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Perth, WA, 6000
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+61 8 6460 5179

Planning and Environment Law Firm Perth. 

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The Application of Bushfire Policy to Subdivision Proposals

Glen

The two recent State Administrative Tribunal (SAT) decisions in Bennett v Western Australian Planning Commission [2018] WASAT 32 (Bennett) and Boynton v Western Australian Planning Commission [2018] WASAT 60 (Boynton) have considered the application of the Bushfire State Planning Policy (SPP 3.7) to subdivision proposals. In both cases the proposed subdivision sites were located within a designated bushfire prone area, as defined in SPP3.7.

The subdivision proposals were refused by the SAT because:

a.     the proposed subdivisions were contrary to SPP 3.7;

b.     there was inadequate vehicular access serving the subdivision in the event of a bushfire; and

c.     a departure from SPP 3.7 would set an undesirable precedent for the subdivision of similarly constrained lots.

SPP3.7

The objective of SPP 3.7 is to “[a]void any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.”  The SAT considered both subdivision applications and found that neither met this objective.

In Bennett, the SAT’s consideration of this objective centred around the applicant’s plan for a building, which would allow occupants to shelter safely in the house, rather than leave the property, when there is a likelihood that the access route will be impacted by bushfire. The SAT held that the proposed building would not avoid any increase in the threat of bushfire to people or to ensure the preservation of life. Therefore, the applicant’s proposal was contrary to SPP3.7.

In Boynton the SAT held that the applicant’s had failed to submit the information required by SPP3.7, which would have allowed the SAT to determine what the bushfire threat was, for each lot that would be created by the subdivision. In absence of this information the bushfire threat could not be determined, and the SAT deemed it inappropriate to grant subdivision approval.

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Site Access

In both Bennett and Boynton the SAT assessed whether there was vehicular access to the proposed subdivision that is available and safe to use during a bushfire event.

In Bennett the SAT assessed the site access with reference to Element 3 of the Guidelines for Planning in Bushfire Prone Areas. The SAT held that there was insufficient access to the proposed subdivision during a bushfire due to:

a.     a constrained number of access contingencies, as the surrounding grassland would complicate fire containment and reduce the likely success of evacuation;

b.     the possibility of reduced visibility due to thick grassland smoke;

c.     the reduced likelihood of falling trees and objects, as they are set well back from the surfaced area of the road; and

d.     the potential for congestion on the access road as residents evacuate, fire services arrive and some residents returning to save aspects of their property.

Given these considerations, the SAT found that the Proposal did not meet Element 3 of the Guidelines and, as there were no cogent and legitimate reasons to depart from Element 3 of the Guidelines, the decision to refuse the subdivision application was affirmed.

Similarly, in Boynton the SAT was not able to find that the proposed subdivided lots had sufficient site access during a bushfire event. This was due to the lots not fronting onto a dedicated public road. Rather, the sole access to the lots would have been by a long cul-de-sac, which despite its historic use, was not considered to be a road which the Crown was required to keep open.

Undesirable precedent

The SAT held that in both instances, the inconsistencies between the subdivision proposals and the requirements of SPP 3.7 and other bushfire planning documents, would result in an undesirable precedent should an approval be granted.

Conclusion

In view of these and other SAT decisions it is clear that there must be exceptional, cogent reasons for a planning authority to depart from the requirements of SPP3.7. This gives rise to the question: is SPP 3.7 being applied too slavishly given the established principle that policies are to be applied flexibly having regard to the merits of the particular case?[1]


[1] Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 [24].

Mental Health Week 2018

Glen

The team at Glen McLeod Legal is recognising Mental Health Week in 2018 by bringing our four legged friends to the office. Brett (left) and Gary (right) have been positive influences and mood boosters in the office. This is consistent with scientific studies.

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NATIVE VEGETATION OFFENCE PENALTY

Glen

Glen McLeod Legal represented two landowners charged with the offence of causing the clearing of native vegetation, without a clearing permit. This is an offence under section 51C of the Environmental Protection Act 1986 (WA) (EP Act).

