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46 Money St
Perth, WA, 6000
Australia

+61 8 6460 5179

Planning and Environment Law Firm Perth. 

Blog

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.

GLEN MCLEOD LEGAL ATTEND THE UDIA BREAKFAST ON NAVIGATING THE ENVIRONMENTAL APPROVALS PROCESS

Glen

The team at Glen McLeod Legal was delighted to attend the Urban Development Institute of Australia (UDIA) Breakfast on Wednesday 5 September. The topic for this event was ‘Navigating the Environmental Approval Process’.

The breakfast provided an opportunity to hear from Dr Tom Hatton, Chairman of the Western Australian Environmental Protection Authority, and Darren Cooper, Chair of the Independent Review of the Strategic Assessment for the Perth and Peel Regions (SAPPR).

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Darren Cooper’s presentation was as entertaining as it was insightful as he stepped the audience through the status of the SAPPR. He indicated that under the current timeline the SAPPR was expected to be finished in two years’ time. This, he explained, was in part due to the immense scale of the review, which dwarfs similar interstate reviews, namely, the Urban Growth Boundary Review in Victoria and the South West Growth Area Review in New South Wales.  He suggested that the SAPPR set an ambitious target, but that it should not be abandoned. Rather, he advocated for a more strategic approach.

Dr Tom Hatton’s presentation provided guidance on what the Environmental Protection Authority’s (EPA) approach would be until the SAPPR review is finalised. He indicated that the EPA intends to make the decision about whether to assess a proposal at an earlier stage. He also indicated that the EPA website would provide proponents model examples of proposals that would be most likely to pass the assessment process.

Dr Hatton indicated that the actions proponents could take until the SAPPR review is finalised include:

  1. developing already cleared land;

  2. avoiding proposals which break up a large areas of existing native vegetation; and

  3. siting developments in a manner which maintains vegetation corridors.

In a concluding question and answer session, the audience queried the stringent protection that is afforded to the Carnaby’s Cockatoo and how this can adversely impact the environmental approval process for development.

Upcoming environment and planning law events

Glen

We are pleased to announce that a number of our lawyers will be partaking in upcoming environment and planning law events.

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LAW SOCIETY OF WESTERN AUSTRALIA

THE RISE OF THE SLEEPING GIANT
COMMUNITY CONSULTATION IN THE LAND DEVELOPMENT INDUSTRY

Tuesday, 11 September 2018 

Glen McLeod, Principal of Glen McLeod Legal, will be chairing a presentation which will focus on the emergence of the power associated with community interests as part of the development assessment process.  The legislative starting point is a system where there are no third party appeal rights in Western Australia. Despite lack of rights vested in the community, in respect of planning decisions, the emergence of communities’ influence has been seen in recent years with several successful judicial review applications in the Supreme Court.  Planning authorities, particularly joint development assessment panels, are now inundated with deputations from community representatives, particularly, large projects, sometimes controversial, where significant exercise of discretion is required in order for an approval to be obtained.

 This momentum is starting to gain traction with decision makers and also those that are charged with the responsibility of planning reform.  The premise of the paper and associated discussion will be as with Gulliver’s Travels, the need to deal with the rising giant, lest the possible destruction of meritorious planning proposals.

For more information please click here

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NATIONAL ENVIRONMENTAL LAW ASSOCIATION - NATIONAL CONFERENCE

INNOVATION IN ENVIRONMENTAL LAW

Friday, 14 September 2018

The National Environmental Law Association's 2018 National Conference will be held at the Parmelia Hilton Hotel in Perth on Friday 14 September 2018. The conference will explore the topic of environmental innovation and the role to be played by the legal system in facilitating change. The conference will include presentations on where Australia sits in regard to global innovative trends, how emerging technology is being applied in practice and discussions on how the legislative framework supports or prohibits innovation.

Glen McLeod, Principal, will be presenting on Innovation and the Regulation of Greenhouse Gas Emissions in Western Australia as part of a session focusing on Challenges and Opportunities in environmental law.

Jess Hamdorf, Lawyer, will be chairing a session on Innovation in Practice with representatives from BHP Nickel West, InfraNomics, Martin Biopower and Power Ledger. 

Connor Fisher, Lawyer, will be chairing a panel session titled Future Focus with representatives from various sectors interested in the future of environmental law.

For more information please click here.

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