council cannot or will not –

(i) provide a supply of water; or

(ii) provide means of sewerage or drainage for all or some specified kind of effluent from the block; or

(iii) permit a septic tank; or

(b) that the council may permit –

(i) a septic tank; or

(ii) a specific form of on site sewerage treatment.

(6)  A notification under subsection (5) is to be treated as if it created an easement for the benefit of the council and may be destroyed wholly or in part by an instrument in the nature of a release of the block by the council.

84.   Council not to approve subdivision

(1)  The council is not to approve a plan of subdivision if –

(a) any proposed lot has not the qualities of a minimum lot; or

(b) it includes any lot or other block of land smaller than is required or permitted by a finally approved planning scheme or interim order; or

(c) the subdivision includes any road or other works whereby drainage will be concentrated and discharged into any drain or culvert on or under any State highway, unless the Minister administering the Roads and Jetties Act 1935 has first approved so much of the application as affects the drainage.

(2)  For the purposes of subsection (1) the Minister administering the Roads and Jetties Act 1935 –

(a) is only bound to approve an application which does not materially increase the total amount of water coming into or under a State highway in any period of time and which provide for its discharge at a point or points accepted or reasonably required by the Minister; and

(b) may require as a condition of approval a covenant by the owner –

(i) to indemnify the Crown against any claim which may arise from an increase in the water flowing away from or under the State highway, or its rate of flow, by reason of the works approved; or

(ii) to pay for any specified works considered by that Minister necessary by reason of the works approved for clearing water from or under the State highway; or

(iii) to do both matters specified in subparagraphs (i) and (ii) .

(3)  If the council approves an application contrary to this section, its approval is effective in law and the council –

(a) is liable to the Crown to do anything which, if this section had been complied with, the owner could have been required to covenant to do; and

(b) is not punishable except upon indictment with the consent in writing of the Attorney-General.

85.   Refusal of application for subdivision

[Section 85 Amended by No. 44 of 1994, s. 106 ]The council may refuse to approve a plan of subdivision if it is of the opinion –

(a) that the roads will not suit the public convenience, or will not give satisfactory inter-communication to the inhabitants both of the subdivision and the municipal area in which it is; or

(b) that the drainage both of roads and of other land will not be satisfactorily carried off and disposed of; or

(ba) that the land is not suitable for an on-site effluent disposal system for all or specified kinds of effluent from each block; or

(c) that the site or layout will make unduly expensive the arrangements for supply of water and electricity, connection to drains and sewers and the construction or maintenance of streets; or

(d) that the layout should be altered to include or omit –

(i) blind roads; or

(ii) alleys or rights of way to give access to the rear of lots; or

(iii) public open space; or

(iv) littoral or riparian reserves of up to 30 metres in from the shore of the sea or the bank of a river, rivulet or lake; or

(v) private roads, ways or open spaces; or

(vi) where the ground on one side is higher than on the other, wider roads in order to give reasonable access to both sides; or

(vii) licences to embank highways under the Highways Act 1951 ; or

(viii) provision for widening or deviating ways on or adjoining land comprised in the subdivision; or

(ix) provision for the preservation of trees and shrubs; or

(e) that adjacent land of the owner, including land in which the owner has any estate or interest, ought to be included in the subdivision; or

(f) that one or more of the lots is by reason of its shape in relation to its size or its contours unsuitable for building on; or

(g) that one or more of the lots ought not to be sold because of –

(i) easements to which it is subject; or

(ii) party-wall easements; or

(iii) the state of a party-wall on its boundary.

86.   Security for payment

(1)  Before approving a plan of subdivision, the council may –

(a) require security for payments and the execution of works; and

(b) refuse to approve the application until such security is given.

(2)  The payments for which, and the works for the execution of which, security may be required are –

(a) if the land is in a water district, payment for the extension of the council's water main to the boundary of the land and the laying of mains and other pipes as are necessary to bring water to the boundary of each lot in accordance with the requirements or the by-laws of the council and to the satisfaction of its engineer; and

(b) if the land is in a sewerage district, other than a land drainage district or an industrial drainage district, payment for the extension of a common sewer of the system of the district by, to, or into the land as determined by the council so that all lots may have connecting drains and the laying and connection of drains from a place at the boundary of each lot to the common sewer in accordance with the by-laws of the council and to the satisfaction of its engineer; and

(c) if the land is not in an urban land drainage district, payment for a common stormwater drain by, from, or from within, the land as determined by the council so that all lots may have connecting drains and the concentrated natural water may be lawfully disposed of and for the laying and connection of drains from a place on the boundary of each lot to the common drain in accordance with the by-laws of the council and to the satisfaction of its engineer; and

(d) the works required for the discharge of the owner's obligations under section 10 of the Local Government (Highways) Act 1982 in respect of the highways opened or to be opened on the subdivision; and

(e) the making and draining of footways that are not part of a road and of private roads and similar footways serving 3 lots or more; and

(f) the filling in of ponds and gullies; and

(g) the piping of watercourses.

(3)  [Section 86 Subsection (3) amended by No. 62 of 1996, s. 3 and Sched. 1 ]The security which may be required is –

(a) a bond by the owner of an amount in excess of any possible demand to secure –

(i) the required payments to be made within 30 days of demand; and

(ii) the required works to be executed within the periods referred to in subsection (4) ; and

(b) a guarantee guaranteeing all money payable on the bond, including any amount the council's engineer certifies to have been expended by the council under subsection (6) by –

(i) a bank, building society or credit union; or

(ii) a guarantee, money-lending, insurance or trading corporation approved by the council.

(4)  The required works are to be executed –

(a) within 6 months of the completion of the water main, common sewer or common stormwater drain, in the case of subsection (2) (a) , (b) or (c) ; or

(b) within the time prescribed under section 11 (2) of the Local Government (Highways) Act 1982 in the case of subsection (2) (d) or (e) ; or

(c) within 6 months of the sealed plan taking effect, in the case of subsection (2) (f) or (g) ; or

(d) within such further period as the council may allow, in any other case.

(5)  The council and the owner, with the consent of any guarantor, may agree to modify their respective rights so that –

(a) the owner is to do works that the owner would otherwise have paid for; or

(b) the council is to do, and the owner is to pay for, works that the owner would otherwise have done.

(6)  If the owner fails to do works in accordance with a bond, the council may do them and recover its expenses, as certified by its engineer, as if the amount were payable under the bond.

Division 3 - Final plans

87.   Final plans and schedule of easements

(1)  On receipt of the council's approval of a plan of subdivision, the owner is to arrange for the preparation of a final plan by a registered surveyor in accordance with –

(a) the requirements approved by the Recorder of Titles; and

(b) any other requirement of a permit issued under the Land Use Planning and Approvals Act 1993 .

(2)  The owner is to attach a schedule of easements to the final plan which is to be signed –

(a) if there are any easements, profits a prendre or covenants set out, by any person who is, or persons who between them are, able to create the estates and interests that the purchasers of land comprised in the plan are to acquire; or

(b) if there are no easements, profits a prendre or covenants set out, by all persons having any registered estate or interest in the land comprised in the plan, or by the legal practitioner acting for those persons.

(3)  If a schedule of easements is signed by a person as mortgagee, it is taken to include the person's consent to the creation of those estates or interests.

(4)  The easements, profits a prendre and covenants set out in the schedule of easements are taken to be shown on the final plan.

88.   Lodgment of final plans

(1)  The owner is to lodge with the council –

(a) the final plan, together with the schedule of easements; and

(b) if the schedule of easements sets out any easements, profits a prendre or covenants, a nomination of a legal practitioner to act on behalf of the owner in carrying the final plan through to its taking effect; and

(c) if any lots on the plan are the result of survey work carried out under the Land Surveyors Act 1909 , a nomination of a registered surveyor to do what is required to have the plan take effect; and

(d) the amount of the fees payable to the council and, unless the plan is marked "Early Issue", the prescribed fees payable to the Recorder of Titles under the Land Titles Act 1980 .

(2)  If an owner has lodged a final plan under subsection (1) and the plan has been marked "Early Issue", that owner, within 7 days after lodging that plan or such extension of that period as the Recorder of Titles may allow, is to lodge with the Recorder of Titles –

(a) a copy of the final plan; and

(b) a copy of the schedule of easements; and

(c) the survey notes; and

(d) the balance plan; and

(e) the relevant certificate of title or general law deed; and

(f) the prescribed fee payable under the Land Titles Act 1980 ; and

(g) any other documents the Recorder may require for the purposes of that Act.

(3)  An owner may change the nomination of a legal practitioner or surveyor by notice in writing to the Recorder of Titles and the council.

89.   Approval of final plans by council

(1)  If satisfied that a final plan complies with this Part, the council is to –

(a) cause its seal to be affixed to the plan; and

(b) cause the sealed plan to be lodged in the office of the Recorder of Titles.

(2)  Where the council is not satisfied that a final plan marked "Early Issue" complies with this Part and accordingly declines to fix its seal to the plan, the council, within 7 days after declining, is to inform the Recorder of Titles accordingly.

(3)  The Recorder of Titles is to reject a final plan lodged under section 88 if –

(a) the Recorder of Titles has been informed under subsection (2) that the council has declined to seal the plan; or

(b) a year or such extension of that period as the Recorder may allow has expired since the plan was lodged.

(4)  [Section 89 Subsection (4) amended by No. 90 of 1995, s. 9 ]The Recorder of Titles is to return to the person who lodged a plan rejected under subsection (3) one half of the prescribed fee paid under section 88 (2) (f) .

(5)  On lodgment of a plan, the Recorder of Titles must notify the council and the owner that the plan requires to be amended as shown on a copy of the plan if satisfied that –

(a) the owner has not a sufficient title to dispose of all the land comprised in the plan; or

(b) the land comprised in the plan omits land of the owner which, as a separate parcel –

(i) has not the qualities of a minimum lot; or

(ii) if it has those qualities, is in part subject to a mortgage or encumbrance and that either the part so subject or the part not so subject has not the qualities of a minimum lot; or

(iii) that the land omitted comprises 2 parcels or more that may, without the approval of any plan by the council, lawfully be sold separately so as to create a block which would not have the qualities of a minimum lot; or

(c) the execution of the plan is inconsistent with the proper administration of the Land Titles Act 1980 or this Part; or

(d) the plan fails to assure to purchasers what the council intended them to have.

(6)  If a plan lodged with the Recorder of Titles comprises any land that is not under the Land Titles Act 1980 the Recorder of Titles is to –

(a) bring it under that Act; and

(b) for that purpose, is to as far as possible proceed as if an application to bring that land under the provisions of the Land Titles Act 1980 had been made under section 11 of that Act with all necessary consents by a person competent to make an application for that purpose.

(7)  If a parcel that is comprised in a plan is in one part subject to one encumbrance and in another part subject to another encumbrance, the Recorder of Titles must not accept the plan until one part has been freed from encumbrances and when the plan takes effect any encumbrance on the other part extends to the whole parcel.

90.   Determination of applicability of provisions

If an instrument is lodged for registration under the Land Titles Act 1980 and the Recorder of Titles is not sure whether a final plan should first have been lodged to authorize the dealing to be effected by the instrument, the Recorder may require the person lodging the instrument to produce a certificate of the council that the dealing is not in contravention of this Division.

91.   Corrections to final plans

(1)  The Recorder of Titles may correct any clerical, unimportant or unsubstantial error or supply any omission in a final plan unless the council or the owner objects.

(2)  Before making a correction, the Recorder of Titles is to give notice in writing to the council and the owner.

(3)  The council or owner may object to the making of any correction within 7 days of receiving a notice under subsection (2) .

92.   Amendments to final plans

(1)  If the Recorder of Titles under section 89 (5) requires an amendment to a final plan, the council –

(a) if it considers that the amendment should not be approved, is to withdraw the plan and return it to the owner; or

(b) in any other case, notify the Recorder and the owner that it does not oppose the amendment.

(2)  If an owner is notified under subsection (2) that the council does not oppose an amendment, the owner may –

(a) agree to the amendment; or

(b) request the council to withdraw the plan and the council is to comply with that request; or

(c) require the Recorder of Titles to specify in writing the grounds for the refusal to accept the plan without amendment and thereupon section 144 of the Land Titles Act 1980 applies as if the grounds of refusal were given under subsection (1) of that section .

(3)  If the owner agrees to an amendment under subsection (2) , the owner is to notify the council and the Recorder of Titles accordingly.

(4)  If an amendment is required, the council and the owner may put forward other proposals and the Recorder of Titles may amend or vary the requirement, or withdraw it and substitute another.

(5)  The Recorder may notify the owner and the council that the plan is affected and is to return the plan to the council if the Recorder of Titles requires –

(a) an amendment under section 89 (5) and the owner fails for 3 months to take any action under subsection (2) , (3) or (4) ; or

(b) data by the registered surveyor who prepared the plan to enable the plan to be checked mathematically and for boundary evidence and they are not so produced within 3 months of the Recorder's requisition.

(6)  Instead of amending a document, the person required to amend it may, and if required by the Recorder of Titles must, substitute for it a new document in the amended form.

93.   Cancellation of final plans

(1)  The council is to cancel its seal on a final plan if –

(a) the plan is withdrawn from the Recorder of Titles; or

(b) the plan is rejected by the Recorder of Titles.

(2)  The council is to return a plan cancelled under subsection (1) to the owner.

Division 4 - Sealed plans

94.   Taking effect of sealed plan

(1)  A final plan takes effect as a sealed plan when the Recorder of Titles signs and dates a memorandum on the plan that the plan is accepted –

(a) without requiring any amendment; or

(b) as a result of further discussion; or

(c) upon an order of the Supreme Court; or

(d) upon the making of an amendment agreed to by the owner and the council.

(2)  When a plan takes effect, the Recorder of Titles is to –

(a) bring under the provisions of the Land Titles Act 1980 any land comprised in the plan that is not under it; and

(b) deliver free to the owner, the surveyor and the council, one copy of the sealed plan as accepted; and

(c) create any folios the Recorder considers necessary.

(3)  Each copy of the sealed plan is to show the memorandum of acceptance.

(4)  When a plan that shows easements or other rights over or for the benefit of land which is not under the provisions of the Land Titles Act 1980 takes effect, the Recorder of Titles is to cause any entries to be made in the index kept under the Registration of Deeds Act 1935 the Recorder considers sufficient to give notice of the existence of those rights to persons searching title in the Registry.

(5)  When a plan has taken effect a person must not –

(a) obstruct the exercise by the owner or occupier of land of a right shown on the plan; or

(b) contravene a restriction on the use of land shown on the plan.

Penalty:  Fine not exceeding 10 penalty units.

(6)  It is not a defence in proceedings under subsection (5) to prove that the right or restriction was not created or has been extinguished but the court may adjourn the proceedings to enable the plan to be amended.

