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46 Money St
Perth, WA, 6000
Australia

+61 8 6460 5179

Planning and Environment Law Firm Perth. 

Blog

CHALLENGE TO APPROVAL OF LAND CLEARING PERMIT ON BASIS OF CLIMATE CHANGE

Glen

In November 2017, the Northern Territory Environmental Protection Authority (EPA) recommended to the Pastoral Lands Board (PLB) to grant the largest single permit for land clearing in the Northern Territory. The clearing permit was sought in order to clear 20,431 ha of land at the Maryfield cattle station, south of Darwin for pasture improvement for the grazing of stock (Project).

The Project is proposed to be staged over a five year period with aerial sowing of pasture mix followed by felling of vegetation using bulldozers and chains. Felled vegetation is proposed to be progressively burned and levelled.

In recommending the grant of the permit, the EPA decided that the Project did not require an environmental impact assessment (EIA). The EPA’s decision to not require an EIA has been criticised on the basis that it did not take into account the Project’s “considerable contribution to the NT’s annual greenhouse gas emissions as a result of the vegetation clearing.”

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The EPA explained that no consideration was given to greenhouse gas emissions because there is no government policy to guide decision making. Further, the Project’s contribution to greenhouse gas emissions in the national context, would not constitute a ‘significant impact’ on the environment, and thereby require an EIA.

The EPA’s recommendation and the PLB’s decision to grant the permit was challenged in the NT Supreme Court by the Environment Centre Northern Territory on a number of grounds, including:

(a)  the Project’s likely emissions would amount to 18.5 per cent of the Northern Territory’s total annual emissions for 2015, and even if the Project would not cause a significant impact on global temperature rise, that did not mean that the emissions were acceptable and did not require assessment;

(b) the absence of a government policy on greenhouse gas emissions does not mean that emissions resulting from the Project can be ignored;

(c) in the past the EPA has required an EIA for applications that proposed clearing smaller areas of land than the Project’s proposal; and

(d) the EPA recommended to the PLB, which is the final decision maker, that the clearing be approved subject to a number of conditions. Subsequently, the PLB approved the clearing, but ignored a number of those conditions.

This Supreme Court challenge is considered to be the first case in the Northern Territory to challenge the approval of land clearing action on the basis of climate change. The challenge has also drawn attention to the limitations in the current legal and policy frameworks for land clearing and climate change in the NT.

This case raises significant questions and the Court’s decision is awaited with interest. When should a proposal to clear native vegetation trigger an environmental impact assessment? To what extent are the greenhouse implications of the clearing factors in assessing a clearing proposal? The Court’s decision has yet to be published.

FIXED FEE BILLING: AN EFFECTIVE MODEL FOR OUTCOMES-BASED LEGAL SERVICES

Glen

There has been much talk in the legal fraternity and beyond about fixed price services. Our experience is that its benefits to the clients include:

·       the outcomes to be achieved for the client are of primary concern;

·       greater certainty for the client;

·       the services are scoped and specified; and

·       fixed prices are assigned to the services and when that is not possible for the longer term tasks, estimates are provided.

A 2017 report by the Association of Corporate Counsel indicated that one of the most pertinent considerations for a client when engaging a firm are flexible billing methods.

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The focus must be on value for the client. The old six-minute increments approach to billing which looks back to what has been done and then costed, is replaced by a forward looking outcomes focused approach. The new approach presupposes the provision of a scope which outlines the work that is required and the fixed fees that will be charged.

Glen McLeod Legal has used fixed fee billing since the founding of the firm, almost 7 years ago, as part of its value-based pricing approach. Our experience has shown that value-based pricing has been a positively received by our clients.  

If you have a town planning or environmental legal issue, the team at Glen McLeod Legal can assist with, then please do not hesitate to contact us by telephone on (08) 6460 5179 or by email at glen@glenmcleodlegal.com

GLEN McLEOD LEGAL SPONSORS LAW SOCIETY END OF YEAR COCKTAIL FUNCTION

Glen

Glen McLeod Legal was delighted to be a supporting sponsor of The Law Society of Western Australia’s End of Year Celebration on Wednesday 5 December 2018 at the Westin Hotel. It was a great evening of collegiality and an opportunity to speak with others in the profession about the year in review.

