Glen McLeod Legal is pleased to have adopted the Law Council of Australia’s ‘Equitable Briefing Policy’.

Whilst the firm has always been conscious and supportive of briefing women barristers, it has decided to formalise this signing up to the policy.

The policy is intended to drive cultural change within the legal profession by encouraging firms to make all reasonable endeavours to brief or recommend women barristers with relevant seniority and expertise in the relevant practice area.

An open field with one half covered in grass and the other half dirt

City of Swan v All Earth Group Pty Ltd [2021] WASC 279

Background

All Earth Group Pty Ltd (Respondent) were in possession of excess fill material from a recently completed earthworks project. The Respondent offered the fill material to nearby landowners and as a result delivered to and roughly spread the fill material on three neighbouring properties.

The City of Swan (Appellant) unsuccessfully prosecuted the Respondent on three charges, for each property, of carrying out works on land in the City of Swan Local Planning Scheme No.17 (LPS 17) scheme area without having obtained the development approval and thereby contravening section 218(a) of the Planning and Development Act 2005 (WA) (PD Act) which provides that person who contravenes the provisions of a planning scheme commits an offence.

In this case, the relevant provision of LPS 17 was clause 60 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions). The Deemed Provisions are to be read as part of LPS 17. Clause 60 provide that a person must not commence or carry out any works on, or use, land in the Scheme area unless they have obtained the development approval of the local government under the scheme. The Respondent was acquitted of all three charges.

The Appellant sought leave to appeal against the acquittals. The application for leave to appeal was ordered to be heard at the same time as the appeal.

Issues

Three preliminary issues related to whether:

  • the City was trying to run a new case on appeal;
  • if so, should this be permitted; and
  • the magistrate found that the Respondent’s actions required development approval.

The main issues related to the statutory construction of ‘works’ and ‘person’ in clause 60 of the Deemed Provisions.

Held

As to the preliminary issues, Archer J concluded that the City was not trying to run a new case on appeal and that the magistrate did find that the Respondent’s actions required development approval.

On analysis of the Deemed Provisions, other common law interpretations and relevant similar provisions in the Building Act 2011 (WA) it was found that ‘works’ include some action which physically changes the land and constitutes a ‘development’ having regard to the degree of physical alteration (as set out in Ivo Nominees[1]) the permeance of the alteration and all of the circumstances.

A ‘person’ for the purposes of clause 60 of the Deemed Provisions will capture all those who carry out works on land which would fall within the definition of ‘works’, regardless of whether the works done by that person are part of a larger scope of works which would also fall within that definition of ‘works’. Anyone who does ‘works’ without first obtaining development approval will commit an offence.[2]

Archer J held that the Respondent’s delivery and rough distribution of fill material to all three properties constituted ‘works’ which physically altered the land with a level of permanence constituting a development. The Respondent was responsible for ensuring that they were carrying out works under a development approval. The Appellant was granted leave to appeal, and the appeal was allowed.

Conclusion

The classic definition of development was set out in the University of Western Australia v City of Subiaco (1980) 52 LGRA 360. Burt CJ held at [363]-[364]:

In my opinion the definition of ‘development’ in the Town Planning and Development Act makes use of and encompasses two ideas. The first is the ‘use of the land which ‘comprises activities which are done in… or on the land but do not interfere with the actual physical characteristics of the land’ and the second being ‘activities which result in some physical alteration to the land which has some degree of permanence to the land itself’

How much physical works are sufficient to constitute development is a question of fact and degree. Clearly mowing a lawn is too trivial but clearing of vegetation can constitute development.[3]

 

[1] Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45.

[2] Unless works are exempt from requiring development approval, see clause 61 of the Deemed Provisions.

[3] Palos Verdes Estates v Carbon (1991) 6 WAR 223, 235 (Malcolm CJ).

An empty billboard in a field

Carrooda Pty Ltd v City of Gosnells [2021] WASAT 73

Background

Carrooda Pty Ltd and Sansom Nominees Pty Ltd (Applicants) submitted a development application (Application) to the City of Gosnells (Respondent) under the City of Gosnells Local Planning Scheme No. 6 (LPS 6). The development application was for the erection of a 4.45m by 18.99m, double-sided, LED, pylon sign (Sign) located at 3 Austin Avenue, Maddington (Property) and would have frontage to Albany Highway. The Respondent rejected the application on 17 March 2020. On 21 April 2021, the Applicants commenced proceedings in the Tribunal seeking the review of the decision under section 252(1) of the Planning and Development Act 2005 (WA) (PD Act).

During the proceedings, the Applicants sought leave to change the features of the sign to a two panel, 13.07m high sign and the location of the sign. On the orders of the Tribunal, the parties filed an agreed statement of facts. In the statement of facts design of the sign was again amended to be one-sided and reduced in height to 12m. The Respondent contended that change to the design of the sign and its location (Proposed Changes) are substantially different to the original Application and the Applicants were required to lodge a new development application.

Issues

As a preliminary issue, the Tribunal was required to consider whether the Proposed Changes were minor or substantially different and whether the Application remained the same in substance or the amendments were so sweeping that they resulted in effectively a new development application following the test in Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1983) 84 LGERA 71.