(7)  If an act complained of would be lawful under the plan as amended, the court is not to impose any penalty but may award costs to the council.

95.   Dedication of land

(1)  Any land which is shown on a sealed plan as a road, street, alley, lane, court, terrace, footpath or other kind of way is taken to be dedicated to, and accepted by, the public unless called "private" on the plan.

(2)  Subject to any enactment or by-law relating to the construction, opening and repair of ways on subdivisions and in respect of any way taken to be dedicated to and accepted by the public under subsection (1) and not a highway immediately before the sealed plan was sealed, the owner may –

(a) continue in occupation of the land subject to the way to the exclusion of the public until possession is given to a purchaser of a block comprised in the sealed plan and adjoining the way or including any part of it; and

(b) notwithstanding the rights of the public or of any purchaser of a block comprised in the sealed plan and adjoining the way –

(i) enter on the land subject to the way with or without engineers, surveyors, workers, machines, horses and vehicles and make the way in such manner as the owner thinks proper; and

(ii) enter in the same manner and repair the way as and when the owner thinks fit; and

(iii) exclude the public from all or any part of the way for the purpose of making or repair.

96.   Dedication as highway

(1)  If a sealed plan shows provision for widening or deviating a way on, or adjoining, land comprised in the plan, an obligation runs with that land to dedicate it as a highway if required to do so by the highway authority.

(2)  If the highway authority requires a dedication under subsection (1) , it must tender an amount in compensation.

(3)  If the owner does not accept the amount tendered, the owner must dedicate the land and is entitled to compensation as agreed between the owner and the highway authority.

(4)  If there is no agreement under subsection (3) , the compensation payable to the owner is to be determined as if it were a disputed claim for compensation under the Land Acquisition Act 1993 .

(5)  Compensation payable to the owner under subsection (4) is to be determined as at the date on which the plan was sealed.

97.   Acquisition of way by council

(1)  The owner of a subdivision is to convey or transfer a way shown on a sealed plan as "to be acquired by the highway authority" to the highway authority in fee simple when required in writing to do so by the highway authority.

(2)  If there is no agreement as to a fair price, the compensation payable to the owner is to be determined as a disputed claim for compensation under the Land Acquisition Act 1993 .

98.   Surrender of reserves to Crown

Any land comprised in a sealed plan which is described as a reserve is taken to be –

(a) surrendered to, and accepted by, the Crown; and

(b) subject to the Crown Lands Act 1976 , as if excepted and reserved under section 8 of that Act for –

(i) the purpose appearing on the plan; or

(ii) if no purpose appears on the plan, for any purpose the Minister administering the Crown Lands Act 1976 declares by order.

99.   Easements

(1)  When a sealed plan takes effect –

(a) the easements to be created in favour of the Crown or of any public or local authority constituted by or under any Act or appurtenant to a highway vest accordingly, except in the case of an easement to be appurtenant to a highway which vests upon the creation of the highway; and

(b) the other easements and the profits a prendre and covenants to be created come into being and continue as if created by the most effectual instruments made between proper parties and are not affected by –

(i) the unity of seisin of the lands having the burden and benefit of the easement or profit a prendre; or

(ii) identity of the parties to the covenant –

except that during such unity or identity they are in abeyance, to revive by force of this Part when it is broken or destroyed; and

(c) the Recorder of Titles may notify the existence of the easement, profit a prendre or covenant on the folio in respect of land –

(i) benefited by any easement or profit a prendre; or

(ii) burdened by any easement, profit a prendre or covenant.

(2)  An easement that would have been set out in the schedule of easements to a sealed plan is not to be implied from anything appearing in the plan or in a copy of the plan incorporated in another instrument.

(3)  If the schedule of easements to a sealed plan contains easements, profits a prendre and covenants which did not exist before the plan took effect and which affects land not comprised in the plan –

(a) the schedule is to be signed by the persons who between them are able to create them; and

(b) when the sealed plan takes effect those easements, profits a prendre and covenants are taken to have been created or made in the most effective manner by those persons.

(4)  Any drainage easement shown on a sealed plan for the benefit of a lot is taken to terminate at an outlet approved by the council.

100.   Action for partition

(1)  In any action for partition, the court –

(a) is not to order a partition which the parties could not make themselves under this Part; and

(b) may cause all necessary steps to be taken for the approval of a plan of subdivision for the purposes of a judgment or order for partition.

(2)  A judgment or an order for partition is not invalid by reason only of non-compliance with this section.

101.   Recovery of land

(1)  If the registered proprietor named in a qualified title under the Land Titles Act 1980 , suffers judgment for the recovery of the land by a person with a better title and in consequence a lot ceases to have the qualities of a minimum lot, the council may purchase or take the land recoverable or recovered under the judgment and re-establish the title of the registered proprietor as provided in subsection (2) .

(2)  The council is to –

(a) purchase or take the estate of the successful plaintiff and any other estate or interest required by the Recorder of Titles to be gotten in before the Recorder cancels the caution recorded on the qualified title; and

(b) lodge with the Recorder all muniments of title to the estate and interest so purchased or taken by it together with a request under its common seal that the Recorder re-establish the title of the registered proprietor.

(3)  The Recorder of Titles, if satisfied that the requests have been complied with, is to cancel the caution on the qualified title.

(4)  The council's costs and expenses of, and incidental to, the acquisition and the other matters referred to in subsection (2) are a charge on the whole of the lot concerned.

102.   Non-application of provisions to certain sales

The provisions of this Division do not apply to a subdivision of land only by sale and conveyance, transfer or release to the Crown, the Commonwealth or a statutory authority if acquisition by compulsory process is an alternative means of obtaining the land sold.

Division 5 - Amendments of sealed plans

103.   Amendment of sealed plans

(1)  When a plan has taken effect, it may be amended by the council –

(a) of its own motion –

(i) to do anything that the council could do under any other power subject to any conditions precedent to the exercise of the power relied on; or

(ii) to bring the plan into conformity with any change in the rights and duties of land owners made under a statutory power; or

(b) on the application of any person having an interest in land subject to the plan.

(2)  If a council acts on its own motion, it is to serve a notice in writing to all persons appearing by the registers under the Land Titles Act 1980 and the Registration of Deeds Act 1935 to have an estate or interest at law affected by the proposed amendment.

(3)  A person is to –

(a) make an application under subsection (1) by petition; and

(b) serve a copy of the petition on all persons appearing by the registers under the Land Titles Act 1980 and the Registration of Deeds Act 1935 to have an estate or interest at law affected by the proposed amendment.

(4)  Any person affected by the proposed amendment may ask to be heard in support or opposition.

(5)  If a notice is not given or a petition is not served as required by this section, subsequent proceedings are not void.

104.   Hearing in respect of amendment of plans

(1)  At the end of 28 days after the last notice is served or the last petition is served as required by section 103 (2) or (3) , the council –

(a) may, if no person has asked to be heard in opposition, cause the amendment to be made; or

(b) if a person has asked to be heard, is to appoint a day for hearing any petitioner and those persons who have asked to be heard.

(2)  A hearing is to be by the council or a council committee who may –

(a) hear persons who have asked to be heard after the period referred to in subsection (1) ; and

(b) obtain the assistance of barristers, solicitors, architects, engineers and surveyors.

(3)  On the conclusion of the hearing, the council may –

(a) cause the amendment to be made with or without modification; and

(b) require as a condition of so doing that any person who benefits the amendment is to make compensation in money or land to a person who is injured by it.

(4)  The council may, with the consent of all persons concerned, act as provided in subsection (3) .

(5)  The Recorder of Titles may call in and cancel or correct any certificate of title affected by amendments.

105.   Compensation in respect of amendments

(1)  Subject to subsection (2) , a person adversely affected by an amendment is entitled to compensation by the council if –

(a) having asked to be heard under section 103 (4) , the person gave the council notice of the claim at or before the hearing; or

(b) within 60 days of having been served a notice or petition under section 103 (2) or (3) , the person gave the council notice of the claim; or

(c) not having been given notice or served a petition, the person gave the council notice of the claim within 60 days of learning that he or she was affected by the amendment.

(2)  If compensation is payable under subsection (1) , the council may recover against the petitioner and any person heard or asking to be heard in support of the amendment to the extent to which they benefited by the amendment.

Division 6 - Miscellaneous provisions relating to plans

106.   Lack of frontage of highway

(1)  If –

(a) land proposed to be subdivided is separated from a highway by land of the highway authority; and

(b) the highway authority declares under seal that its land is to become part of the highway –

land which would, when the highway authority's land had become part of the highway, have a frontage on the highway is taken to have the same frontage as it would then have.

(2)  An objection may not be made that a way in the proposed subdivision does not communicate with the highway because the highway authority's land intervenes.

(3)  The highway authority, when the way is opened, is to provide the necessary communication with the highway.

(4)  For the purposes of this Part –

(a) a highway over water is a highway; and

(b) a road in respect of a lot shown in a plan to which this Part applies is a road if the lot has a frontage to the shore of the sea or to a navigable river or lake and cannot be reached from a city or town by a highway.

(5)  For the purposes of subsection (4) , land which has an easement in fee of unrestricted passage over land of the Crown to the shore of the sea is taken to have a frontage to the shore of the same width as the easement.

107.   Access orders

(1)  Where a block is to be created under this Part, the council may, before or when notifying its approval of the plan of subdivision, notify the owner that it proposes to make an order under this section as indicated in the notification before it seals the final plan.

(2)  If the council considers that work of a substantial nature is needed to provide access for vehicles from a highway onto the block, it may refuse to seal the final plan under which the block is created until the owner has carried out the work specified in the order within the specified period or given the council security for carrying out that work if called upon by it to do so.

(3)  If the owner fails to carry out the work within a reasonable time when called upon, the council may enter and do the work and enforce the security to recover its expenses as certified by its engineer.

(4)  If the work ordered by the council includes the construction of a carriage-way serving more blocks than one –

(a) the council may direct the owner to carry out part of the work on the soil of a highway; and

(b) the owners of all blocks having a right of way over any portion of the carriage-way are to keep in good repair, properly drained and clean and tidy –

(i) the carriage-way; and

(ii) any land subject to similar rights as the carriage-way and not part of a highway.

(5)  If the council is of the opinion that the owners are in default of compliance with subsection (4) (b) , the general manager may give notice to the owners of the blocks served by the carriage-way specifying –

(a) how the default is to be remedied; and

(b) requiring them to remedy the default accordingly within the period specified in the notice.

(6)  If the owners served with a notice fail to comply within the specified period, the council may remedy their default and apportion the cost among those owners or their successors in title in such proportions as it considers appropriate.

(7)  The amount apportioned under subsection (6) is to be paid to the council within 30 days of the demand and is recoverable from the person liable or his or her successor in title in any court of competent jurisdiction.

(8)  An amount apportioned under subsection (6) together with any interest payable is a charge on the block in respect of which it was apportioned from the day of apportionment.

108.   Road widening

(1)  If a council does not approve a plan for a subdivision because of any matter referred to in section 85 , a council, in respect of an existing highway, may obtain –

(a) a dedication of land for widening or diverting; or

(b) a licence to embank.

(2)  Subject to subsection (4) , when the sealed plan takes effect the owner is entitled to compensation as if the dedication or licence were an estate in land that had been acquired by compulsory process under the Land Acquisition Act 1993 .

(3)  The land dedicated or subject to the licence is to be valued as at the date of lodgment of the plan of subdivision.

(4)  Compensation is not payable for the dedication of land which lies within –

(a) 6 metres in a central urban building area; and

(b) 7·5 metres in an inner urban building area; and

(c) 9 metres elsewhere –

of the middle line of the highway of a parcel into which the land is subdivided and on which no building stands.

(5)  If the highway varies in width because in parts land has already been acquired or dedications made for the purpose of widening it, its middle line is to be determined as if no such acquisitions or dedications have been made.

Division 7 - Minimum and sub-minimum lots

109.   Minimum lots

(1)  Unless the relevant planning scheme or interim order provides otherwise, the minimum lot is to have –

(a) in a central urban building area –

(i) an area of not less than 370 square metres; and

(ii) a frontage to a road of not less than 12 metres; and

(iii) a width of not less than 12 metres to a depth of 15 metres; or

(b) in an inner urban building area –

(i) an area of not less than 460 square metres; and

(ii) a frontage to a road of not less than 15 metres; and

(iii) such boundaries that within them can be drawn a circle having a diameter of not less than 15 metres, and its centre not more than 15 metres from a road; or

(c) in an outer urban building area –

(i) an area of not less than 550 square metres; and

(ii) a frontage to a road of not less than 18 metres; and

(iii) such boundaries that within them can be drawn a circle having a diameter of not less than 18 metres, and its centre not more than 18 metres from a road; or

(d) in a country building area –

(i) an area of not less than 1 000 square metres; and

(ii) a frontage of 6 metres upon a road; or

(e) in a changing building area –

(i) an area of not less than 550 square metres; and

(ii) a frontage of 6 metres upon a road; and

(iii) such boundaries that within them can be drawn a circle having a diameter of not less than 18 metres; or

(f) in any building area, reasonable vehicular access from the carriage-way of a road to a boundary; or

(g) in an urban building area and in a changing building area, a site that is able, in the opinion of the council, to be efficiently and lawfully drained into the sea, or into a river, creek, rivulet, lake, swamp, marsh or pond or into a public channel, sewer or drain; and

(h) if subject to inundations, an area free from such inundations complying with the appropriate one of paragraphs (a) to (e) .

(2)  In applying subsections (1) and (3) to a lot which has a frontage on more than one road, not being an alley –

(a) if the 2 frontages do not meet, the appropriate provisions apply in respect of one such frontage; and

(b) if the 2 frontages meet –

(i) in a central urban building area, a country building area and a changing building area, that nominated by the owner is to be treated as the frontage and the other disregarded; and

(ii) in an inner urban building area, each frontage is to be not less than 16 metres; and

(iii) in an outer urban building area, each frontage is to be not less than 20 metres.

