Photo of a tree

In April 2022, the Department of Water and Environmental Regulation (DWER) published the Guidelines: Applications for a permit to clear native vegetation relating to carbon farming projects (Guidelines) which provides guidance to applicants for clearing permits on how the DWER considers the presence of a registered carbon farming project when assessing clearing permit applications.

The Guidelines apply to carbon farming projects which have been registered under the Emissions Reduction Fund, received State eligible interest holder consent and have been issued Australian Carbon Credit Units (ACCUs).

Clearing native vegetation without a clearing permit or without being otherwise authorised is an offence under s 51C of the Environmental Protection Act 1986 (WA) (EP Act). When determining a clearing permit application, the CEO of the DWER has regard to the clearing principles (contained in schedule 5 of the EP Act) and any development approval, planning instrument or other matter that the CEO considers relevant.[1]

There are three ways in which the existence of a registered carbon farming project within an area of native vegetation proposed for clearing may be a relevant consideration for the CEO, namely:

  1. as a relevant factor in determining the current and future condition of native vegetation. Such an assessment will be based on the best available information or through an inspection of the site at the time the application is made;
  2. as a matter raised through a public submission relating to the clearing permit application; or
  3. as a relevant ‘other matter’.

Notably, the Guidelines state that where ACCUs for a carbon farming project must be relinquished, the CEO would be unlikely to consider the presence of such a project as a matter relevant to the assessment of the clearing permit application.

The Guidelines are available on the DWER website here. If you would like to clarify any aspect of the Guidelines or discuss how it may apply to your land, please contact us by telephone on (08) 6460 5179 or email at admin@glenmcleodlegal.com.

[1] EP Act Section 51O.

Emiko Watanabe (left) and Glen McLeod (right), both smiling in front of a Law Society backdrop at the Welcome to the Profession breakfast

Emiko Watanabe (left) and Glen McLeod (right), both smiling in front of a Law Society backdrop at the Welcome to the Profession breakfast

On Friday 8 April 2022, Emiko Watanabe and Glen McLeod of Glen McLeod Legal attended the Law Society of Western Australia’s Welcome to the Profession breakfast. Nearly 200 recently admitted lawyers and other guests were addressed by keynote speaker The Hon Rene Le Miere QC.

Mr Le Miere imparted valuable insights to maintain a long and rewarding career in law, including the importance of asking questions if you do not understand something, continually learning throughout your career, and taking care of your mental and physical health.

The Hon Rene Le Miere QC addressing a crowd of 200 guests

Glen McLeod standing at a lectern presenting the Legalwise seminar

Glen McLeod standing at a lectern presenting the Legalwise seminar

On 17 March 2022, Glen presented at the Legalwise Property Law: Changes and Developments seminar, which was held in person and via webinar. The seminar program covered topics about strata by-laws, changes to community titles, retail tenancy, construction contracts for property development, and an outlook for the WA property market.

Glen presented an overview of the developments in planning law over the past 12 months, including:

  • planning principles that were revisited in cases in the Courts and State Administrative Tribunal;
  • a brief overview of the draft Medium Density Residential Housing Code;
  • conservation covenants and amendments to the Land Administration Act 1997;
  • a brief overview of recent developments in heritage conservation; and
  • changes to developer contributions under State Planning Policy 3.6 Infrastructure Contributions.

If you have a question about the above topics, please feel free to contact us at admin@glenmcleodlegal.com.

Headshot photos from left to right of Jess Hamdorf, Connor Fisher and Chelsea White

We are delighted to announce the following promotions.

Jess Hamdorf and Connor Fisher have been advanced to the position of Senior Associate. Chelsea White has been advanced to the position of Associate.

This is in recognition of their contributions to the firm and wide ranging expertise in planning and environmental law. Congratulations to you all!

A colourful playground in the shape of a lighthouse and a ship

Common questions in relation to Development Contribution Plans

New developments or the redevelopment of areas require the provision of new or upgraded infrastructure to meet the demands of the population in a new or redeveloped area. New or upgraded infrastructure is funded through developer contributions and, where there are multiple landowners, through Development Contribution Plans.

1. Am I required to pay developer contributions?

If you develop land which is in an area subject to a Development Contribution Scheme (DCS) you may be required to pay developer contributions at a specific point in time. That point typically occurs prior to the subdivision clearance process or when a development application is lodged.

2. What will I need to pay or contribute?

Developer contributions can be made in one or a combination of the following forms: monetary contributions, ceding land (free of cost) for infrastructure including roads, public open space, community purpose sites and drainage reserves or the construction of infrastructure which is transferred to the relevant government agency upon completion. Do not assume that the demands of an authority for the ceding of land free of cost is necessarily lawful even if they seem justified.

For monetary contributions, the amount that you may be required to pay toward developer contributions will depend on the particular developer contribution scheme and when your liability to make those developer contributions arises. As a general rule, the infrastructure that forms part of the development contribution scheme must be connected to the development area and all development contribution items must be clearly listed or identified in a development contribution scheme.

