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Planning and Environment Law Firm Perth. 

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Filtering by Category: Planning

Environmental Considerations in SAT Review Cases

Glen

Decisions of the State Administrative Tribunal (SAT) and its predecessor the Town Planning Appeal Tribunal have played an important part in the conceptual development of the role of environmental considerations in town planning, which has had a close complementary relationship with the development of policy by the Western Australian Planning Commission (WAPC). The SAT and WAPC principles have evolved in line with the development of contemporary notions of sustainable development in a way that is not possible under the State’s environmental legislation, which works within a separate legislative and administrative silo. When the Planning and Development Act 2005 (PD Act) was enacted, it continued with the statutory planning system that had existed in this State since the enactment of the Town Planning and Development Act 1928, save for some important changes, one of which was the inclusion a statement of purposes, in section 3 of the new Act. Those purposes included the promotion of the “sustainable use and development of land”: section 3(1)(c) of the PD Act.

 

IBA Conference

Glen

Boston 7-11 October Session Organised by Glen and Other Sessions

Glen organised a session at the International Bar Association's (IBA's) recent annual conference in Boston entitled Environment and Natural Resources Courts – Do We Need Independent and Specialised Adjudicators?  This was done in his capacity as Senior Vice Chair of the IBA's Environment Health and Safety Committee. The conference was held from 7-11 October 2013. The need for specialised environmental courts has been voiced by industry, government and non government organisations which seek to have their positions understood by judges who have experience with or training in complex scientific, engineering, social and economic criteria that underlie the resolution of environmental and resource issues. The session focused on:

  • the need for and advantages of environmental disputes, judicial reviews and prosecutions being heard by specialist judges and other adjudicators; and
  • the potential advantages of having specialised judges or adjudicators issue licences for major projects or resource allocation permits in place of government administrative officials.

We were blest to have an eminent panel of speakers accept invitations to contribute. The session was held on the morning of 8 October and the programme is set out below.

Justice Brian Preston, Chief Judge, New South Wales Land and Environment Court was Glen's co-chair of the session

Rock Pring Professor, Environmental, Natural Resources Law, Constitutional and International Law, Sturm College of Law, University of Denver, USA

Kitty Pring Principal, Global Environmental Outcomes LLC (GEO), USA

Meredith Wright Judge, Environmental Division Vermont Superior Court, USA (r’td)

Judge David Parry Deputy President, State Administrative Tribunal, Perth Western Australia

Israel Aye Lawyer, Sterling Partnerships, Lagos  Nigeria

Gordon Nardell QC, London UK

The entire conference was attended by approximately 5000 lawyers from around the world. Next year's conference will be held in Tokyo.

There were two other sessions organised by the same Committee at the conference. There was a special showcase session on climate change justice and human rights, Chaired by Baroness Kennedy QC, at which Justice Preston was a commentator and a separate afternoon session entitled ‘Environmental constitutionalism-environmental protection as a fundamental constitutional or human right’. That session was chaired by Los Angeles Environmental Lawyer Michelle Ouellette and the speakers included James May, Professor of Law at Widener University, Delaware, who has carried out an international study of constitutional provisions relating to the environment.

An Irish Lawyer who attended the session said in a recent email to Glen McLeod regarding that session and the one on Environmental Constitutionalism referred to under the above heading:

‘The topics and the quality of speaker in each were just outstanding and there was a real engagement from the audience and between the floor and the audience in each Session. I hope that there is some way that the powers that be in the IBA would be aware of top quality of each of those sessions.’

A Nigerian Lawyer said:

 I took away thoughts and ideas I can plough into the ECT conversation in Nigeria to hopefully move it forward.

Policy and Law - The Town Planning Context

Glen

The tension between policy and law is a subject which manifests in many legal areas. In the town planning context, it was recently examined at a Planning Institute of Australia seminar on 26 June. Glen spoke on the subject Planning Policy and the Law (see his powerpoint presentation here). Melanie Debenham presented on the challenges of reconciling policy and legislation across the planning and liquor licensing regimes. The relationship between policy and law is a subject that is becoming increasingly important with the proliferation of planning policy in part brought about by a desire for flexibility and guidance in decision making. In exploring its topic, the seminar addressed questions such as:

  • What are the legal tests for valid policies?
  • What is a 'seriously entertained proposal'?
  • When does the invalid use of policy lead to litigation?

Glen said: 'I was reminded of the difficulty this subject presents for many of us when, in a conversation after the event with a senior member of the planning profession it became clear that one of the main messages of the presentations, that policy cannot go beyond what is lawful, was understood only to a limited extent. The person concerned was seriously suggesting that certain practices of a government planning agency would have to be accepted by a developer simply because 'that is how it is done in this State'. The assertion ignored the fundamental point that the practice in question was not underpinned by lawful authority and it is highly likely that a Court would regard the agency as acting beyond power, were the practice to be challenged in Courts. Advice on policy issues should start prudently by considering whether the policy, or the relevant part of it, is lawful.

