The Glen McLeod Legal team attended a seminar hosted by the National Environmental Law Association (WA) (NELA) on the regulation of greenhouse gas emissions in Western Australia (WA).

In March 2019 the Environmental Protection Authority of Western Australia released an Environmental Factor Guideline on Greenhouse Gas Emissions (Guideline). The Guideline required major WA resources projects to 100% offset their greenhouse gas emissions. NELA hosted a seminar to discuss the Guideline, the role of policy in environmental impact assessment and the response from industry, which lead to the Guideline being withdrawn.

We heard from a panel of speakers which included the Hon Robert French AC, Dr Tom Hatton the Chairman of the WA Environmental Protection Authority, Bronwyn Bell the manager of natural resources at the Chamber of Minerals and Energy of Western Australia and Dr Jatin Kala, a climate scientist from Murdoch University and lead author on Chapter 1 of the IPCC Report: Global Warming of 1.5C.

A memorable quote from the former Chief Justice, the Hon Robert French AC, was his statement that “statutes do not speak for themselves” in reference to the need for policy to give operational life to the Environmental Protection Act 1986 (WA).

We are pleased to announce that Connor Fisher has been recognised by Doyle’s Guide to the Legal Profession as a rising star in planning and environment.

Australian Planning & Environment Rising Stars details non-partner level individuals practising in planning, environment & climate change matters across the Australian legal market who have been identified by clients and peers for their expertise in these areas.

Blue building with wooden door

It was a pleasure to have Glen McLeod chair the Law Society’s ‘Property Law Update’ on 20 March 2019.

The seminar included an engaging presentation by Linda Widdup on the interaction between the Personal Property Securities Act 2009 and the general law, an update on the 2018 Joint Form General Conditions for the Sale of Land by Paul Donovan, and a session on strata law by Rachel Cosentino.

Photograph of Glen McLeod

Glen McLeod Legal is pleased to have been recognised as a first tier planning and environment firm in Western Australia.

Glen McLeod, Principal of Glen McLeod Legal has also been recognised as a preeminent planning and environment lawyer.

It is an honour to be acknowledged by our clients and peers, and we look forward to continuing our close relationships in the year to come.

The full Doyle’s Guide can be accessed here.

 

 

In a recent case a Developer, thinking the planning framework had been clear enough, had applied for development approval for a petrol station and accompanying convenience store (Development Application) only to find their application refused by the Southern Joint Development Assessment Panel (JDAP). In review at the State Administrative Tribunal (Tribunal) the JDAP’s decision was reversed and the Development Application approved. The Tribunal’s decision was upheld on appeal to the Supreme Court of Western Australia (Supreme Court) and then subsequently reversed by the Court of Appeal.

This all revolved around a land use classification dispute in Busselton, in particular whether the use was a ‘Service Station’ or ‘Convenience Store’ under the applicable town planning scheme (Scheme).

At a preliminary hearing the Tribunal decided that the proper classification of the use was ‘Convenience Store’ (Preliminary Decision). This use was permitted under the Scheme.

The planning authorities (a local government and Western Australian Planning Commission) rushed through an amendment to the Scheme which redefined ‘Service Station’ to include the ‘sale of goods of an incidental or convenience nature.’ Because of this change, the proposed use was classified as ‘not permitted unless the [local government] has exercised its discretion by granting planning approval’ (Amendment). The Tribunal, standing in the shoes of the local government in the review proceedings, ignored the Amendment and approved the application.

The Supreme Court at first instance held that the classification of the use at the preliminary hearing gave the Developer an ‘accrued right’ to have the application determined in accordance with the Preliminary Decision

On appeal to the Court of Appeal it was held that the Preliminary Decision did not have binding effect because at the preliminary hearing it is not the role of the Tribunal to make a binding legal determination.

The decision is consistent with the well-established principle of Australia planning law: a planning application is to be determined on the basis of the law as it stands at the time of the determination, whether by an original decision maker, on review in the Tribunal or on appeal to a court.[1]

To read a brief summary and overview of the Court of Appeal’s decision, please click here.

[1] Miller v City of Stirling [2007] WASAT 247; Bonton Pty Ltd v City of South Perth [No 2] (1982) 4 APA 108; Carcione Nominees Pty Ltd & Anor v Western Australian Planning Commission & Ors (2005) 30 WAR 97.