The landowners owned a farm covering a total area of 2,033ha in the Wheatbelt region of Western Australia. Approximately 23% (~468ha) of the landowner’s farm area was covered in native vegetation. The landowners cleared approximately 8% (~39ha) of this native vegetation, in order to:

(a)         manage existing and prevent future weed infestation; and

(b)        reduce the risks of bushfire hazard.

The clearing was carried out as part of a considered plan which had been developed in consultation with an agronomist. It also took into account that the native vegetation was of marginal quality, given the weed infestation and that it was subject to historic grazing.

However, the clearing was done in the absence of a clearing permit or an applicable exemption under the Environmental Protection (Clearing of Native Vegetation) Regulations 2004.  As a result, proceedings were brought against the landowners by the Department of Water and Environmental Regulation in the criminal division of the Magistrates Court.

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An early guilty plea was taken into consideration by the Magistrate when considering the penalty to be imposed.  The early plea showed that the landowners expressed genuine remorse and regret for not having sought clearing permission.

Under the provisions of the EP Act, the maximum penalty for the offence is $500,000. This penalty is reserved for the worst type of cases. The upper end of penalties usually imposed by the Magistrates Court for clearing offences ranges from $40,000 to $56,000.

The Magistrate accepted the submission in mitigation that the clearing was not wanton and that it had been carried out pursuant to considered plan that may have provided a proper basis for a clearing permit application. The Magistrate also accepted that the landowners committed to revegetating significant areas of land on the farm in addition to requirements under a Vegetation Conservation Notice.

The Magistrate found that the landowners actions prevented a full vegetation assessment from being undertaken, which may have revealed that threatened, rare or sensitive species could have been affected, and that the clearing regime under the EP Act was established for the very reason of protecting against this from occurring. In considering the various mitigating factors against the circumstances of the offending, the Magistrate imposed a fine of $25,000 on the landowners.

This fine shows the importance of applying for a clearing permit before the clearing of native vegetation is undertaken. Glen McLeod Legal advises clients on whether clearing exemptions may be applicable for proposed clearing or whether a clearing permit application should be made.  This case also shows the importance of seeking legal advice when confronted with a prosecution for a clearing offence so that you are properly informed when entering a plea and raising mitigating factors.

Please contact Glen McLeod Legal by telephone on (08) 6460 5179 or by email at admin@glenmcleodlegal.com should you require advice or representation for a matter involving a clearing permit application or prosecution.

NELA Conference Roundup

Glen

Glen McLeod Legal were pleased to be involved in the National Environmental Law Association (NELA) National Conference hosted in Perth on Friday 14 September on the topic ‘Innovation in Environmental Law’.

The Conference brought together a range of speakers from the legal profession, academia, the private sector and government to examine Australia’s response to global innovative trends, how emerging technology is being applied in practice and the role of the legal system in facilitating or restricting innovation.

The presentations were diverse and interesting, ranging from topics such as ‘waste-to-energy’ power projects, innovations to save Australia’s wildlife and the emerging role of lithium.

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Glen McLeod presented on Greenhouse Gas Emission Regulation in Western Australia. This presentation focused first on the  Environmental Protection Authority’s Environmental Factor Guideline - Air Quality, which contains the EPA’s policy on greenhouse gas emissions.

The presentation then considered how the environmental assessment and licensing regimes operate under Parts IV and V of the Environmental Protection Act 1986 (WA) (EP Act). This analysis indicated the potential for regulatory control of greenhouse gas emissions under both Parts IV and V of the EP Act.

Discussion then turned to modern approaches to the regulation of greenhouse gas emissions and considered different legislative approaches taken under the new Victorian Environment Protection Amendment Act 2018 (Vic) and the International Bar Association’s Climate Change Model Statute.

Glen concluded with the proposition that Part IV and V of the EP Act provide the regulatory tools for Western Australia to regulate greenhouse gas emissions.