(3)  Unless the relevant planning scheme or interim order provides otherwise, a lot has the qualities of a minimum lot –

(a) if being within a zone in an urban building area prescribed by by-law for the erection of shops it –

(i) has an area of not less than 45 square metres if within a part of a central area prescribed by by-law for that purpose, or 60 square metres if within any other part of a central area, or 270 square metres if elsewhere; and

(ii) has a frontage to a street of not less than in a central area 4·5 metres and in an inner or outer area 9 metres; and

(iii) complies with subsection (1) (f) , (g) and (h) ; or

(b) if being in an inner or outer urban building area it –

(i) has a frontage to a road of not less than 6 metres; and

(ii) has the centre of the circle mentioned in subsection (1) (b) and (c) distant from that road not more than in an inner area 15 metres or in an outer area 18 metres; and

(iii) complies in all other respects with subsection (1) ; and

(iv) is approved by the council as equivalent to a minimum lot; or

(c) if being within the boundaries of the city of Hobart, it is approved by the council as equivalent to a minimum lot and –

(i) has an area of not less than 370 square metres and has a frontage of not less than 12 metres on a road; and

(ii) is one of not more than 2 lots each having an area of not less than 370 square metres and a frontage on a road of not less than 11 metres and created by subdivision of a block of land existing as such on 27 June 1940; and

(iii) in either case, complies with subsection (1) (f) , (g) and (h) ; or

(d) in the city of Launceston if –

(i) being in a central urban building area, it comprises an area of not less than 180 square metres with a frontage on a street repairable by the council of not less than 6 metres and a width of at least 6 metres throughout its depth and a depth of at least 21 metres; or

(ii) being in an inner urban building area, it comprises an area of not less than 370 square metres with a frontage on such a street of not less than 12 metres and a depth of not less than 24 metres, and maintains a width of not less than 12 metres for a distance of at least 15 metres from that street; or

(iii) being in an outer urban building area, it comprises an area of not less than 460 square metres and has a frontage on such a street of at least 15 metres and a depth of at least 27 metres and there is within the lot an open space within which can be described a circle having a diameter of 15 metres, or, being on the corner of 2 such streets, has a frontage on each of not less than 16 metres; or

(e) if, being in an urban or changing building area, it –

(i) has not the frontage or dimensions, or both, as required in subsection (1) but has the area therein required or being occupied by a dwelling has an area of not less than 370 square metres and a frontage of not less than 9 metres; and

(ii) it complies in all other respects with subsection (1) and is approved by the Panel given at the request of the council, as equivalent to a minimum lot; or

(f) if, being in a country building area, it –

(i) has not the requisite area but only an area not less than 460 square metres; and

(ii) it complies in all other respects with subsection (1) and is approved by the Panel given at the request of the council, as equivalent to a minimum lot; or

(g) if, being in any building area and not otherwise having the qualities of a minimum lot, provision has been made in a planning scheme approved for its existence or creation as a lot; or

(h) if, being in any building area and having all the qualities of a minimum lot except in respect of frontage it –

(i) has a frontage to a road of not less than 3·6 metres, over which frontage no other land has a right of way as its sole or principal means of access; and

(ii) is approved by the Panel given at the request of the council, as equivalent to a minimum lot; or

(i) if, being in any building area and having all the qualities of a minimum lot except in respect of frontage it –

(i) has access to a road by a right of way at least 3·6 metres wide over land not required as the sole or principal means of access to any other land and not required to give the lot, if any, of which it is part the qualities of a minimum lot; and

(ii) is approved by the Panel given at the request of the council, as equivalent to a minimum lot; or

(j) if, being in any building area and lying behind a block fronting a road and being in all respects a minimum lot if that block were a road it –

(i) has a private road at least 3·6 metres wide to the public road, which private road is not required as the sole or principal means of access to any other land; and

(ii) is approved by the Panel given at the request of the council, as equivalent to a minimum lot; or

(k) if, being on land occupied under the Mining Act 1929 , the Governor has declared that it is necessary or convenient for mining purposes that it should be equivalent to a minimum lot.

(4)  A minimum lot existing by virtue of subsection (3) (a) is to be used only as a place of business.

(5)  Approval required for a minimum lot to exist by virtue of subsection (3) may be conditional on use as a place of business.

(6)  If land under subsection (4) may be used only as a place of business the restriction on its use –

(a) is to be set out above the council's seal on the final plan of the subdivision; and

(b) is enforceable by the council as if –

(i) the council were owner of all the other lands in the municipal area and the tenants were natural persons holding of the council for life; and

(ii) the restriction were created by a covenant made between the council and the owner creating the lot so restricted and running with the land in equity.

(7)  For the purpose of this section a place of business means any place in which the business of selling, buying, hiring, exchanging, letting, repairing, making or providing any goods or services is carried on.

(8)  Notwithstanding this section, a planning scheme or interim order may make provision for the dimensions and qualities of a minimum lot.

110.   Adhesion orders

(1)  Except as provided in subsection (2) , the council may make an adhesion order if a block –

(a) has the qualities of a minimum lot; and

(b) comprises 2 parcels or more that may, without the approval of any plan by the council, lawfully be sold separately so as to create a block which –

(i) would not have the qualities of a minimum lot; and

(ii) is, or in the opinion of the council is likely to be, built on or bought for building.

(2)  Subsection (1) does not apply to a block the parcels in which –

(a) are the sites and grounds of buildings designed for separate occupation; or

(b) have at any time been owned separately by persons who did not then own adjoining land.

(3)  If an owner of a block referred to in subsection (1) seeks approval for building on that block which could be refused because a parcel in that block was owned by another person, the council after notifying the owner, may make an adhesion order if the approval is given.

(4)  An adhesion order is an order of the council that the parcels comprised in the block subject to the order are not to be dealt with so that they come into the possession of different persons for an estate of freehold at law or in equity or for a term at law or in equity of 3 years or more.

(5)  An adhesion order made under subsection (1) or (3) is to be –

(a) served by the council on all persons appearing from the records in the Registry of Deeds or the Land Titles Office to have a legal estate in, or power of sale over, the land subject to the order; and

(b) registered –

(i) under the Land Titles Act 1980 ; or

(ii) in the Registry of Deeds as if it were a judgment.

(6)  A contravention of subsection (5) (a) may give rise to an action for damages but does not alter the effect of the order.

(7)  If an adhesion order is made under subsection (1) or (3) , the Recorder of Titles is to –

(a) bring under the provisions of the Land Titles Act 1980 that part of the land subject to the order that is not under that Act; and

(b) for that purpose is to as far as possible proceed as if an application to bring that land under that Act had been made under section 11 of that Act with all necessary consents by a person competent to make an application for that purpose; and

(c) register one folio of the Register for all the land and record the adhesion order on the folio; and

(d) call in and cancel certificates of title to parts of the land.

(8)  Until land has been brought under Land Titles Act 1980 , the registration of an adhesion order in the Registry of Deeds operates to deprive of all effect any subsequent agreement or assurance except as provided in subsection (10) .

(9)  In creating a folio of the Register which is supported by a plan of any land, the Recorder of Titles is not to indicate on that plan the boundaries of the parcels which the land formerly comprised.

(10)  An adhesion order does not affect rights under an instrument registered before the adhesion order, even though by the exercise of a power of sale or right of purchase, or otherwise, the lands subject to the order may be separated in ownership.

(11)  The council may discharge or modify any adhesion order by an order registered under the Land Titles Act 1980 .

111.   Subdivision of sub-minimum lots

(1)  If an owner wishes to subdivide off land within a building area –

(a) one or more sub-minimum lots which are to be sold or given to one or more adjoining owners without leaving a sub-minimum lot; or

(b) one or more sub-minimum lots which are to be sold or given to one or more adjoining owners leaving a sub-minimum lot to be retained by the owner as part of the adjoining land; or

(c) one or more minimum lots leaving a sub-minimum lot to be retained as part of the adjoining land –

so that each sub-minimum lot and the land to which it is to be added will together form a minimum lot, the owner is to submit to the council a plan of the resulting minimum lot delineating the boundaries of the sub-minimum lot and the adjoining land to which the sub-minimum lot is to be added.

(2)  If 2 or more owners wish to subdivide off their land sub-minimum lots which upon sale or gift to the same purchaser or donee would together give that purchaser or donee a minimum lot, they are to submit to the council a plan of the minimum lot to result from those sales or gifts, delineating the boundaries of the sub-minimum lots which together form the minimum lot.

(3)  A plan under subsection (1) or (2) may include a subdivision, but if it does not, the provisions of Division 2 apply as nearly as possible to the plan as if it were a plan of subdivision.

(4)  For the purposes of subsection (1) , if adjoining land to be added to comprises –

(a) the whole of the land; or

(b) the untransferred balance of land in a Crown grant or folio of the Register under the Land Titles Act 1980 ; or

(c) is a lot on a previously approved plan –

that part of the plan which comprises that adjoining land may be compiled from plans lodged in the office of the Recorder of Titles or registered in the Registry of Deeds.

(5)  Subsection (4) does not prevent the Recorder of Titles from requiring further survey information relating to that adjoining land the Recorder thinks necessary for the proper administration of the Land Titles Act 1980 before notifying under section 113 (2) that the plan is available as mentioned in that section.

112.   Purposes for which plan approved

If the council approves a plan submitted under section 111 –

(a) the plan is to be dealt with, and has effect, as provided in Division 2 ; and

(b) the council is to state on the plan one of the following purposes for which the plan is approved:

(i) if the plan is submitted under section 111 (1) (a) or (b) for the purpose of enabling the approved lot to form a single parcel;

(ii) if the plan is submitted under section 111 (2) , for the purpose of enabling a purchaser or donee to acquire all the sub-minimum lots which together form the minimum lot shown on the plan;

(iii) if the plan is submitted under section 111 (1) (c) , under both section 111 (1) and (3) or under both section 111 (2) and (3) , firstly for the purpose of enabling the portions of the approved lot to form a single parcel or for enabling a purchaser or donee to acquire all the sub-minimum lots which together are to form the minimum lot, and secondly for the purpose of giving effect to the subdivision under Division 2 .

113.   Bringing land under Land Titles Act 1980

(1)  If a plan of subdivision approved by the council and lodged in the office of the Recorder of Titles includes any adjoining land to be added that is not under the provisions of the Land Titles Act 1980 , the Recorder is not to take any further action upon the plan until applications to bring the land under those provisions have been made under section 11 of that Act .

(2)  If a plan of subdivision is fit for acceptance and the Recorder of Titles is in a position to bring under the provisions of the Land Titles Act 1980 all the land comprised in the plan that is not already under the provisions of that Act, the Recorder is to notify the council and the owner that the plan is available for the purposes for which it is approved.

(3)  If a plan is approved for the purpose of section 111 (1) (c) –

(a) the Recorder of Titles is not to accept the plan until either the sub-minimum lot or the adjoining land is free from mortgages or encumbrances; and

(b) on acceptance of the plan, a mortgage or encumbrance on the one extends to the other.

(4)  If all the transfers necessary to achieve the purposes for which a plan is approved are not lodged within 3 years after the date of the notification under subsection (2) –

(a) the plan is void; and

(b) the Recorder of Titles is to cancel the plan and return it to the council; and

(c) the council is to cancel its seal on the plan.

114.   Achievement of purposes

(1)  After notification has been given under section 113 (2) , the purposes for which the plan is approved are to be achieved in the following manner only:

(a) any assurance that may be necessary to achieve those purposes is to be lodged with the Recorder of Titles so that a period of not more than one week elapses between the dates of lodgment of the first and last assurances;

(b) the Recorder of Titles must refuse to register any assurance that is lodged otherwise than in accordance with paragraph (a) ;

(c) an assurance is to be a memorandum of transfer as if the land assured were under the provisions of the Land Titles Act 1980 even though the land may not be under those provisions;

(d) on registration, the assurance is as valid as if it had been executed and lodged after the land assured had been brought under the provisions of the Land Titles Act 1980 ;

(e) subject to subsections (2) and (3) , if all the transfers necessary to achieve all the purposes for which the plan is to be approved have been lodged and are in order for registration, the Recorder of Titles is to –

(i) accept the plan; and

(ii) bring under the provisions of the Land Titles Act 1980 all the lands comprised in the plan that are not alreadyunder those provisions; and

(iii) register the transfers; and

(iv) create the folios of the Register for minimum lots that are necessary to achieve the purposes for which the plan was approved.

(2)  If a plan is approved for the purposes of adding one block to another or others –

(a) a transfer of the one to the owner of the other or others is not in order for registration until not more than one of the blocks that are to be added together to form one whole is subject to a mortgage or encumbrance; and

(b) on the registration of the transfer, a mortgage or encumbrance on one block extends to the other or others.

(3)  If the Recorder of Titles accepts a plan under subsection (1) (e) –

(a) a transfer of a sub-minimum lot that is required to be registered by that subsection may not be withdrawn from registration; and

(b) blocks that are to be added to one another to achieve the purposes for which the plan was approved are not to be dealt with as separate parcels except in accordance with a plan of subdivision (other than the plan approved under section 111 ) approved by the council.

(4)  If the Recorder of Titles creates a folio of the Register under subsection (1) (e) , the Recorder is not to indicate on the folio boundaries that previously divided the sub-minimum lots and other lands comprised in the folio.

115.   Exemption

(1)  The council may exempt a subdivision from the operation of this Part –

(a) if it is satisfied that all sub-minimum lots to be subdivided are intended to be added to adjoining lands which are used for grazing, pastoral, agricultural, horticultural or similar purposes; or

(b) if, in the opinion of the council, it is unlikely that a sub-minimum lot created by the subdivision would be purchased as the site for a dwelling.

(2)  If the council exempts a subdivision under subsection (1) , it is to certify the exemption on the plan prepared for the purpose of carrying out the subdivision.

Division 8 - Public open space

116.   Limitation on requirement for public open space

(1)  If the council –

(a) requires an owner to increase the area for public open space so that the value of the total area approved for open space in the final plan exceeds the value of the area provided for open space in the plan of subdivision; or

(b) having failed to approve a plan for subdivision on a ground that the layout should be altered to include or omit public open space, subsequently approves a fresh plan in which the value of the total area of land reserved for public open space exceeds the value of all such land in the original plan –

and the value of the area reserved for open space in the plan also exceeds the value of one-twentieth of the whole area comprised in the plan of subdivision, the council must purchase the excess as provided in this section.

(2)  The purchase price of the excess is a sum bearing the same ratio to the value of the total area approved in the final plan as the excess bears to that area.

(3)  If the owner and the council are unable to agree on the purchase price within 30 days of its demand, it is to be determined as if it were a disputed claim for compensation under the Land Acquisition Act 1993 .

(4)  The purchase price is due –

(a) after the final plan takes effect as provided; and

(b) upon demand by the owner accompanied by a conveyance of transfer executed by the owner of the total area mentioned in subsection (1) .

(5)  The purchase price bears interest at 5% a year from the day 2 months after that on which it is agreed upon or determined until payment.

(6)  Land is to be valued as at the date of lodgment of the plan of subdivision.

(7)  The council is required to purchase only so much of the excess land as is required for public open spaces on the basis that the excess is divided between the public open spaces and littoral or riparian reserves in the same proportion as the total area is divided between them.

(8)  The council is to pay a purchase price as if it were purchasing the whole excess and is entitled to be reimbursed by the Treasurer the difference between the purchase price paid by it and so much of the purchase price as is attributable to the land purchased.