In late 2015 the Southern Joint Development Assessment Panel (JDAP) refused to grant development approval to DCSC Pty Ltd (DCSC) for its proposed petrol station in the City of Busselton (Proposed Development). In early 2016 DCSC applied to the State Administrative Tribunal (Tribunal) for review of the JDAP’s decision.

The Tribunal made orders that it was to first determine the proper use classification of the Proposed Development under the City of Busselton Local Planning Scheme No. 21 (LPS 21). In August 2016 the Tribunal determined that the Proposed Development was properly classified under LPS 21 as a ‘convenience store’ rather than a ‘service station’ (Preliminary Decision). ‘Convenience store’ was a permitted use under LPS 21 whereas ‘service station’ was a discretionary use.

The review application was heard by the Tribunal in early February 2017 (Hearing). Both parties proceeded on the basis that the Proposed Development was classified as a ‘convenience store’. After the Hearing but before the Tribunal delivered its decision, an amendment to LPS 21 came into force which changed the definition of ‘service station’ (Amendment). The Proposed Development would not have been properly characterised as a ‘convenience store’ under LPS 21 as a result of the Amendment.

In August 2017 the Tribunal granted conditional approval for the Proposed Development (Final Decision). The JDAP appealed the Final Decision to the Supreme Court and argued that the Tribunal should have had regard to the Amendment when deciding to grant conditional approval. The appeal to the Supreme Court was dismissed (Primary Decision). The JDAP then appealed the Primary Decision to the Court of Appeal.

The first ground of appeal was that the primary judge erred in holding that the Preliminary Decision was binding on the parties and the Tribunal. The JDAP contended that the primary judge should have held that, despite the Preliminary Decision, the Tribunal was required to make the correct and preferable decision on the law applicable at the time of the Final Decision.

The second ground of appeal was that the primary judge erred in holding that DCSC had an accrued right to have the review application determined in accordance with the Preliminary Decision. The JDAP contended that because DCSC did not have an accrued right to have its review application determined under the provisions of LPS 21 before the Amendment, the law applicable to the review application was LPS 21 as amended.

The Court of Appeal held that the Preliminary Decision did not have a binding effect so as to preclude the Tribunal from considering the effect of the Amendment in making the Final Decision. It was not part of the Tribunal’s function in exercising an executive power to make any final or binding determination as to the legal effect of a planning scheme. In any event, the Preliminary Decision determined no more than the classification of the Proposed Development under LPS 21 as it stood prior to the Amendment and did not address the proper classification of the Proposed Development under LPS 21 following the Amendment.

The Court of Appeal held that DCSC did not have an accrued right to have the Tribunal determine the review application under the provisions of LPS 21 prior to the Amendment. Rather, the Tribunal was required to have due regard to the provisions of LPS 21 as it stood at the time of its determination of DCSC’s review application.

PLANNING CONDITION TO BE LODGED ON CERTIFICATE OF TITLE TO WARN BUYERS OF POTENTIAL ODOURS AND TRANSPORT NOISE

‘Buyer beware’ is perhaps one of the better known legal maxims. Even its Latin translation ‘caveat emptor’ is recognisable by many people. Hold that thought.

Land use conflict is becoming a more common phenomenon, particularly in these days of increasing urbanisation, on what was once the periphery of metropolitan areas, and infilling of former industrial areas with residential development.

This urban development and town planning phenomenon finds legal expression at the intersection of town planning and environmental law. This is a complex legal and policy area which has been of interest to this firm for many years, particularly because it affects both industrial and urban development clients.

A recent decision of the Supreme Court of Western Australia is of significance to the growing body of law and policy in this area. It overturned a decision of the State Administrative Tribunal (SAT), which held that memorials on title could not be applied to warn of a land use conflict between a small goods manufacturer and a major apartment development. A memorial on title can serve to warn prospective purchasers, engaged in a due diligence exercise, of a potential land use conflict.

The Supreme Court has overturned the SAT decision, with the effect that the SAT must re-decide the case. To read a brief summary and overview of the Supreme Court decision, please click here.

In 2017, the Metropolitan Central Joint Development Assessment Panel (Appellant) granted development approval for the construction of 258 apartment dwellings, subject to a number of conditions. One condition required a notification made pursuant to s 70A of the Transfer of Land Act 1893 (WA) (TLA) to be lodged on the relevant certificates of title to alert prospective buyers that residences may be affected by transport noise and odours (Condition).