Change Inevitable for the Waste Sector

Glen

Change is inevitable in the waste sector.[1] I can say this confidently on the basis of history. I was reflecting on this in preparing these remarks. As is often the case it is one's own experience that is the best starting point.

In my own case, after being admitted to practice as a lawyer, my first real job was as a local government officer in 1978, for the City of Cockburn. For those who need reminding, or have the great gift youth, in the 60s and early 70s, most households only needed one smallish metal rubbish bin, which was emptied weekly.

At the City of Cockburn in the late 1970s, even then, strategic thinking on the City's waste needs was a subject of serious discussion. Admittedly, by today’s standards the discussion was limited to one local government area of about 34,000 people and it was all about finding voids or places that could become rubbish tips, as they were then called.

Later in the 1980s, when I was practicing in a Perth law firm, one of my clients was in the business 'waste disposal'. In those days getting approval was relatively simple. That client had found a hole, was easily granted a planning approval by the local government and then had obtained a sign off under the Health Act 1911, in a short letter, from the Health Surveyor. That was it. Away they went with the enterprise.

Soon however, times were changing. I drafted the State’s first Regional Council Constitution, in the early 1980s.

Then in the UK in the late 1980s and early 1990s I saw rapid policy developments coming out of the EU. My clients included several operators of thermal treatment plants for difficult waste.

Back in Australia in the mid 90s landfill was still dominant, with some exceptions.

The point of mentioning all of this is that in the past 3 decades we have come a long way but we have not yet come to the end of history.

The Waste Authority has a view that there is a need for an independent co-ordinating body for waste management, being more than an advisory body within our environmental regulator.[2] I shall now touch on a few reasons why this view is held and they will probably not come as a surprise to you.

There has been a degree of haphazardness in the growth of waste management responsibilities in WA.

Local and to some extent regional councils have had a central role in waste management, complemented by the private sector. There is a degree of uncertainty about the role of Regional Councils. We have recently seen some instability.

Although the State Government has not played a strong role historically in waste, we have detected an appetite in local government and the private sector for a stronger, leading role to be played by the Waste Authority or an alternative independent state body responsible waste.

It is now just over a year since the State’s Waste Strategy was released, as required by the Waste Avoidance and Resource Recovery Act, 2007.

Soon that Act is will undergo a review.

As I am sure you are all well aware, the Robson Review of local Government has also made several recommendations on Waste management.

The work of the Strategic Waste Planning Infrastructure Working Group (SWIPWG) complements these initiatives and has the potential to benefit from the thinking currently underway at the local and regional level through a Western Australian Local Government Association Working Group and the Municipal Waste Advisory Council.

The SWIPWG was established to develop a Waste and Recycling Infrastructure Plan for the Perth and Peel Region.

The aim of the Plan is to determine the waste management infrastructure required to meet the needs of the Perth and Peel ‘3.5 million city’ and to assist in achieving the targets of the Waste Strategy. The Plan will also set out the planning, governance and funding instruments required to establish the infrastructure.

The four inter-related parts of this Plan form the basis of the SWIPWG’s iterative agenda.

First, Planning and Approvals

The purpose of this section is to provide information and recommendations on:

  • the land use planning system in WA, as it relates to waste facilities;
  • environmental and planning opportunities and constraints for waste facilities in the Perth metropolitan and Peel regions, and how these may be increased or minimized, respectively; and
  • existing land use planning mechanisms which may be used to integrate waste management issues into the WA planning framework, and secure sites for waste facilities.

Secondly, Facilities and Sites

The purpose of this section is to provide information and recommendations on:

  • the existing capacity of waste facilities in the Perth metropolitan and Peel regions, and likely waste infrastructure needs for 2015, 2020 and the 3.5 million city; and
  • potential and preferred sites for development of new waste facilities, including opportunities for co-location, waste precincts, and industrial ecology.

Thirdly, Technology

The purpose of this section is to provide information and recommendations on suitable waste management facilities and technologies for the Perth metropolitan and Peel regions, and assess their potential contribution to achieving the targets of the Waste Strategy.

Fourthly, Governance and Funding

The purpose of this section is to provide information and recommendations on:

  • the settings that influence waste management in the Perth metropolitan and Peel regions;
  • potential changes to current governance arrangements which may be required to meet the infrastructure needs of the region and contribute to achieving the Waste Strategy targets; and
  • potential changes to current funding arrangements which may be required to deliver the needed infrastructure and contribute towards achieving the Waste Strategy targets.

We have, as I have said, already been consulting as an Authority with the local and regional government and private sectors.

Today we would like to have facilitated discussions with you on topics we have been working on, lead by the Waste Authority’s officer team.

The work of the event proceeded and more information will become available on the Waste Authority’s website.

Glen McLeod, June 2013


[1] Edited version of Glen McLeod’s opening remarks to Waste Authority Strategic Planning Consultation Meeting-18 June 2013. Glen is Co-Chair of the Waste Authority’s Strategic Waste Planning Infrastructure Working Group.

[2] A view shared by Simon Withers the Mayor of the Town of Cambridge in an article in The West Australian,  25 June 2013