(9)  If an amount is not agreed, the amount is to be determined as if it were a disputed claim for compensation under the Land Acquisition Act 1993 .

117.   Payment instead of increasing public open space

(1)  Instead of requiring an owner to increase the area for public open space, the council, before approving a plan of subdivision may require security for the payment of an amount calculated under subsection (2) .

(2)  The amount required to be paid is an amount not exceeding an amount which bears the same ratio to the value of the whole area comprised in the plan as one-twentieth of that area less any area provided for public open space in the final plan and any area created by the final plan of the littoral or riparian reserve bears to that whole area.

(3)  If the owner and the council do not agree on the amount to be secured, it is to be determined as a disputed claim for compensation under the Land Acquisition Act 1993 .

(4)  [Section 117 Subsection (4) amended by No. 62 of 1996, s. 3 and Sched. 1 ]The security that may be required is –

(a) a bond by the owner of an amount in excess of any possible demand to secure payment of the amount within 90 days after the demand is made after the final plan has taken effect; and

(b) a guarantee by a bank, building society or credit union, a guarantee, money-lending, insurance or trading corporation approved by the council guaranteeing all money payable on the bond.

(5)  The council is to receive an amount payable under this section on trust for the acquisition or improvement of land for public open space for the benefit of inhabitants of the municipal area.

(6)  [Section 117 Subsection (6) amended by No. 90 of 1995, s. 10 ]Any amount held, before the commencement of this section, by the council on trust for the acquisition of land for public open space is to be held on trust for the acquisition or improvement of land for public open space and applied in accordance with any prescribed requirements.

(7)  In respect of any amount paid to the council pursuant to section 473B of the Local Government Act 1962 before the commencement of this section –

(a) that amount was lawfully received by the council for the purposes of that section; and

(b) no action or legal proceedings may be continued or instituted against any person in respect of the receipt or holding by a council of that amount.

Division 9 - Miscellaneous matters

118.   Council schemes

(1)  Before the council disposes of lands in circumstances in which, if the disposition were that of a private person the plan would require approval under this Part, it is to prepare a plan of subdivision that it would approve if it were a private person's plan.

(2)  If a final plan based on a plan of subdivision may be approved by the council if lodged by a private person, the council is to prepare such a final plan and seal it.

(3)  The provisions of Division 2 apply to a plan sealed in accordance with subsection (2) as nearly as possible as if it were the plan of a private person.

(4)  A plan sealed under this section is taken to have been approved and sealed under Division 2 .

119.   Approval of stratum plans

(1)  A person must not lodge a stratum plan for registration under section 75F of the Conveyancing and Law of Property Act 1884 unless the subdivision shown on the plan has been approved by the council.

(2)  A person may obtain the council's approval by lodging the plan with the general manager and paying the prescribed fee.

(3)  The council must give its approval unless –

(a) the division into flats as defined in Part XIA of the Conveyancing and Law of Property Act 1884 involves a subdivision; or

(b) the council has the power and intent to require the demolition or alteration of the building comprised in the plan under an order, notice or requisition made or given before or after the making of the application; or

(c) the building is so built that the walls, floors and ceilings dividing the flats or any of them do not comply with the Building Regulations and give substantially less protection against fire; or

(d) the council is of opinion that the subdivision or any part of it ought to be carried out under Division 2 .

(4)  If the council approves the subdivision, the general manager is to –

(a) endorse on the plan a certificate of the council's approval and return it to the person who presented it for approval; and

(b) issue a building certificate under Part 2 in respect of the flats on the plan.

(5)  If the council does not approve the subdivision, the general manager is to return the plan to the person who presented it for approval, retaining any fee paid.

120.   Savings of contracts

(1)  Nothing in this Part renders any contract for the disposal of land or instrument of, or affecting, title illegal or void.

(2)  Every contract for the legal subdivision of land which requires the approval of the council under this Part is taken to have been made subject to the giving of that approval.

121.   Application to the Crown

(1)  This Part binds the Crown as provided in this section.

(2)  Land may not be disposed of by or on behalf of the Crown unless, if the disposition were that of a private person –

(a) it would not require an approval of a plan under this Part; or

(b) if it does require such an approval, it is in accordance with a plan which ought reasonably to be approved.

(3)  Any town land under section 5 of the Crown Lands Act 1976 may not be disposed of unless the Director-General of Lands is of opinion –

(a) that the disposition is in accordance with a plan that if it were the subdivision of a private person it ought reasonably to be approved under this Part; or

(b) that in the case of a disposition in accordance with a plan prepared before the commencement of this Part, so much of the land in it has already been disposed of that it is unreasonable to alter the plan.

122.   Part prevails

The provisions of this Part prevail over the provisions of this or any other Act or any regulation, rule or by-law made under any Act relating to subdivisions.

PART 4 - Cemeteries and Crematoria

Division 1 - General provisions

123.   Interpretation of Part 4

In this Part, responsible Minister means the Minister responsible for administering the Public Health Act 1962 .

124.   Non-application of Part 4

This Part does not apply to any cemetery under the control of the Southern Regional Cemetery Trust except as provided in the Southern Regional Cemetery Act 1981 .

125.   Council to control public cemeteries

The council has the control and management of every public cemetery within its municipal area and holds the lands in trust for the purposes of a public cemetery.

126.   Public cemeteries

(1)  The Minister, with the consent of the council and any trustees of a cemetery, may by order, declare that cemetery to be a public cemetery.

(2)  Upon the publication in the Gazette of a proclamation under this section –

(a) any books, records, money and other property held by the trustees of the cemetery vest in the council; and

(b) the obligations and liabilities of the trustees are imposed on the council as if they had been incurred by the council.

127.   Duties and powers of council

(1)  The council is to keep every cemetery under its control in good order and keep proper records of all burials in the cemetery.

(2)  The council may –

(a) with the approval of the responsible Minister, establish new public cemeteries; and

(b) improve, embellish and enlarge a cemetery under its control; and

(c) close any cemetery or part of a cemetery under its control to further burials except under existing exclusive rights of burial.

128.   Application of revenue of cemetery

(1)  The council is to expend any revenue received in respect of any cemetery under its control –

(a) in defraying the cost of its establishment or acquisition, including interest and such amount as it thinks proper for its own administrative expenses; and

(b) in the maintenance and improvement of the cemetery; and

(c) in the burial of poor persons.

(2)  Any fees received by the council in respect of future maintenance of vaults, graves, monuments and tombstones are to form a single fund and be dealt with by the council as capital money as if it were a trustee.

129.   Religious ceremonies and original distribution

The council, by any by-law, act, matter or thing, is not to interfere directly or indirectly with –

(a) the performance of any religious ceremony in the burial of the dead according to the usage of the denomination to which the minister performing the ceremony belongs; or

(b) the original distribution of the cemetery made or intended to be made by the deed of grant or other conveyance to and amongst separate and distinct religious denominations.

130.   Free access to ministers of religion

The minister of any denomination for which any portion of a cemetery under the control of the council is specially set apart –

(a) has free access to that portion at all times as the minister thinks fit; and

(b) may exercise spiritual functions in connection with the burial of the dead without any hindrance or disturbance of the council or any other person.

131.   Scale of fees

(1)  The council, by notice published in the Gazette, may prescribe a scale of fees or revoke, amend or vary a scale of fees payable for –

(a) the provision of graves; and

(b) exclusive rights of burial; and

(c) permission to make or dig a vault or grave; and

(d) permission to set up or lay a monument or tombstone; and

(e) maintenance of graves, vaults, monuments and tombstones; and

(f) exhumations.

(2)  A public notice under subsection (1) is not a statutory rule within the meaning of the Rules Publication Act 1953 .

132.   Monuments

(1)  The council may permit any vault or grave to be made or dug, and any monument or tombstone to be erected or placed, in any part of the cemetery as it thinks proper upon payment of the appropriate fee.

(2)  The council may determine and fix the position of any monument or tombstone to be erected according to its description, size and character having regard to the general plan for ornamenting the cemetery in an appropriate manner.

(3)  Any person making or digging a vault or grave or erecting and placing a monument or tombstone in the cemetery is entitled, on payment of the appropriate fee to have that vault, grave, monument or tombstone maintained according to the terms of the permission for the sole and separate use of –

(a) that person and his or her representatives forever; or

(b) if an exclusive right to bury has been granted under section 136 , the holder of the right.

133.   New cemetery to be approved

A new cemetery or burial-ground is not to be laid out or used for burial without the approval of the responsible Minister and the council.

134.   Burial without charge

The council may permit any poor person to be buried in a cemetery under its control free of any charge.

135.   Lease of land for crematorium

(1)  The council, with the consent of the Minister, may grant a lease of any portion of a cemetery for the purpose of the erection and maintenance of a crematorium in accordance with the Cremation Act 1934 .

(2)  A lease is subject to such terms and conditions as the Minister may approve.

Division 2 - Exclusive rights of burial

136.   Burial rights

(1)  The council may grant an exclusive right of burial in fee or for 20 years in a specified portion of a public cemetery to any person paying the prescribed fee.

(2)  An exclusive right granted in fee –

(a) entitles the following persons to bury a body in the portion subject to the right –

(i) the holder of the exclusive right; and

(ii) the personal representatives of a deceased holder of the exclusive right; and

(b) is assignable by deed or will and otherwise descends to the heir according to the common law.

(3)  An exclusive right granted for 20 years –

(a) entitles the grantee, the executors, administrators or assigns to bury a body in the portion subject to the right; and

(b) may, if a burial has taken place in that portion, be renewed by the holder for further periods on payment of the prescribed fee; and

(c) is assignable by deed or will.

(4)  On the expiry without renewal of an exclusive right for 20 years, all rights in any monument or tombstone on the portion subject to the right cease but, subject to this Part, the council is to leave any monument or tombstone in its place.

137.   Private vaults protected

Before any body is permitted to be buried in any vault, brick grave or in any place of burial under an exclusive right of burial as a family or private burial place, the council may require satisfactory evidence that the holder of the exclusive right of burial consented, or would not object to, the burial taking place.

138.   Disposal of portion

(1)  If the council disposes of a portion of a cemetery in which a person has an exclusive right of burial, it is to grant that person, free of charge, an exclusive right of burial in another portion of the cemetery or in another cemetery as that person and the council may agree.

(2)  If there is no agreement, the matter is to be settled by arbitration under the Commercial Arbitration Act 1986 as if it were on a submission under that Act.

(3)  The council is to pay the costs of any arbitration pursuant to subsection (2) .

Division 3 - Maintenance and use of cemeteries

139.   Power of council to remove monuments

If any monument, cenotaph, tablet or tombstone or other erection has been erected or built contrary to the by-laws applicable to the cemetery or the terms and conditions upon which permission to erect or construct it was granted, the council may take down and remove it.

140.   Excessive maintenance

(1)  If the revenue of a cemetery is insufficient for the council to keep the cemetery in proper order and carry out its duty of maintenance under section 132 (3) , it may, in respect of a burying place –

(a) if there is a tombstone showing who is buried there, remove kerbs, railings and other structures, slabs, shrubs, marble chips and other adornments and cover the place with grass leaving only the tombstone; or

(b) if there is a monument other than a tombstone –

(i) treat the monument as if it were a tombstone and act in accordance with paragraph (a) ; or

(ii) remove the monument and re-erect it in another part of the cemetery, with or without any kerbs, railings or other accessories and cover the place with grass, having first set a stone showing who was buried there and where the former monument is to be seen.

(2)  If a vault, tombstone or monument bears no legible indication of whose grave is there or if the superstructure of a vault, tombstone or monument is decayed or broken beyond repair, the council may remove all that prevents the covering of the place with grass.

(3)  A council is to set up again any tombstone that has fallen.

141.   Disuse of public cemeteries

(1)  If, in a public cemetery or a part of a public cemetery for 30 years or more no burials have been done or burials have been done with no vault, tombstone or monument other than a flat slab flush with the ground, the council may exercise the powers conferred by section 140 as if –

(a) that part were a cemetery; and

(b) the revenue of the cemetery or part were insufficient as mentioned in that section.

(2)  In order to exercise its powers under subsection (1) , the council may free itself of an exclusive right of burial granted in fee –

(a) by agreement with the holder to give a similar right to another place and move to that place any human remains, coffin, vault, tombstone, monument or other thing in or on the land; or

(b) if there is no agreement, by applying to a magistrate for an order that the right be extinguished on compensation by the council to the holder and reasonable provision in respect of past and future burials under the right.

(3)  For the purpose of subsection (2) , the Public Trustee may represent the holder of an exclusive right if it appears that the council, after diligent inquiry, cannot find the holder.

142.   Unused or vacant cemeteries

(1)  Any land held for a cemetery in which no burials have taken place or from which all human remains have been removed may, subject to section 138 and to any Act relating to a religious body, be dealt with in the ordinary course of commerce.

(2)  This section applies whether the land is a separate parcel or part of a parcel elsewhere in which human remains lie.

143.   Disposal of land not required

The council may dispose of any portion of a cemetery which is not required for burial, even though there are exclusive rights of burial in that portion.

Division 4 - Closure of cemeteries and burial grounds

144.   Closure of cemeteries

(1)  If it appears to the council that any existing cemetery or burial-ground is from its position or condition prejudicial to health, the council, with the approval of the responsible Minister, may give notice to the trustees or other persons in whom or under whose charge the cemetery or burial-ground is vested that it is to be closed on the date specified in the notice, being a date at least 6 months after the date of the notice.

(2)  Any 20 electors of the municipal area residing within a radius of one kilometre of any cemetery or burial-ground outside a city or any 40 electors residing within a radius of 500 metres of any cemetery or burial-ground within a city, may petition the council that the cemetery or burial-ground be closed on the ground that it is prejudicial to health.

(3)  On receipt of a petition, the council, if satisfied that the cemetery or burial-ground is prejudicial to health, may give notice to the trustees or other persons in whom or under whose charge the cemetery or burial-ground is vested, that it is to be closed on the date specified in the notice, being a date at least 6 months after the date of the notice.

145.   Preservation of exclusive burial rights

If there is an exclusive right of burial in any vault or enclosure in any cemetery or burial-ground closed under this Part, the responsible Minister may grant permission for the exercise of that right after the cemetery or burial-ground has been closed during any time, and subject to any conditions and restrictions, as that Minister thinks fit.

146.   Closure of burial-grounds when public cemetery established

(1)  The Minister, upon being satisfied that –

(a) for the protection of the public health, a burial-ground within a distance of 8 kilometres from a cemetery under the control of the council that is in use or ready for use should be closed; and

(b) the cemetery provides sufficient means of burial; and

(c) the by-laws of the council sufficiently provide for permitting the burial of poor persons free of charge –

may, by order, declare that on and after the date specified in the order, being a date at least 3 months after the date of the order, the burial-ground is to be closed.