For example, a DCS may provide for adjustments in liability and entitlements between landowners in a scheme, depending on how much land or cash they have contributed. Calculating the adjustments can be problematic, partly because of the complexity of the formula for determining liability. The valuation of land contributions and the cost of infrastructure works are often the subject of disputes.

3. How can I find out about my liability to pay developer contributions prior to purchasing land?

All development contributions must be clearly identified. These developer contributions are typically found within a local government planning scheme and within a report specifically applicable to a development contribution area. The method of calculating development contributions should be clearly set out within these documents.

4. Is there a way to challenge my developer contributions? 

Typically you have an opportunity to seek review of the developer contributions initially with the relevant local government or service provider. Following that review you may seek a further review in the State Administrative Tribunal or in private arbitration depending on the nature of review and the specific infrastructure items in question.

5. Guidance – legal issues

Development contributions can have a large impact on the viability of a project. We recommend seeking legal advice on your obligations to make developer contributions, the quantum of those contributions, whether those contributions have been correctly calculated and when the payment of the contribution is triggered. Our capability statement (view here) provides further details of the types of matters we have assisted with. If you would like to discuss this with us, please contact us by telephone on (08) 6460 5179 or by email at admin@glenmcleodlegal.com.

Glen McLeod Legal would like to thank you all for your continued support in 2021. We will be closed from 25 December 2021 and will re-open on Monday 10 January 2022.

We wish you a wonderful festive season.

An aerial view of a roundabout

In general terms, section 159 of the Planning and Development Act 2005 (WA) allows an earlier subdivider of land, who constructs or provides a road for the purposes of the subdivision, to recover half of the costs of that road from a later subdivider of land who makes use of the road.

  1. I am ‘the earlier subdivider’ – do I have a claim against the ‘later subdivider’?

There are three limbs to making a claim which the earlier subdivider must show. First, does the later subdivider have use of an existing road? Second, has the earlier subdivider contributed to or borne solely the cost of providing or upgrading a road, with a common boundary to their subdivided land? Third, has the later subdivider contributed to the cost of the road. Whilst these limbs may appear simple to establish, they have been the subject of extensive judicial commentary and legal interpretation which impact on whether there is a claim against the later subdivider.

  1. How quickly do I have to make a section 159 claim?

Under section 160 of the Planning and Development Act 2005 (WA), a claim brought pursuant to section 159 must be commenced within 6 years from the date of the later subdivision. Section 161 clarifies that the ‘date of the later subdivision’ is the date on which the Western Australian Planning Commission endorses the diagram or plan of survey relating to the later subdivision.

  1. How much money could I recover?

Section 159(1) provides that the earlier subdivider  can recover “one-half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road…”. There are various factors which are taken into account to calculate ‘one half’, including land value and construction costs. These calculations are often not straightforward and if legal proceedings are necessary, they are often because parties cannot agree as to the sum of money which should be recoverable.

  1. Guidance – legal issues

While on the face of it a section 159 claim may be simple, there are many issues of interpretation and fact which could affect whether a claim can be made and if so, how much money could be recoverable. Whether you are considering making a section 159 claim against a later subdivider or whether a claim has been made against you, we recommend seeking legal advice at an early stage to navigate this complex area of planning law.

If you would like to discuss a section 159 claim with us, please contact us by telephone on (08) 6460 5179 or by email admin@glenmcleodlegal.com.

Glen McLeod Legal is delighted to announce the admission of Emiko Watanabe to the Supreme Court of Western Australia. Emiko’s admission was moved by Glen McLeod on 5 November 2021.

Emiko has been a valued part of the Glen McLeod Legal team since March 2020 and we look forward to watching her growth in the legal profession.

An aerial photo of residential development and agricultural land separated by a main road

With the growing demand for inner-city living and urban encroachment on the rural fringe there are many considerations for balancing competing demands from existing developments and new proposals. As new developments arise, these often come into conflict with existing land uses including potential dust, noise, odour and amenity impacts.

  1. A new development proposal will create a conflict with an existing land use – what can I do?

Where a development proposal has been advertised, it is possible to make a submission to the relevant local government, the Western Australian Planning Commission (WAPC) or the Development Assessment Panel (DAP) on matters that affect your interests.

It is also possible to make an application for a deputation at a local government council meeting, WAPC meeting or DAP meeting to inform decision makers of your concerns and the impacts of any land use conflict that may arise.

  1. Can land use conflicts occur between existing uses?

Yes, land use conflicts can also arise between two existing land uses. For example, land use conflict can arise where an existing land use expands or becomes more intense or it simply becomes intolerable to the neighbouring land users.

The most common examples of land use conflicts are between more sensitive uses such as ‘Residential’ and ‘Retail’ uses and ‘Industrial’ or ‘Rural’ land uses which often cause emissions of noise, dust or odour.