 It was also a pleasure to hear from Hayley Cormann, President of the Society, about the Society’s achievements in 2018.

From left: Jess Hamdorf, Glen McLeod and Chelsea White

From left: Jess Hamdorf, Glen McLeod and Chelsea White

Waste approvals in Western Australia

Glen

Waste management and recycling has become an increasingly important topic of discussion in Australia. Western Australia is part of that conversation. Public awareness has been increased because of factors such as the import restrictions imposed by China in April 2018 under its Blue Sky/National Sword program, which prevents 99% of the Australian recyclables previously sold to China from being exported there.[1] The scale of waste management is likely to increase. WA’s population is expected to increase to 3.2 million people by 2026[2], with most of the growth anticipated to take place in metropolitan Perth. Consequently, WA’s waste infrastructure capacity must grow to meet the increased waste supply.  

Further, WA must develop its waste infrastructure if it is to achieve the waste diversion targets set out in the Western Australian Waste Strategy: Creating the Right Environment.[3] Despite the need for new waste management facilities, it can be a lengthy process to obtain all of the necessary approvals. This challenge has been identified in various reports[4] and is an issue faced by a number of our clients.

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While it is difficult to generalise about the approvals, licences and assessments required to operate a particular waste facility, it is likely to be some combination of the following:

·       development approval from a local government or from a Joint Development Assessment Panel;

·       environmental impact assessment by the Environmental Protection Authority under Part IV of the Environmental Protection Act 1986 (WA);

·       assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth);

·       an application for a works approval and licence for prescribed premises under Part V of the Environmental Protection Act 1986 (WA); and

·       assessment under the Public Health Act 2016 (WA).

Obtaining the requisite combination of approvals and licences and undergoing the necessary assessments can significantly delay and add to the establishment costs of waste management and recycling projects. Numerous recommendations have been made to improve the assessment and approval process for waste management and recycling facilities.[5]

The most significant regulatory challenges for our clients in the waste sector have been obtaining planning approvals. ‘Waste’ is not a word that conjures a positive response and surprisingly, at the local level, neither is ‘recycling’. How these problems are resolved is not purely legal, but the approvals process plays an important part. While the best approach is negotiation, litigation is often open as a last resort option.


[1] Jenni Downes, China’s recycling ‘ban’ throws Australia into a very messy waste crisis (27 April 2018) The Conversation <https://theconversation.com/chinas-recycling-ban-throws-australia-into-a-very-messy-waste-crisis-95522>

[2] Department of Planning, Lands and Heritage ‘WA Tomorrow (2015): Population Report No. 10’ (August 2015) <https://www.planning.wa.gov.au/publications/6194.aspx>

[3] See Waste Authority, Western Australian Waste Strategy: Creating the Right Environment (March 2012) p 24; Waste Authority, Draft Waste Strategy 2030 (2018) p 8; Office of the Auditor General Western Australia, Western Australian Waste Strategy: Rethinking Waste (Report No 23, October 2016) pp 5, 7-8.

[4] Government of Western Australia, ‘State Planning Strategy 2050’, Page 80; Waste Authority ‘Strategic waste infrastructure planning project: investigation report’ (June 2014), page ii, ix, 51 -52; Western Australian Local Government Authority, ‘Background Paper on Local Government Waste Management Infrastructure’ (April 2011) page 12-14.

[5] Western Australian Auditor General’s Report ‘Western Australian Waste Strategy: Rethinking Waste (October 2016); Western Australian Local Government Authority, ‘Background Paper on Local Government Waste Management Infrastructure’ (April 2011); Waste Authority ‘Strategic waste infrastructure planning project: investigation report’ (June 2014).