(2)  An order under this section may be made in respect of –

(a) all burial-grounds, without specifying them, within a specified distance; or

(b) all burial-grounds within a specified distance other than specified ones.

Division 5 - Taking over disused burial-grounds

147.   Disused burial-grounds

(1)  The council may take over any disused burial-ground in accordance with the provisions of this Division.

(2)  This Division –

(a) prevails over any enactment relating to particular religious bodies or burial-grounds; and

(b) does not apply to any piece of land on which a church, chapel or similar building stands.

148.   Notice of proposal

(1)  Before taking over a disused burial-ground, the council is to make a resolution that it is expedient to take over the burial-ground.

(2)  A council is to cause a notice of the resolution –

(a) to be advertised in a newspaper on 3 different days; and

(b) to be given tosuch of the owners of the burial-ground as, after diligent inquiry, are known to the council.

(3)  A notice is to state –

(a) the name and location of the burial-ground being taken over by the council; and

(b) that objections may be lodged with the council.

(4)  For the purposes of this section, the bishop or similar authority mentioned in section 150 (1) (b) (ii) and the curate or similar minister of religion of the parish or district, are taken to be among the owners of the burial-ground.

149.   Objections

(1)  A person may lodge an objection against the council taking over a disused burial-ground within a period of 3 months after the last advertisement is published or the last notice is given under section 148 .

(2)  The council may extend the period referred to in subsection (1) if –

(a) the governing or legislating authority for the whole State of a religious body is an assembly which does not have its next session before the expiry of that period; and

(b) the president or clerk of the assembly request the council to extend the period.

(3)  If, within the period referred to in this section, no objection is lodged, the council may execute a deed poll in accordance with section 152 .

150.   Effect of objections

(1)  If, before the expiry of the period referred to in section 149 , an objection is lodged, the council is to take no further action if –

(a) in its opinion the burial-ground is well-kept; or

(b) the objection was lodged –

(i) by the governing or legislating authority for the whole State of the religious body concerned; or

(ii) in the case of a burial-ground wholly or partly consecrated according to the rites of some religious body, by the bishop or similar authority of the diocese or similar district in which the burial-ground lies.

(2)  If, before the expiry of the period referred to in section 149 , an objection is lodged by any person other than a person referred to in subsection (1) , the council may execute a deed poll in accordance with section 152 if, in its opinion, the burial-ground is ill-kept and unlikely to be well-kept.

151.   Approval by authority or bishop

(1)  The authority or the bishop or similar authority mentioned in section 150 (1) (b) , instead of objecting, may require that if the burial-ground is taken over, a grave is not to be interfered with except with their prior approval.

(2)  If a requirement is made under subsection (1) , the council must not interfere with any grave in the burial-ground except with the required approval.

152.   Form and effect of deed poll

A deed poll –

(a) is to declare that the council has taken over a burial-ground; and

(b) operates to vest the burial-ground in the council in fee simple freed and discharged from all trusts but subject to a condition in favour of the Crown that the burial-ground is not to be dealt with otherwise as is provided in sections 154 to 157 ; and

(c) operates as a transfer by the registered proprietor of the burial-ground to the council in the case of land under the Land Titles Act 1980 .

153.   Certificate of title

For the purposes of registering a deed poll and in the case of land under the Land Titles Act 1980 , the council is entitled to –

(a) the production of the certificate of title of the burial-ground; or

(b) if the certificate of title cannot be found, to the issue of a new certificate of title in the name of the registered proprietor.

154.   Council to deal with burial-ground

(1)  The council must –

(a) maintain a burial-ground it has taken over in proper order as a burial-ground; or

(b) lay it out as a park or garden for use as a place of quiet recreation by the inhabitants of the municipal area.

(2)  In the exercise of the powers under subsection (1) (b) , the council may –

(a) construct roads, avenues and walks in or through the land; and

(b) erect and construct on the land any ornamental and other buildings and structures, and provide any seats, shelters and conveniences for the use of persons, as the council thinks fit; and

(c) enclose, drain, turf, level and light the whole or any part of the land; and

(d) plant in the land or in any portion any trees, shrubs and plants the council thinks fit; and

(e) subject to sections 151 , 155 and 157 –

(i) demolish or remove any graves, monuments, vaults and tombstones erected in any part of the land; and

(ii) exhume and remove from the land any human remains which are buried there, and bury those remains, either in the land or elsewhere; and

(f) build on or under any part of the land any ornamental structures or vaults the council thinks fit for the reception of any human remains which are not removed from the land for burial elsewhere; and

(g) generally execute works and do all acts and things necessary for the laying out of the land as a park or garden or for carrying out or giving effect to the provisions of sections 155 , 156 and 158 .

(3)  If a council takes over a burial-ground under section 147 , all rights to bury and to carry out maintenance of vaults, graves, monuments and tombstones cease.

155.   Conditions for the removal of human remains

(1)  Before proceeding under section 154 with the demolition of any graves, monuments, vaults or tombstones erected on the land or with the exhumation and removal of any human remains buried, the council is to –

(a) prepare a statement settingout –

(i) the names and dates appearing on the graves, monuments, vaults or tombstones to be removed; and

(ii) any other particulars necessary for the identification of those graves, monuments, vaults or tombstones and of the human remains to which they relate, so far as the particulars are ascertainable from the records of the burial-ground or the inscriptions on the stones and monuments; and

(b) make the statement available for inspection by any person free of charge; and

(c) publish at any intervals over a period of 12 months in any newspaper the council determines a notice of the intention to demolish or remove the graves, monuments, vaults or tombstones or to exhume and remove the human remains.

(2)  Any notice published under subsection (1) (c) is to specify the hours within which the statement prepared in accordance with subsection (1) (a) may be inspected.

156.   Land for reburial to be made available

At any time within 12 months after it has taken over a disused burial-ground, the council, at the request of any direct descendant or near relative of any deceased person whose remains are buried in the burial-ground or whose name appears on any grave, monument, vault or tombstone, is to make available free of charge at a public cemetery any lands necessary for –

(a) the burial in that public cemetery of those human remains; or

(b) the re-erection in that public cemetery of the grave, monument, vault or tombstone.

Division 6 - Exhumation and reburial

157.   Exhumation

(1)  The Minister, by warrant, may authorize the removal of a human body or of human remains from any place of burial on any conditions and precautions specified in the warrant.

(2)  The council before beginning an exhumation must –

(a) have the written approval of the responsible Minister under this Part; and

(b) comply with any requirements of that Minister or any person supervising the work on that Minister's behalf in the course of the exhumation, removal and reburial.

(3)  A person must not remove a human body or human remains –

(a) without a warrant; or

(b) otherwise than in accordance with any conditions and precautions specified in the warrant; or

(c) without complying with any requirements under subsection (2) .

Penalty:  Fine not exceeding 10 penalty units.

158.   Council may exhume and rebury human remains

(1)  Subject to sections 151 and 157 , after the expiration of 12 months after a disused burial-ground has been taken over by the council –

(a) all rights of any person in or to any human remains buried in the burial-ground or any grave, monument, vault or tombstone are vested in the council; and

(b) the council, at its own expense, may demolish and remove any grave, monument, vault or tombstone, and reverently exhume and bury (either in another portion of the burial-ground or in a public cemetery in or near the municipal area) any human remains.

(2)  The council is to cause to be recorded in a register to be kept for the purpose full details of any exhumation and burial of any human remains under subsection (1) .

(3)  The register is to be –

(a) maintained by the council in perpetuity; and

(b) available at all reasonable times for inspection by any person free of charge.

Division 7 - Parks and gardens

159.   Burial-ground laid out as park or garden

(1)  Any disused burial-ground which is laid out as a park or garden in accordance with section 154 , is to be available for the inhabitants of the municipal area as a place of quiet recreation only.

(2)  The council must not allow any competitive games or sports to be conducted on any ground laid out as a park or garden under subsection (1) .

160.   Closed cemetery may become park or garden

(1)  If a cemetery has been closed under section 127 (2) (c) , the council may lay it out as a park or garden for use as a place of quiet recreation by the inhabitants of the municipal area.

(2)  The council is to give public notice of a resolution to exercise the power conferred by subsection (1) .

(3)  The provisions of sections 156 , 158 and 159 apply as if the resolution to exercise the power were for the taking over of a disused burial-ground.

(4)  If the cemetery or a portion of the cemetery has been lawfully consecrated according to the rites of some religious body –

(a) the council, before taking action under subsection (1) , is to offer the cemetery or consecrated portion as a gift to that religious body; and

(b) if the gift is not accepted by that body, its bishop or similar authority of the diocese or district in which the cemetery lies may require that the graves are not to be interfered with except with their prior approval.

PART 5 - Public Health

Division 1 - General

161.   Interpretation of Part 5

In this Part –

health officer includes –

(a) a health officer as defined in the Public Health Act 1962 ; and

(b) the municipal medical officer of health; and

(c) a municipal health surveyor;

health surveyor means a person appointed as such under section 163 ;

medical officer of health includes –

(a) a medical officer of health appointed under the Public Health Act 1962 ; and

(b) the medical officer of health appointed under section 163 ;

responsible Minister means the Minister responsible for administering the Public Health Act 1962 .

162.   Powers over wharves

Notwithstanding anything contained in section 19 of the Marine Act 1976 –

(a) by-laws for securing the health of the inhabitants of a municipal area extend to, and may be enforced in respect of; and

(b) all powers and duties of a council in a municipal area that tend to secure the health of its inhabitants extend to –

wharves defined under that section that are in or adjacent to the municipal area.

Division 2 - Appointment of officers

163.   Appointment of certain officers

(1)  The general manager may appoint a qualified and competent person as –

(a) a medical officer of health; and

(b) a health surveyor.

(2)  The general manager, if required by the responsible Minister, must appoint –

(a) a medical officer of health; and

(b) a health surveyor.

(3)  If the general manager fails to appoint a person within 3 months after being required to do so under subsection (2) , the responsible Minister may make the required appointment on any terms that Minister considers appropriate.

(4)  The council is to pay the salary of a person appointed by the responsible Minister under subsection (3) .

164.   Qualifications

(1)  The responsible Minister may determine the qualifications of persons to be appointed under section 163 –

(a) generally; or

(b) for a particular appointment.

(2)  A person appointed as medical officer of health is to be a registered medical practitioner.

(3)  The responsible Minister is to notify in the Gazette any qualifications determined under this section.

165.   Duties and directions

(1)  The general manager is to ensure that the medical officer of health and the health surveyor carry out any duties the responsible Minister may, in writing, direct the council to carry out.

(2)  The medical officer of health is to submit a report to the responsible Minister in relation to the administration of this Part by 1 October in each year.

(3)  The medical officer of health may give any directions and instructions to the health surveyor as that medical officer considers necessary to administer any laws relating to public health.

(4)  The health surveyor must obey any directions and instructions given under subsection (3) .

166.   Removal, dismissal and suspension of officers

(1)  The general manager, without the written approval of the responsible Minister, must not –

(a) remove from office or dismiss a medical officer of health or health surveyor; or

(b) alter a term of their appointment.

(2)  The responsible Minister, by order in writing, may remove from office or dismiss a medical officer of health or health surveyor appointed by the general manager if any of them –

(a) commits misconduct or fails to carry out an order of that Minister so as to interfere with or prevent the efficient administration of, any laws relating to public health; and

(b) the general manager refuses to remove from office or dismiss the person.

(3)  A person removed from office or dismissed under subsection (2) is not eligible for re-appointment without the written approval of the responsible Minister.

(4)  The general manager, with the written approval of the responsible Minister, may suspend a medical officer of health or health surveyor for a period of 14 days or any longer period the Minister approves.

(5)  A person whose suspension under subsection (4) does not end in removal from office or dismissal is entitled to be paid any salary accruing during the period of suspension.

Division 3 - Removal of refuse and cleansing

167.   

[Section 167 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

168.   

[Section 168 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

169.   

[Section 169 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

170.   

[Section 170 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

171.   

[Section 171 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

Division 4 - Sanitation provisions

172.   Sanitation facilities

(1)  Every dwelling is to have sanitation facilities inside or outside the dwelling as are required for new houses.

(2)  A person must not let or permit to be let or be inhabited a dwelling that does not comply with subsection (1) .

Penalty:  Fine not exceeding 2 penalty units.

173.   

[Section 173 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

174.   

[Section 174 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

175.   

[Section 175 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

Division 5 - Unhealthy buildings

176.   Unhealthy buildings

(1)  The council may make a closure order upon –

(a) the certificate of a health surveyor that an occupied or inhabited building is so unhealthy that no one can safely occupy or inhabit it; and

(b) a report of the building surveyor, an architect or experienced builder on the state of the building and whether or how and at what cost it can be put in reasonable order.

(2)  A closure order may –

(a) require the owner of a building within a specified period of not less than 21 days, to do such works as the council considers necessary to put the building in tenantable repair; and

(b) forbid human occupation or habitation of the building after a date specified in the order.

(3)  The council is to cause the order to be served on the owner and the occupier of the building and a duplicate is to be affixed to some conspicuous part of the building.

(4)  In determining whether a building can be put in tenantable repair at a reasonable cost, regard is to be had to –

(a) the estimated cost of what is ordered or proposed to be done to the building; and

(b) the value which it is estimated that the building would have if that were done.

(5)  If within the period specified in the closure order or within any extension of the time allowed by the council the owner does not complete the specified works, the council is to cause them to be completed at the owner's expense.

(6)  If the council is satisfied that the building cannot be put in tenantable repair at a reasonable cost, it may –

(a) forbid human occupation or habitation; or

(b) at the owner's expense, cause the building to be demolished.

(7)  The council may revoke a closure order –

(a) upon the certificate of the building surveyor or architect that the works required for the order have been properly carried out; or

(b) upon the certificate of a health surveyor the building has become fit and safe for human occupation or habitation.

(8)  A person must not, contrary to the closure order and during the currency of an order –

(a) let for human occupation or habitation a building subject to the order; or

(b) occupy or inhabit the building; or

(c) knowingly allow human occupation or habitation of the building.

Penalty:  Fine not exceeding 5 penalty units.

(9)  For the purposes of this section, a building which has been occupied or inhabited and which may again be occupied or inhabited is taken to be occupied or inhabited.

177.   Unhealthy ruins may be pulled down

(1)  If it appears to the council on the report of a health surveyor that people resort to a deserted building, a hovel, ruin or cave and that the place is in consequence injurious or dangerous to health, the council may order the owner to pull down or close it up.

(2)  If the owner does not, within 60 days, comply with the order, the council may, at the owner's expense, do the work ordered to be done.

