Coffee in our KeepCups

The staff at Glen McLeod Legal are taking part in the Plastic Free July challenge. Plastic Free July is a yearly challenge, supported by the Western Australian Waste Authority, where people give up single use plastic during the month of July. The aim is to raise awareness on the amount of unnecessary single use plastic we use in our day to day lives.

The Glen McLeod Legal team made easy changes such as:
– continuing to use KeepCups during our morning coffee run;
–  replacing all teabags with loose leaf tea (it tastes better);
– taking reusable containers when ordering take-away lunch;
– saying no to plastic water bottles; and
– avoiding the use of plastic sticky tabs.

In 2018 over 120 million people took part in the challenge.

green mountains

Offsets are a problematic area for both planning and environmental decision makers and proponents. Offsets are actions that provide environmental benefits which counterbalance the significant residual environmental impacts or risks of a project or activity. Unlike mitigation actions which occur on-site as part of a project and reduce the direct impact of that project, offsets are undertaken outside of the project area and counterbalance significant residual impacts.

Vegetation offsets may be used where a proponent cannot avoid the removal of vegetation under a proposal. Instead, unavoidable environmental impacts are offset by conserving or rehabilitating another area of vegetation which is of better quality. Western Australia has an environmental offsets policy (Policy) works in this manner and is supported by the WA Environmental Offsets Guidelines (Guidelines).

Some criticisms which have been levelled at the Policy include:

    1. there is no generally agreed definition for measuring the effectiveness of offsets;
    2. the method of calculating the required offset contribution is contentious;
    3. even though offsets complied with their approval conditions, nothing is done to demonstrate or measure the ecological outcomes of the offset; and
    4. approval holders are no longer responsible for the management and monitoring of offsets once the approval conditions had been met and as a result offsets may not be managed in the longer term.

New and creative offset approaches have been developed which potentially address these concerns. Such approaches include the Pilbara Environmental Offsets Fund (Pilbara Fund) and the Great Victoria Desert Biodiversity Trust (Biodiversity Trust).

The Pilbara Fund is a state government operated conservation fund. It receives payments from proponents who are active in the Pilbara and who cannot otherwise mitigate the impacts of their operations on the environment. The payments from proponents are used for conservation work in the Pilbara, and where possible, are used to build on existing local conservation projects. This allows for long-term continuity in offset projects. The fund is also unique in that it allows for multiple offset payments to be combined in order to deliver larger scale projects.

The Biodiversity Trust was established by a private entity, as part of its offset strategy for a large scale gold mine in Western Australia. A range of parties had input into the structure and operation of the Biodiversity Trust that has resulted in the development of a Bioregional Management Plan for the Great Victoria Desert, which delivers on-ground environmental and conservation management.

In conclusion, whilst the WA Policy and Guidelines offer an option for environmental offsets, it is clear that it is not the only possibility. Other creative offset solutions, such as the Pilbara Fund, Biodiversity Trust show that alternative avenues for offsets can be pursued.

We are delighted to announce that our two law clerks, Chelsea White and Lea Hiltenkamp, have continued with Glen McLeod Legal as law graduates in 2019. We are pleased that they have decided to begin their careers in the field of environmental and planning law and look forward to their admission to the legal profession later in the year.

We are delighted to announce that Jess Hamdorf and Connor Fisher have been advanced to the position of Associate at Glen McLeod Legal. This is in recognition of their wide ranging and growing competence in planning and environmental law. Congratulations to you both!

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.