  1. I want to purchase or develop property – how can I know if there are potential land use conflicts that may arise?

A local government or a planning authority has the power to impose a notification on title as a condition of development approval, where it considers it desirable that prospective proprietors of the land should be made aware of a factor affecting the use or enjoyment of the land or part of the land. A notification on title can be imposed to make prospective residents aware of potential dust, noise, odour and amenity impacts that may not otherwise be obvious from a physical inspection of the land itself. For further details on how notifications on titles may operate, please see our previous blog articles on potential odours and transport noise and potential impacts to views.

There may also be relevant State planning and environmental policies (e.g. buffers and separation distances that apply to certain industries) that need to be considered to avoid land use conflict, which may affect the development potential of your property.

  1. Can I challenge conditions that are placed on a development approval in relation to land use conflicts?

Conditions can be challenged at the draft conditions stage or once the conditional approval has been granted by lodging appeal proceedings at the State Administrative Tribunal.

In relation to planning decisions, only the applicant or the owner of land in relation to a development approval can appeal the conditions of a development approval.

In relation to DAP decisions, only the person who has made a DAP application can appeal any condition imposed by a DAP. In either of the above cases, the appeal must be lodged within 28 days of the date on which the decision making authority gives notice of the decision.

If there are review proceedings in the State Administrative Tribunal, a third party who has a sufficient interest in the matter may be able to make submissions. See our blog article on becoming involved in planning proceedings.

  1. Guidance – legal issues

If you would like to protect your interests and ensure your rights are not unduly impacted, we recommend you seek legal advice regarding your legal and alternative avenues.

Development approval from the local government or the Western Australian Planning Commission will not exempt you from the requirement to obtain environmental approvals in relation to dust, noise or odour. We recommend you seek legal advice in relation to the need for both planning and environmental approvals.

Our capability statement (view here) provides further details of the types of matters we have assisted with. We would be pleased to discuss your matter further with you. We can be contacted by telephone on (08) 6460 5179 or by email at admin@glenmcleodlegal.com.

A curving facade of windows

There are generally no third-party appeal rights in relation to planning decisions in Western Australia. Only the applicant for planning approval or a person to whom a direction or notice is given by a planning authority may appeal to the State Administrative Tribunal (SAT). In some limited circumstances it may also be possible to seek judicial review of the planning decision.

  1. Can I become involved in State Administrative Tribunal planning proceedings as a third party?

Involvement in SAT planning proceedings as a third party can occur in limited circumstances. Third parties may become involved by intervening under section 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The third party will need to seek the SAT’s leave to intervene in the proceedings. Whether the SAT will grant leave will depend on a number of factors, such as demonstrating a ‘sufficient interest’ in the matter or assisting the SAT in reaching the ‘correct and preferable decision’. These factors have been the subject of recent judicial commentary. We recommend seeking legal assistance to prepare written or oral submissions to seek the leave of the SAT.

In some circumstances, where a third party is not given leave to intervene, it may nonetheless be possible for the third party to make submissions in respect of a planning application under section 242 of the Planning and Development Act 2005 (WA). It is also necessary to apply for the SAT’s leave to do so.

  1. Can I be involved in a SAT mediation as a third party?

Usually, mediation is a confidential process only involving the parties to the proceedings. In some circumstances it is possible to obtain the SAT’s and the parties’ agreement for a third party to participate in the mediation usually only to a limited extent. Leave to participate in a mediation should generally be sought at a directions hearing.

  1. What rights does a third party have if it is allowed to intervene in SAT proceeding?

If the SAT grants leave for a third party to intervene in proceedings, then that third party acquires the same rights and responsibilities as the other parties. This generally means that the intervening party can give evidence, call witnesses and ask questions of the witnesses. The SAT may impose conditions or restrictions on what an intervening party can or can’t do.

  1. Seeking judicial review of planning decisions

In some limited circumstances it may be possible to seek judicial review of a planning decision in the Supreme Court of Western Australia. Judicial review requires the identification of a legal error and cannot stray into the merits of the planning decision.

  1. Guidance – Legal issues

If you want to become involved SAT proceedings as a third party it is advisable to seek legal advice. A lawyer will be able to assist you with submissions to seek leave to be joined as a party or to intervene. This is because the submissions should address the legal principles that guide whether a person can be joined or intervene. A lawyer can also assist you with making submissions, attend the mediation with you or on your behalf or help you prepare your case for a final hearing.

It is also advisable to seek legal advice to consider whether it is possible to seek judicial review of a planning decision. This is because there is a higher bar for seeking judicial review than there is for review proceedings in the SAT.

Our capability statement (view here) provides further details of the types of matters where we have assisted with challenging planning decisions. If you would like to discuss your ability to become a third party in SAT proceedings, please contact us by telephone on (08) 6460 5179 or by email admin@glenmcleodlegal.com.