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46 Money St
Perth, WA, 6000
Australia

+61 8 6460 5179

Planning and Environment Law Firm Perth. 

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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.

Waste Approvals Image.jpg

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).

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.

Bushfire.jpg

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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