178.   Defects in unhealthy buildings

(1)  A building used, or intended to be used, or capable of being used, for human habitation or occupation suffers a defect and is unhealthy if it –

(a) is so damp, or is in such a state of disrepair, as to be offensive or injurious or dangerous to health; or

(b) is not provided with adequate means of permanent ventilation and is therefore injurious or dangerous to health; or

(c) is not provided with adequate means of natural lighting and is therefore likely to become prejudicial to the health of the inmates or a danger to life or limb; or

(d) has roof guttering, spouting, drainpipes or drainage (including storm-water drainage) which is seriously defective or insufficient; or

(e) being a dwelling, has not an adequate and wholesome water supply and satisfactory bathing facilities; or

(f) is so foul or dirty or so made or decayed that it cannot be cleaned properly by normal means; or

(g) has an unfenced opening or drop, unfenced machinery or is part ill-built, broken, decayed or dilapidated, which is likely to cause danger to life or limb.

(2)  The council or a health surveyor may, by notice served on the person by whose act, default or sufferance the defect arises or continues, or, if that person cannot be ascertained or found, the occupier or owner of the premises, require the person to rectify the defect in the manner and within the period specified in the notice.

(3)  A notice under subsection (1) is to be served upon the owner of the building if –

(a) the defect arises from any want or defect of the components of the building; or

(b) the building is unoccupied.

(4)  A person on whom a notice under subsection (2) is served must comply with it and may do whatever is necessary for that purpose.

(5)  A person must not fail, without reasonable excuse, to comply with the notice within the period specified in it or within any further time that the council with the consent of the responsible Minister allows.

Penalty:  Fine not exceeding 5 penalty units and a daily fine not exceeding one penalty unit.

(6)  If a person fails to comply with a notice, the council, at that person's expense, may cause the required work to be done.

179.   Unhealthy animal houses and sale-yards

(1)  If a health surveyor is of the opinion that any building or premises used for the keeping of any animal is in a condition or situation such as to render that use prejudicial to health, the health surveyor, by notice in writing, may require any person to discontinue that use from a date specified in the notice.

(2)  If a health surveyor is of the opinion that a sale-yard is in a condition or situation prejudicial to health, the health surveyor, by notice in writing, may require –

(a) any person to discontinue the use of the sale-yard from a date specified in the notice; or

(b) the occupier to cleanse the sale-yard to the officer's satisfaction within a time specified in the notice.

(3)  A person must not fail to comply with a notice under this section.

Penalty:  Fine not exceeding 5 penalty units or a daily fine not exceeding one penalty unit.

(4)  If a person fails to comply with a notice under subsection (2) (b) the council may enter and cleanse the building, premises or sale-yard at that person's expense.

Division 6 - Nuisances

180.   Nuisances

The following matters are nuisances for the purposes of this Division:

(a) any premises, building, structure, growth, hole, heap, fixture or movable property in such a state as to be prejudicial to health or a nuisance;

(b) any animal so kept as to be prejudicial to health or a nuisance;

(c) any accumulation or deposit which is prejudicial to health or a nuisance;

(d) any waste or stagnant water in, under or near a dwelling-house;

(e) any water or drainage from premises flowing or dropping over or onto the footway of a road;

(f) any premises infested with rats, mice, bugs, fleas, lice, cockroaches or other vermin;

(g) any dwelling so overcrowded as to be prejudicial to the health of the inmates;

(h) any dust or effluvia caused by any trade, business, manufacture or process and prejudicial to the health of, or a nuisance to, the inhabitants of the neighbourhood;

(i) any accumulation of unsightly articles or rubbish or a largely unsightly article;

(j) any place of trade, business or manufacture which –

(i) is so structurally defective or is so dilapidated as to be unsafe or dangerous, or injurious to the health of the inmates; or

(ii) is so unclean as to be prejudicial to health or a nuisance; or

(iii) is not, with regard to the inmates, sufficiently supplied with fresh water; or

(iv) is not so ventilated as to render harmless, as far as practicable, all gases, fumes, dust or other impurities generated in the course of the work carried on there; or

(v) is so overcrowded as to be prejudicial to the health of the persons employed there; or

(vi) is insufficiently supplied with natural light; or

(vii) is not provided with the required sanitation facilities;

(k) any place of assembly within the meaning of the Public Health Act 1962 which –

(i) is not safely or properly constructed; or

(ii) has not proper ventilation or drainage; or

(iii) has not proper sanitation facilities; or

(iv) has not proper or sufficient means of ingress and egress; or

(v) has not sufficient or properly attended appliances for the prevention and extinction of fire.

(l) any other matter declared by order by the responsible Minister to be a nuisance under this section.

181.   Inspection of municipal area

(1)  A council is to cause its municipal area to be inspected from time to time to detect the existence of any nuisances referred to in section 180 .

(2)  A council must deal with a nuisance referred to in section 180 as if it were a nuisance under the Local Government Act 1993 .

Division 7 - Offensive trades

182.   Offensive trades

(1)  For the purposes of this Division, offensive trade means –

(a) any of the following trades, businesses or manufacture:

(i) blood or offal boiling or treating, bone boiling or crushing;

(ii) candle making when tallow is rendered on the premises;

(iii) chemical or acid making;

(iv) extraction of fish oils, fat extraction and fat melting;

(v) fish gutting and cleaning and poultry gutting and cleaning;

(vi) flock making and glue making;

(vii) gut scraping and gut spinning;

(viii) manure manufacturing;

(ix) rag dealing and skin storing;

(x) slaughtering;

(xi) poultry keeping for purposes of trade and swine keeping;

(xii) soap boiling, tallow melting where refined tallow is not used;

(xiii) tanning;

(xiv) knackery;

(xv) wool scouring except at mills where wool is manufactured into material; and

(b) any other trade, business or manufacture –

(i) the Minister declares by order to be an offensive trade; or

(ii) the council, with the approval of the Minister determines to be an offensive trade.

(2)  Any trade, business or manufacture referred to in subsection (1) is not an offensive trade if it is carried on at licensed premises under the Meat Hygiene Act 1985 .

183.   

[Section 183 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

184.   

[Section 184 Repealed by No. 44 of 1994, s. 106 ].  .  .  .  .  .  .  .  

Division 8 - Places of public entertainment

185.   Interpretation and application of Division

(1)  In this Division –

licence means a licence issued under this Division;

operating a place of public entertainment includes conducting the entertainment or managing the place where the entertainment is held;

place of public entertainment includes any place used for the entertainment of the public.

(2)  This Division does not apply to places which are licensed premises under the Liquor and Accommodation Act 1990 .

186.   Licences

(1)  A person must not –

(a) operate, or use a place as, a place of public entertainment without a licence; or

(b) lease or rent out a place for use as a place of public entertainment without a licence.

(2)  A person may apply to a council to operate a place of public entertainment.

(3)  An application is to be –

(a) made in writing; and

(b) lodged with the general manager of the council; and

(c) accompanied by the prescribed fee.

187.   Grant or refusal of licence

(1)  A council may –

(a) grant an application under section 186 , with or without any conditions, for a specific event or for general purposes; or

(b) refuse to grant such an application.

(2)  A council may only grant an application if the council has considered the matters specified in subsection (3) .

(3)  Before granting an application, a council is to consider the following matters:

(a) the maintenance of peace and good order;

(b) the prevention of noise, smell, pollution or other nuisances;

(c) the effect of traffic on highways;

(d) whether the place of public entertainment is capable of being operated in the prescribed manner.

(4)  If a council grants an application, it is to issue a licence endorsed with any conditions imposed by the council.

(5)  If a council refuses to grant an application, it must notify the applicant of the grounds of its refusal.

188.   Expiry of licence

A licence remains in force for whichever of the following periods is the lesser:

(a) the period specified in the licence;

(b) a period of 12 months from the date of issue of the licence.

189.   Renewal of licence

(1)  An annual licence may be renewed on payment of the prescribed fee.

(2)  The renewal of a licence may be subject to any conditions.

(3)  A licence may only be renewed if the council has considered the matters referred to in section 187 (3) .

190.   Revocation of licence

A council may revoke a licence if –

(a) a condition of the licence has not been complied with; or

(b) in respect of the place, the licence holder is convicted for –

(i) a nuisance; or

(ii) a contravention of the Public Health Act 1962 .

191.   Appeals

A person may appeal to a magistrate against –

(a) the refusal to grant an application for a licence; or

(b) a condition of a licence; or

(c) the revocation of a licence.

192.   Overcrowding

(1)  A person must not admit or allow to be admitted into a place of public entertainment a number of persons that exceeds the total number of persons that, as a condition of a licence, may be admitted to that place.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A council may cause the doors of a place of public entertainment to be closed whenever –

(a) there are sufficient persons to occupy the place completely; or

(b) the total number of persons admitted to the place reaches the number of persons that, as a condition of a licence, may be admitted.

193.   Register

(1)  The general manager of a council is to keep a register stating full details of –

(a) all applications for licences under this Division; and

(b) all licences issued, renewed or revoked under this Division; and

(c) the names of licence holders; and

(d) the places to which the licences apply; and

(e) the date of issue and duration of licences; and

(f) the conditions of the licences; and

(g) the revocation of licences.

(2)  The general manager is to make the register available for public inspection at any time during normal business hours.

194.   Onus of proof and evidence

(1)  In any proceedings under this Division, the onus is on the defendant to prove –

(a) that a licence is in force in respect of a place of public entertainment; or

(b) that a place is, or is not, a place of public entertainment; or

(c) that a condition of the licence was complied with; or

(d) that an approval under section 57 of the Public Health Act 1962 in respect of a place of public entertainment has not been withdrawn.

(2)  An averment in a complaint that a place was operating or being used as a place of public entertainment without a licence is evidence of that fact in the absence of proof to the contrary.

Division 9 - Miscellaneous matters

195.   Polluted wells

(1)  A council, by notice served on the occupier, may direct that any well or other source of domestic water-supply which is certified by a health officer to be so polluted or unwholesome as to be unfit for human consumption –

(a) is to be closed; and

(b) the contents are not to be used for human consumption.

(2)  A person must not knowingly use or cause to be used a well or other source of water-supply contrary to subsection (1) .

Penalty:  Fine not exceeding 5 penalty units.

(3)  A council, with the approval of the Minister, may revoke a notice under subsection (1) .

196.   Cellars

(1)  A council, by notice in writing, may require the owner or occupier of a dwelling which has a cellar, within a specified period –

(a) to cause the cellar to be paved, concreted or asphalted in a manner directed by and to the satisfaction of the building surveyor; and

(b) if water leaks into the cellar and there is no drain for its discharge, to construct in the cellar a well for gathering the water in a manner directed by and to the satisfaction of the building surveyor; and

(c) to empty the well at regular intervals not exceeding 24 hours.

(2)  A person must not fail to comply with a notice under subsection (1) .

Penalty:  Fine not exceeding 5 penalty units and a daily fine not exceeding one penalty unit.

197.   Burial or removal of body to morgue

(1)  A medical officer of health may order a body to be buried or to be removed to the nearest morgue if –

(a) the body is dead because of any infectious disease and is lying in a dwelling in which persons live or sleep; or

(b) whatever the cause of death, the body is in such a state as to be dangerous to health.

(2)  [Section 197 Subsection (2) amended by No. 74 of 1995, sched. 1 ]Upon the certificate of a registered medical practitioner of the existence of the facts mentioned in subsection (1) , a magistrate may make an order as provided by that subsection.

(3)  If an order under this section directs the burial of the body or its removal to a morgue and the body is not buried or removed as ordered, the council is to cause the body to be buried or removed to a morgue, whichever course is the more convenient.

PART 6 - Water supply

Division 1 - Water districts

198.   Water district, source of supply and restricted supply water district

(1)  A council, or 2 or more councils situated so as to be capable of taking advantage of some common water system or catchment area, may petition the Governor in respect of any one or more of the following:

(a) that land within specified limits and within the boundaries of the municipal area of the council or councils be constituted a water district;

(b) that a place outside the Hobart Regional Water District be declared to be the source of supply for a water district;

(c) that land be declared as a restricted supply water district.

(2)  A petition –

(a) may only be presented in furtherance of a scheme approved by the Rivers and Water Supply Commission; and

(b) is to be forwarded to the Minister.

(3)  The Minister, before submitting the proclamation to the Governor, is to –

(a) submit a draft of the proclamation to –

(i) the Rivers and Water Supply Commission; and

(ii) the Hobart Regional Water Board or the North West Regional Water Authority, if the case requires; and

(b) take into account any comments with respect to the draft proclamation that may be made by that Commission or that Board or Authority.

(4)  The Minister is to cause the petition to be published in the Gazette and at least once in a newspaper.

(5)  At any time 21 days or more after publication of the petition, the Governor, by proclamation, may declare –

(a) land to be a water district, define its limits and name it; and

(b) any place outside the Hobart Regional Water District to be a source of supply for the water district; and

(c) land to be a restricted supply water district and name it.

(6)  A proclamation under subsection (5) (b) may only be made with the consent of the council of the municipal area in which the proposed source of supply is situated.

199.   Waterworks

The council which has the control and management of a water district may –

(a) construct, lay and install the waterworks; and

(b) maintain the waterworks and all works, engines, buildings, pipes and other connected accessories required for the supply of water to that district.

200.   Source of supply for water district

Any lake or stream outside the Hobart regional water district but within a water district may be declared the source of supply for that water district by the council by public notice.

201.   Restricted supply water district

(1)  If land is declared a restricted supply water district in a proclamation under section 198 (5) (c) , the words "restricted supply" are to be included in its name.

(2)  A restricted supply water district may be defined by its limits or as that part of a defined piece of land that lies above a specified height.

(3)  In a restricted supply water district, the water need not be constantly laid on under pressure.

(4)  Any part of an existing water district to which water is not supplied, with the approval of the Rivers and Water Supply Commission, may be declared a restricted supply water district.

202.   Irrigation undertakings

(1)  An irrigation water district may be created under Division 4 of Part III of the Water Act 1957 .

(2)  The following provisions apply to and in connection with the scheme of an irrigation water district as if it were a scheme of a water district:

(a) sections 47 and 48 of the Water Act 1957 ;

(b) Divisions 1 and 2 of this Part;

(c) any provision of the Local Government Act 1993 relating to a construction rate.

(3)  Part VIII of the Waterworks Clauses Act 1952 does not apply to the scheme of an irrigation water district.

203.   Application of Waterworks Clauses Act 1952

(1)  The Waterworks Clauses Act 1952 applies to waterworks established or operating under this Part, except Part VIII and so far as it is excluded or modified under this section.

(2)  The Governor, on the recommendation of the Rivers and Water Supply Commission and on the application of the Council, may by order, exclude or modify the application of any provision of Part III (other than sections 30 , 31 and 32 ) or of Part IV of the Waterworks Clauses Act 1952 .