The developer of the residences, 43 McGregor Road Pty Ltd (Respondent) applied to the State Administrative Tribunal (Tribunal) for review of the Appellant’s decision to impose the Condition.

The Tribunal determined that the Condition is invalid. The Tribunal’s decision was challenged by the Appellant, in the Supreme Court of Western Australia (Court), on four grounds.

The first ground of appeal was that the Tribunal erred in law in holding that the Appellant was not a public authority within the meaning of s 70A of the TLA. Whether or not the Appellant was a public authority was central to whether it had the power to cause a notification to be lodged on the relevant certificates of title under s 70A of the TLA.

The Court held that while the Appellant performed a public function in determining prescribed development applications, it could not properly be characterised as a public authority. This is because the Appellant did not have the functions or powers that a public authority must necessarily have in order to exercise the specific powers and functions under s 70A of the TLA in that it did not have the power to:

(a)   lodge a notification on a certificate of title;

(b)   pay the prescribed fee;

(c)   liaise with the current proprietor about whether it is desirable to lodge a notification and procure consent;

(d)   receive future requests from the registered proprietor for removal or modification of the notification; and

(e)   perform any functional role involving ongoing management or responsibility for land use which may include secondary powers to its primary function.

The absence of these powers meant the Appellant was not a public authority and accordingly the first ground of appeal failed. The Court went on to make some useful observations about development assessment panels (DAP) more generally, noting:

(a)   the key function of a DAP is to determine significant applications for development approval;

(b)   a DAP is not a separate legal entity with the capacity to act in its own name;

(c)   a DAP does not have a legal personality separate to that of its members, and does not have the capacity to take action or respond to matters in its own name;

(d)   administratively, a DAP functions by certain individuals or organisations carrying out tasks or responsibilities on behalf of the DAP; and

(e)   DAPs are purely decision-making panels; they are not empowered to monitor compliance with any conditions upon which development approval was granted.

The second ground of appeal was that the Tribunal had erred in law in failing to hold that the Appellant had power to impose the Condition.

The Court held that a planning authority has the power to impose, as a condition of a development approval, a condition that the proprietor of the land consent to a notification on the title pursuant to s 70A, if the condition is for a planning purpose and reasonably relates to the development approved.

In making this finding, the Court distinguished between the Appellant’s power to make the lodging of a notification a condition of a development approval and its inability to direct a proprietor or developer to lodge a notification.

The third ground of appeal related to whether the Condition was for a proper planning purpose. The Tribunal had found that the Condition was not for a proper planning purpose as it did no more than alert potential purchasers of a potential negative amenity impact.

The Court held that the Tribunal had erred by applying too narrow a definition to the concept of ‘proper planning purpose’. The Condition could serve a proper planning purpose by making prospective residents aware of potential impacts on amenity that may not be obvious from a physical inspection of the land itself.

This, the Court said, was consistent with the purpose of creating an efficient and effective land use planning system provided for in s 3(1)(b) of the Planning and Development Act 2005 (WA) (PDA).

The fourth ground of appeal argued that the Tribunal erred in failing to have regard to the relevant planning considerations, contrary to s 241(1)(a) of the PDA, which provides that the SAT is to have due regard to planning considerations including any State planning policy which may affect the subject matter of the development application.

The Court did not address this ground substantively, but held that the ground was made out. This was because the reasons of the Tribunal did not make reference to the Draft State Planning Policy 4.1 and State Planning Policy 5.4, which refer to prospective purchasers being made aware of amenity impacts on land to be subdivided or developed by means of notification on title. The Court found that the Tribunal should have had regard to those policies in determining whether the Condition was for a proper planning purpose.

As three of the four grounds of appeal were made out the Court set the decision of the Tribunal aside and determined that the matter should be sent back to the Tribunal for reconsideration without the hearing of further evidence.[1]

The Court’s decision can be accessed here.

[1] At the date of writing, the SAT has not reheard the matter.

Declaration: Glen McLeod Legal acts for the industrial operator in this matter, D’Orsogna Ltd.

Northern Territory climate change case

In November 2017, the Northern Territory EnvironmentalProtection 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.

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

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.

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.