Division 2 - .  .  .  .  .  .  .  .  

[Division 2 of Part 6 Repealed by No. 8 of 1995, s. 24 ]

204.   

[Section 204 Repealed by No. 8 of 1995, s. 24 ].  .  .  .  .  .  .  .  

205.   

[Section 205 Repealed by No. 8 of 1995, s. 24 ].  .  .  .  .  .  .  .  

206.   

[Section 206 Repealed by No. 8 of 1995, s. 24 ].  .  .  .  .  .  .  .  

207.   

[Section 207 Repealed by No. 8 of 1995, s. 24 ].  .  .  .  .  .  .  .  

Division 3 - Cost of extension of water mains

208.   Interpretation of Division 3

In this Division –

main includes a branch pipe, service pipe and a fitting considered necessary for the supply of water by a prescribed council;

prescribed council means a council prescribed by the Minister by order for the purposes of this Division.

209.   Cost of extension of mains

If a prescribed council proposes to extend a main to serve any land in a water district, the council is to determine the manner of payment for the cost of the extension.

210.   Liability to pay for extension of mains

(1)  The cost of an extension of a main is, if the prescribed council so resolves, payable in the first instance –

(a) wholly by the council; or

(b) partly by the council and partly by the owners of lands to be served by the extension, in such proportion as the council determines; or

(c) wholly by those owners.

(2)  If the cost of an extension of a main is payable by the prescribed council in the first instance, the cost, in accordance with the resolution, may be payable ultimately wholly or partly by the owners of lands benefited by the extension as provided in section 213 .

(3)  In determining the manner of payment for the purposes of subsection (1) , the prescribed council –

(a) if there are 2 or more owners of land, must determine the total amount to be paid by each owner (whether in the first instance or ultimately); and

(a) if the full benefit to the land to be served by the extension of a main is not received immediately, may determine whether to impose on the owner or owners only a liability in the first instance, only an ultimate liability or both of those liabilities.

(4)  A determination made under subsection (3) (a) is to be in proportion to the benefits to each piece of land expected from the extension of a main and, if a piece of land may lawfully be subdivided into building blocks, the prescribed council is to have regard to –

(a) the maximum number of blocks into which the land could reasonably be subdivided, having regard to its position and physical characteristics, and which could be served by the extension; and

(b) the time when a subdivision is likely to take place.

(5)  If the prescribed council has determined that the cost of an extension of a main is to be paid wholly or partly by an owner of land to be served or benefited by the extension, it is to give the owner 30 days' notice of the liability, stating –

(a) whether the liability is in the first instance, or ultimate or partly one and partly the other; and

(b) whether the liability is for the whole cost or a proportion of the cost specified in the notice; and

(c) if the liability is partly in the first instance and partly ultimate, the amounts of those respective liabilities; and

(d) if more than one owner is liable, the amount of the council's liability, that of the owners as a whole and the proportion that the amount of the individual liability of the particular owner bears to the amount of the liability of the owners as a whole; and

(e) the amount claimed, which may be –

(i) a specific amount based on the average cost of laying new mains within the relevant water district during the preceding 12 months or any other period the council thinks fit; or

(ii) an amount to be notified on the completion of the extension, so long as that amount is a specified proportion of an amount certified by an engineer as the total cost of the extension, including an amount for preliminary and any administrative expenses determined by the engineer.

211.   Objections

(1)  An owner of land who receives a notice under section 210 may, within 30 days or such further time as the prescribed council may allow, object by notice in writing delivered to the council to –

(a) the proportion of the cost to be borne by the owner on the ground that it is excessive or unreasonable; or

(b) liability in the first instance on the ground that, if there is also an ultimate liability, the proportion between them is unreasonable or, if there is not also an ultimate liability, it is unjust to that owner not so to postpone part of the liability; or

(c) any amount claimed.

(2)  On receipt of an objection under subsection (1) , the prescribed council, in default of agreement with the owner as to the liability, is to –

(a) accept and give effect to the objection by –

(i) withdrawing the notice and any other notices in respect of the extension of the main to which the objection relates; and

(ii) making a fresh determination; and

(iii) giving fresh notice; or

(b) refer the objection to a court of summary jurisdiction having jurisdiction over the land concerned.

(3)  A court of summary jurisdiction, constituted by a magistrate sitting alone, on hearing an objection under subsection (1) that is referred to it under subsection (2) , may –

(a) make an order quashing the notice or directing that it have effect either without amendment or as amended in the manner specified in the order; and

(b) make such further orders, including orders as to costs, as the court thinks fit.

(4)  An order under subsection (3) is final and no defence which might have been raised by way of objection under this section is admissible in proceedings by the prescribed council for the recovery of an amount owing under this Division.

212.   Recovery of amounts payable

(1)  On the expiration of a notice or notices given under section 210 , the amount claimed in the notice or in each notice becomes a charge on the land to which the notice relates and recoverable, subject to this Division, as if it were rates or charges under the Local Government Act 1993 .

(2)  If an owner of land objects under section 211 , the operation of subsection (1) is suspended until proceedings on the objection are determined.

(3)  If an engineer certifies that an extension of a main to which a notice under section 210 relates has been laid, the prescribed council may serve a notice on an owner of land liable to pay an amount under this Division in respect of that extension stating –

(a) the amount of the liability; and

(b) if the owner is liable in the first instance, requiring the owner to pay that amount within 30 days.

(4)  On default of payment as required by subsection (3) , the amount payable may be recovered as a debt due to the council in a court of competent jurisdiction.

213.   Amounts payable by way of ultimate liability

(1)  If under section 210 an owner of land has been notified of an ultimate liability, that liability is postponed in accordance with this section.

(2)  If, at any time after notification of an ultimate liability under this Division, the prescribed council resolves that the benefit in respect of which the liability was created has been, or is about to be, wholly or partially realized and that by reason of that benefit payment of the liability should be presently made, the council is to notify the owner, requiring the owner to pay the amount of that liability within 90 days or such further time as may be specified in the notice.

(3)  On the expiration of a notice under subsection (2) and on default of payment as required by that subsection –

(a) the amount of the liability may be recovered as a debt due to the council in a court of competent jurisdiction; and

(b) the charge on the land under section 212 becomes enforceable.

214.   Payment by instalments

(1)  The prescribed council may agree in writing with an owner of land required to pay an amount under section 212 or 213 to accept payment –

(a) by 40 quarterly instalments; or

(b) if the amount payable is less than $500, by 20 quarterly instalments.

(2)  The amount payable or any portion of that amount as remains unpaid bears interest at a rate not exceeding a rate fixed by the Treasurer for the purposes of this section.

(3)  The first quarterly instalment under any agreement is payable within one month after the execution of the agreement and subsequent instalments are payable on the first days of January, April, July and October in each year.

(4)  An owner paying by instalments may pay to the council at any time any one or more instalments before the due date of payment and interest on any instalment paid ceases from the date of the payment.

(5)  If an owner fails to pay the amount of any instalment under this section within one month after it has been demanded, the whole or portion of the amount so demanded and remaining unpaid, together with all unpaid interest, becomes payable to the prescribed council.

Division 4 - Cities of Hobart and Launceston

215.   Interpretation of Division 4

In this Division, the Councils means the Hobart City Council and the Launceston City Council.

216.   Waterworks

(1)  The Councils may continue to construct and maintain waterworks and supply water –

(a) to land in the city of Hobart and Launceston, which for the purpose of this Part are water districts; and

(b) for the other purposes of this Part.

(2)  The Councils may charge for water supplied in accordance with a scale of charges as determined by each Council.

(3)  Charges made under this section in respect of land –

(a) are payable by the person by whom rates and charges in respect of that land are payable; and

(b) are enforceable in the same manner as rates and charges under the Local Government Act 1993 .

217.   Supply of water

(1)  The Launceston City Council may enter into agreements with the Rivers and Water Supply Commission for obtaining water from and supplying water to the Commission's waterworks that are subject to the West Tamar Water Act 1960 and the North Esk Regional Water Act 1960 .

(2)  In accordance with section 26 of the Waterworks Clauses Act 1952 , the Launceston City Council may enter into agreements with the owners or occupiers of lands outside the city of Launceston for the supply of water to their lands.

(3)  Section 59 of the Waterworks Clauses Act 1952 applies to any amount due to the council under an agreement entered into under subsection (2) as if the amount were water rates or charges.

(4)  The Launceston City Council may continue to take water from the St Patrick's River for the purposes of this Part.

218.   Cost of work by Launceston City Council

(1)  If the Launceston City Council resolves to lay a new main or to extend an existing main, it is –

(a) to specify in its resolution the blocks of land which are to be benefited by the carrying out of the work, and upon the carrying out of the work those blocks for all purposes are taken to be benefited and served by the work; and

(b) to determine in accordance with subsection (2) an amount of money to be paid by the owners of each of those blocks and thereupon that amount is a charge on the block; and

(c) to serve a notice on each of the owners of those blocks of the amount payable in respect of the land, and thereupon each of the owners is liable on demand to pay that amount.

(2)  The Launceston City Council, in determining the amount referred to in subsection (1) is to have regard to the average cost of a block of carrying out the work of that kind within the city during the preceding 12 months or during such other period as it thinks just.

(3)  The cost referred to in subsection ( 2 ) –

(a) includes overhead charges and compensation payable under section 16 of the Waterworks Clauses Act 1952 , but excludes any cost the Launceston City Council attributes to the laying or extending of a main larger than normal for the land to be served; and

(b) may not exceed two-thirds of the average cost of a block.

(4)  The Launceston City Council, in respect of a particular work to be done, may determine an amount exceeding two-thirds of the average cost of a block if the estimated cost of carrying out the work is more than one and a half times the average cost.

(5)  If any land to be served by work done is capable of subdivision, the amount determined is payable in respect of each of the maximum number of lots into which that land could reasonably be subdivided and which could beserved by that work.

(6)  The Launceston City Council may include the cost of branches, service pipes and fittings in determining the cost of work.

(7)  This section applies in place of sections 21 and 22 of the Waterworks Clauses Act 1952 .

219.   Application of Waterworks Clauses Act 1952 to Hobart City Council

(1)  The Waterworks Clauses Act 1952 applies in respect of the Hobart City Council's waterworks, except Part VIII and so far as it is excluded or modified by this section.

(2)  The Governor, on the recommendation of the Rivers and Water Supply Commission and on the application of the Hobart City Council, may by order exclude or modify the application of any provision of Part III (other than sections 30 , 31 and 32 ) or of Part IV of the Waterworks Clauses Act 1952 .

(3)  The Hobart City Council may enter and execute works on the lands described in Schedule 7 to the Local Government Act 1962 .

220.   Connection for domestic supply

(1)  If under section 19 of the Waterworks Clauses Act 1952 , an occupier demands a supply of water for domestic purposes, the occupier is to pay to the Hobart City Council in advance the prescribed fee for providing, laying and fixing a communication pipe with all its necessary fittings.

(2)  This section modifies the operation of section 38 of the Waterworks Clauses Act 1952 .

221.   Restriction on use of water

(1)  In addition to its power under sections 30 and 31 of the Waterworks Clauses Act 1952 , the Hobart City Council by notice published in a daily newspaper circulating in the municipal area may –

(a) restrict the hours during which water may be used generally or for specified purposes; and

(b) prohibit or regulate the use of water for specified purposes; and

(c) allow such exemptions and exceptions as it may think fit.

(2)  A person must not use water in contravention of the notice.

Penalty:  Fine not exceeding 10 penalty units.

(3)  The general manager may alone take action under this section on behalf of the Hobart City Council if given a general authority to do so by the Hobart City Council.

222.   Gas pipes

(1)  For the purposes of ascertaining whether the water supplied by the Councils is fouled by the gas of any person making or supplying gas, each Council may –

(a) examine the pipes and works of the person making or supplying gas; and

(b) dig up the ground belonging to that person and also any other ground.

(2)  Before proceeding to dig and examine, the Councils are to give 24 hours' notice in writing to the person making or supplying gas of the time at which such digging and examination is intended to take place.

(3)  If upon such examination it appears that the water has been fouled by gas of that person, the cost of the digging, examination and repair of the place disturbed in the examination is to be paid by that person.

(4)  If in the examination it appears that the water has not been fouled by the gas of that person, the councils are to pay the cost of the examination and repair and also make good to that person any injury which may be occasioned to those works by its examination.

(5)  The amount of the costs of examinations and repair and any injury done to the council or any injury occasioned to the person so supplying gas is, in case of dispute, recoverable in any court of competent jurisdiction.

223.   Outer boundaries

(1)  The Launceston City Council is to furnish to an owner or occupier at a point on the boundary a sufficient supply of water for domestic purposes in and about that building if the building is on land which has an outer boundary within 15 metres of any main or other pipe of the Council which is capable of being supplied with water from that main or pipe.

(2)  The cost of providing, laying down, affixing and maintaining service pipes and other necessary and proper appliances and apparatus is to be borne by the owner or occupier.

(3)  The cost of maintaining the service pipes from the main or other pipe of the Launceston City Council to an outer boundary is to be borne by the Council.

(4)  If water is supplied for other than domestic purposes the costs are to be borne by the owner or occupier of the land supplied, except as otherwise agreed with the Launceston City Council.

(5)  This section applies in place of sections 19 and 38 of the Waterworks Clauses Act 1952 .

224.   Hospitals entitled to a supply of water

(1)  Every hospital, asylum, child health centre or other building used exclusively for the charitable purposes for the relief of aged and sick persons is entitled to receive from the Hobart City Council free of charge a reasonable supply of water as may be required for the use of that building.

(2)  The supply of water free of charge is subject to all the other provisions of this Part relating to the supply of water by the Hobart City Council.

PART 7 - Long Service Leave and Employees Assurance Scheme

Division 1 - Long Service Leave

225.   Interpretation of Division

In this Part, employee means any person employed in any capacity by a council.

226.   Non-application of Part

(1)  Subject to subsection (2) , this Part does not apply to employees employed by the Hobart City Council and the Launceston City Council.

(2)  The Minister, byorder and at the request of the Hobart City Council or the Launceston City Council, may declare that this Part applies to employees employed by the Hobart City Council or the Launceston City Council.

227.   Entitlement to long service leave

(1)  An employee who completes at least 10 years' of continuous employment as an employee of one or more councils is entitled to be granted a period of long service leave calculated in accordance with this Part.

(2)  A period of long service leave is a period of –

(a) 90 days for the first 15 years of employment completed before 1 July 1969; and

(b) 90 days for each 10 years of employment completed after that date.

(3)  Any period of long service leave granted to an employee consists of the appropriate number of consecutive days, inclusive of any Saturdays, Sundays or public holidays occurring during the period.

(4)  If an employee becomes entitled to long service leave under this section, the council by notice in writing, may direct the employee to commence the leave within 6 months after the date of the notice.

(5)  If the employee fails or refuses to comply with the notice under subsection (4) , the employee is taken to have forfeited all rights and privileges under this section up to the date of the notice.

228.   Length of employment

(1)  For the purposes of this Part, the length of employment is to be calculated from the commencement of continuous service as an employee of one or more councils, and includes –

(a) any period of employment in a temporary capacity on probation; and

(b) any period of absence on leave, with or without pay; and

(c) any period of absence on leave for the purpose of serving as a member of any of Australia's defence forces.

(2)  If any employee is granted a period of long service leave, whether with or without pay, for any period of or exceeding 90 days, that period is not included as part of the period of employment for the purpose of calculating the long service leave, but that leave is not to be taken as breaking the continuity of employment.

(3)  If an employee has held any permanent office in another council, and has accepted an office or position in a council directly from the other office, the length of employment is to be calculated from the date on which the employee was permanently appointed to the other office.

(4)  Any long service leave granted to an employee referred to in subsection (3) while in the employment of the first-mentioned council is taken to have been granted under this section.

229.   Salary in advance

Any employee who is granted a period of long service leave may be paid salary or wages in advance for a period equivalent to that period.

230.   Retirement

(1)  If an employee, after completing at least 10 years' continuous employment –

(a) retires from employment because of sickness or old age; or

(b) is compulsorily retired because –

(i) of age; or

(ii) the position has been abolished; or

(iii) his or her services have become unnecessary –

the employee is entitled to long service leave bearing the same proportion to 90 days as the period of employment since the last completed period of employment entitling him or her to 90 days' bears to 10 years of the employment.

(2)  If a person, after taking leave of absence under subsection (1) , again becomes an employee, the person is taken –

(a) to have completed 10 years of employment on the day before the person again becomes an employee; and

(b) to have taken all leave to which the person is entitled under this Part.

231.   Allowance

(1)  If an employee who is entitled to leave of absence –

(a) dies; or

(b) retires from employment because of sickness or old age; or

(c) is compulsorily retired from employment because –

(i) of age; or

(ii) the position has been abolished; or

(iii) his or her services have become unnecessary –

without having taken any of the long service leave to which the person is entitled, the employee, or his or her personal representative, is entitled to an allowance calculated in accordance with subsection (2) .

(2)  The allowance payable under this section is an allowance equal to the salary that would be payable for the period of long service leave to which the employee is entitled immediately before retirement or death.

232.   Preservation of other rights

(1)  Any period of long service leave to which an employee is entitled is in addition to any recreation leave or sick leave to which the employee may be entitled under any other enactment.

(2)  Recreation leave is not, except with the permission of the council, to be granted to an employee under any other enactment in respect of the calendar year in which any period of long service leave granted to that employee under section 227 commences.

(3)  If recreation leave has been granted to any employee in the calendar year in which any period of long service leave granted to that employee under section 227 commences, that recreation leave, unless the council otherwise directs, is to be regarded as part of the period of long service leave granted to the employee under that section.

(4)  The period during which an employee is absent on long service leave –

(a) is to be included as part of the employee's period of employment; and

(b) subject to subsection (1) , is to be taken into account for the purposes of –

(i) determining the salary payable on return to duty; and

(ii) any recreation leave or sick leave to which the employee is entitled under any other enactment.

233.   Paid employment on leave prohibited

(1)  An employee, without the consent of the council, must not while absent on long service leave –

(a) engage in any business or undertaking, whether as principal or agent; or

(b) engage in the private practice of any profession; or

(c) accept, or engage in, any paid employment.

(2)  If any employee contravenes subsection (1) , the council, by notice in writing may –

(a) direct the employee to return to duty, within the period specified in the notice; and

(b) require the employee, within the period specified in the notice, to refund such part of any salary or wages paid in advance under section 229 not exceeding the salary or wages for a period equivalent to the then unexpired portion of the long service leave as specified in the notice.

(3)  Any sum which is required to be refunded by any employee in accordance with subsection (2) is a debt due to the council.

(4)  If any employee is recalled to duty in pursuance of subsection (2) , the employee is taken to have forfeited all rights and privileges under section 227 up to the date upon which the employee returns to duty.

(5)  The provisions of this section do not prejudice or affect any punishment or penalty which may be imposed on any employee under any other enactment.

234.   Apportionment of expense between councils

(1)  If the council pays any salary, wages or allowances under this Part, it may recover from any other council in whose employment an employee has served a part of the salary, wages or allowances that is proportionate to the period of employment in that other council in relation to the total period of employment which constitutes the employee's qualification to receive the payment.

(2)  If an employee becomes entitled to a period of long service leave and has not taken it, the obligation of another council is to be calculated as if the salary, wages or allowance had been paid at the rate at which they would have been paid if the employee had taken the leave as soon as he or she became entitled to it.

Division 2 - .  .  .  .  .  .  .  .  

[Division 2 of Part 7 Repealed by No. 90 of 1995, s. 11 ]

235.   

[Section 235 Repealed by No. 90 of 1995, s. 11 ].  .  .  .  .  .  .  .  

236.   

[Section 236 Repealed by No. 90 of 1995, s. 11 ].  .  .  .  .  .  .  .  

237.   

[Section 237 Repealed by No. 90 of 1995, s. 11 ].  .  .  .  .  .  .  .  

238.   

[Section 238 Repealed by No. 90 of 1995, s. 11 ].  .  .  .  .  .  .  .  

239.   

[Section 239 Repealed by No. 90 of 1995, s. 11 ].  .  .  .  .  .  .  .  

240.   

[Section 240 Repealed by No. 90 of 1995, s. 11 ].  .  .  .  .  .  .  .  

PART 8 - Miscellaneous matters

Division 1 - Preservation orders

241.   Preservation orders

(1)  A council, on the recommendation of the National Trust of Australia (Tasmania) may by order –

(a) prohibit the demolition of a building that is by itself or with others of historical or architectural interest or of special beauty; and

(b) prohibit the alteration of or adding to the building except as the council may approve; and

(c) require the owner to keep the building in good and tenantable repair.

(2)  A preservation order under this section may –

(a) extend to the grounds of the building; and

(b) prohibit the destruction of specified vegetation and the alteration of the appearance of the grounds.

(3)  A person must not execute or cause to be executed any works for the demolition or alteration of the building or for an addition to the building in contravention of a preservation order.

Penalty:  Fine not exceeding 10 penalty units or imprisonment for a term not exceeding 3 months or both.

(4)  A person must not execute or cause to be executed any works authorized by a preservation order for the alteration of, or addition to, the building to which the order relates otherwise than as approved by the council in the order.

Penalty:  Fine not exceeding 10 penalty units or imprisonment for a term not exceeding 3 months or both.

(5)  In proceedings for an offence under this section, it is a defence to prove that –

(a) the works were urgently required in the interests of safety or health, or for the preservation of the building; and

(b) the notice in writing of the need for the works was given to the council as soon as reasonably practicable.

(6)  In determining the amount of any penalty to be imposed on a person convicted of an offence, the court is to have regard to any financial benefit that has accrued or appears likely to accrue to the person in consequence of the commission of the offence.

242.   Compensation and subsidy

(1)  An owner in respect of whose building a preservation order is made –

(a) is entitled to –

(i) compensation for any expenditure made worthless by the order in accordance with the Land Acquisition Act 1993 ; and

(ii) if the cost of maintenance to comply with the order is excessive in relation to the annual value of the building, to a subsidy from the council; and

(b) in the case of financial hardship, may apply to a magistrate, by way of complaint against the council, for an order that the council purchase the building and any of its appurtenances –

(i) at an agreed price; or

(ii) in default of agreement, at a price determined under the Land Acquisition Act 1993 as if the lack of agreement were a disputed claim.

(2)  A subsidy is to be –

(a) an amount agreed between the owner and the council or, in default of agreement, as determined by a magistrate on the complaint of the owner; and

(b) payable yearly for a specified term; and

(c) negotiable or determinable afresh at the end of each term or if there has been a material change of circumstances causing undue hardship to the owner.

243.   Preservation order is enforceable

A preservation order –

(a) operates as a covenant between the owner and the council that the owner, executors, administrators and assigns will comply with the order; and

(b) runs with the land in equity; and

(c) is enforceable by the council as if it were owner of all other lands in the municipal area and the tenants were natural persons holding of the council for life.

244.   Registering preservation order

(1)  If a preservation order is made in relation to land under the Land Titles Act 1980 , the council may cause a sealed copy of the order and a certificate of the general manager identifying the volume and folio of the Register relating to that land to be lodged in the office of the Recorder of Titles.

(2)  On receipt of a sealed copy and certificate under subsection (1) the Recorder of Titles is to –

(a) register the preservation order by entering a memorial on the folio of the Register identified by the certificate; and

(b) endorse the memorial upon the grant or certificate of title affected when next produced.

(3)  If a preservation order is made in relation to land not under the Land Titles Act 1980 , the council may register it in the Registry of Deeds by lodging a memorial under the Registration of Deeds Act 1935 .

(4)  A memorial lodged under subsection (3) is to –

(a) contain a copy of the preservation order; and

(b) specify the name and address of the owner of the land affected, the name of the district or place where the land is situated and the registration number of the last dealing with the land registered in the Registry of Deeds; and

(c) be signed by a legal practitioner on behalf of the council; and

(d) be certified as "correct for the purposes of the Registration of Deeds Act 1935 " by that legal practitioner.

245.   Variation or revocation

If the council varies or revokes a preservation order the order affecting the variation or revocation may be dealt with as provided in section 244 and the Recorder of Titles is to –

(a) register the variation in the same manner as the original order; or

(b) give effect to the revocation by cancelling the memorial of the original order and of any variation.

Division 2 - Advertising hoardings

246.   Advertising hoardings

(1)  A person must not, within a municipal area, erect, put up, place or use or permit to be erected, put up, placed or used, any hoarding or similar structure for advertising purposes without a licence from the council.

Penalty:  Fine not exceeding 10 penalty units.

(2)  An application for a licence is to be –

(a) in writing; and

(b) lodged with the council.

(3)  Thecouncil may issue a licence to any person authorizing the person to erect, put up, place or use an advertising hoarding or similar structure in any place specified in the licence.

(4)  The council may refuse to issue a licence for an advertising hoarding or similar structure if, in the opinion of the council –

(a) the hoarding or similar structure may become dangerous, unsightly or unsuitable to the locality in which it is erected; or

(b) it is not desirable to issue the licence in respect of the place where the hoarding or structure is erected.

(5)  A licence may be subject to conditions as to the maintenance of the hoarding or similar structure.

247.   Removal of advertising hoardings

(1)  The council, by notice in writing, may order the owner of any advertising hoarding or similar structure which has been erected or maintained in contravention of this section, to remove it by a specified date, at least 14 days after receipt of the notice.

(2)  The owner is taken to have received the notice if the notice is posted on or attached to the hoarding or similar structure within 7 days of the date of the notice.

(3)  An owner must comply with a notice.

Penalty:  Fine not exceeding 10 penalty units.

(4)  A council may enter upon the land on which the hoarding or structure is erected and may destroy it or take the material for its use if –

(a) the hoarding or similar structure has been erected, put up or placed in contravention of section 246 ; or

(b) an owner to whom a notice has been given has failed within 14 days to obey it.

(5)  The cost of any removal and destruction may be added to the amount of any penalty imposed under this section.

Division 3 - Building over sewers

248.   Building over sewers prohibited

(1)  A person must not –

(a) erect or construct a building, wall, bridge, fence, mound, embankment, excavation, tunnel or other work in, upon, over or under a sewer or drain of a council or a sewer or drain connected to a sewer or drain of a council without the council's consent in writing; or

(b) obstruct, fill in or divert a sewer or drain of a council without its consent in writing.

Penalty:  Fine not exceeding 5 penalty units and a daily penalty of a fine not exceeding one penalty unit.

(2)  If, in contravention of this section, any thing is erected or constructed –

(a) council may demolish, remove or remedy it and perform any works necessary for restoring or reinstating its sewer or drain; and

(b) the person who did the erection or construction and any person who directed it to be done are jointly and severally liable for the expenses incurred by the council; and

(c) any such expenses are recoverable in a court of competent jurisdiction.

(3)  This section does not prevent or impede the maintenance, repair or renewal of a building, wall, bridge, fence or other structure under which a sewer or drain has been constructed so long as that the work does not injure or obstruct the sewer or drain.

Division 4 - Sewers and Drains

249.   Interpretation of Division 4

In this Division –

Authority means the Port of Launceston Authority within the meaning of the Marine Act 1976 ;

city means the Launceston municipal area;

Council means the Launceston City Council.

250.   Storm overflows and discharge

The Council may –

(a) construct, install and maintain storm overflows at or near the end of any of the following:

(i) Margaret Street;

(ii) Shields Street;

(iii) Tamar Street;

(iv) what was formerly Wescombe Street;

(v) Lawrence Street;

(vi) Boland Street;

(vii) the southern end of Invermay Road;

(viii) the western end of Forster Street;

(ix) Willis Street;

(x) Forest Road;

(xi) the Town Pier;

(xii) in the vicinity of the eastern end of Forster Street;

(xiii) other places the Authority may approve;

(b) discharge the water from the cleaning out of the filtration plant at Distillery Creek into that rivulet below the Waverley Woollen Mills, or into the North Esk River, although such discharge may contain flock or other impurities, the result of the filtration.

251.   Stormwater drains and sub-soil drains

(1)  If, in the opinion of the Council, a street, right-of-way or private land is not adequately drained, the Council may construct any stormwater drain or sub-soil drain it thinks fit for the purpose.

(2)  Before proceeding with the construction, the Council is to give to the owners of all land through, under or over which the drain is to pass 28 days' notice in writing of its intention to construct it.

(3)  All costs incurred by the Council in relation to providing a drain, including any compensation payable by the Council under section 25 of the Sewers and Drains Act 1954 , is to be paid to the Council by the owners of any land that –

(a) is served by, or derives benefit from, the drain; or

(b) front or abut on any part of a street which is drained by the drain.

(4)  The costs under subsection (3) –

(a) exclude any cost attributable to making any section of a drain larger than normal for the land to be served by the drain; and

(b) are payable in such proportions between the owners as the Council determines; and

(c) are recoverable as if they were rates; and

(d) are a charge on the land from the date on which the work has been completed.

(5)  Land is taken to derive benefit from a stormwater drain if the drainage from the land goes into the stormwater drain by way of a table drain or gutter of a highway.

PART 9 - Amendments to other Acts in relation to Building Provisions

252.   

See Schedule 1.

SCHEDULE 1 - Consequential Amendments

Section 252

The amendments effected by this Schedule have been incorporated into the authorised versions of the appropriate Acts.