Held

In its decision, the Tribunal noted that the land use and land required for the Amended Sign remained the same. The Tribunal also noted that the amended height of the sign will be lower than its original height by less than 10%. The Tribunal considered that these changes to the Application were not significant. The most significant departure from the Application was the location of the sign. However, the Tribunal noted that the new proposed location of the sign was within 50m of the original location and still on the Albany Highway frontage.

Having regard to the above, the Tribunal found the Proposed Changes would not substantially alter the signs appearance to passing motorists or neighbouring properties.

In light of this, the Tribunal held that the Proposed Changes did not substantially change the Application. The Applicants were granted leave to amend the Application in line with the Proposed Changes.

A photo of a building facade with light brown bricks and windows. The windows have red bricks at the top as a design feature.

Sanur Pty Ltd and City of Subiaco [2021] WASAT 90

This was an appeal to the State Administrative Tribunal considering the issues of whether the City of Subiaco could lawfully issue two building orders and two heritage conservation notices with respect to two neighbouring properties that were not fit for human occupation, in a dangerous state and located within a heritage area under the town planning scheme.

Background
The applicant, Sanur Pty Ltd (Sanur), engaged a builder to install hoardings to the facade of their building on land in Subiaco (Property). The builder noticed cracks in the masonry and that the façade was leaning towards the street. Sanur engaged an engineer to inspect the Property and provide recommendations in a report (Report). An inspection at Sanur’s neighbouring property (Wintermist Property) also showed signs of similar cracking. Subsequently, Sanur lodged a development application for the demolition of both the Property and the Wintermist Property. The City issued a building order to Sanur (Building Order) requiring the design and installation of a temporary support structure for the Property’s façade. The City also issued a notice of proposed building order for the Wintermist Property.

Sanur applied to the State Administrative Tribunal (Tribunal) for review of the City’s decision to issue the Building Order. During the proceedings the parties agreed that the City would procure the design of a temporary structure to support the Property’s façade and that Sanur would install it.

The City subsequently issued a heritage conservation notice to Sanur (Conservation Notice) in respect of the Property on the basis that it was not being properly maintained and required repairs. Shortly thereafter, the City also issued a building order (Wintermist Building Order) and a heritage conservation notice in respect of the Wintermist Property (Wintermist Conservation Notice). Both notices in respect of the Wintermist Property required the erection of a temporary support structure for the façade. Sanur also sought review of the City’s decision to issue both conservation notices.

Issues

There were two issues in dispute. The first issue was whether both building orders could be lawfully made under section 112(2)(g) of the Building Act. The second issue was whether under clause 13(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) Sch 2 (Deemed Provisions) the Property and Wintermist Property were a ‘heritage place’ that were not being ‘properly maintained’.

Held

In respect of the first issue, the Tribunal considered whether the Property and the Wintermist Property were ‘not fit for [human] occupation’ as per s 112(2)(g) of the Building Act. The Tribunal held that expert evidence stating that the façades may collapse at least in part, due to high winds and earth tremors, was sufficient to establish that the properties were not fit for human occupation and in a dangerous state.

There were two limbs to the second issue: (1) whether the properties were a ‘heritage place’; and (2) whether they were not ‘properly maintained’. In respect of the first limb, Sanur argued both heritage conservation notices were not lawfully issued because the properties were not a ‘heritage place’ as defined in cl 13(1) of the Deemed Provisions. That is because the properties were not ‘on the heritage list or located in a heritage area’. The City argued the properties were both a ‘heritage place’ because of a Council resolution which declared the ‘Rokeby Road and Hay Street Heritage Area’ as a ‘conservation area’ under the town planning scheme. The Tribunal accepted the City’s argument held that because both properties were within a heritage area under the town planning scheme they were therefore both a ‘heritage place’.

In respect of the second limb, the City argued Sanur had not ‘properly maintained’ the properties by not acting on the building notice, which resulted in some deterioration on the roof and prompted Sanur to apply for the demolition of both properties. Sanur submitted that the requirement for the properties to be ‘properly maintained’ was intended to prevent ‘demolition by neglect’ which is a longer term failure to maintain the properties. Both parties’ heritage experts agreed that the properties had been well maintained. As a result, the Tribunal found that the properties had been ‘properly maintained’ within the meaning of clause 13 of the Deemed Provisions. Because the second limb could not be made out, the Tribunal held that the heritage conservation notices for both properties were not lawfully issued.

As a result, the Tribunal affirmed both building orders, but set aside both heritage conservation notices. 

Screenshot of the first page of the case summary article.

Lea Hiltenkamp and Emiko Watanabe of Glen McLeod Legal have recently published an article with a summary of the case Asphaltech Pty Ltd v Shire of Capel [2021] WASAT 25 in the Australian Environment Review (2021, Volume 36, Number 2).

The case was in relation to a development application for a proposed asphalt production plant, which was to be co-located within an existing extractive industry area. The development application was refused by the Shire of Capel due to the potential for adverse amenity impacts on nearby surrounding land uses following a narrow reading by the State Administrative Tribunal of the applicable strategic framework. The strategic framework was intended to protect the extraction of strategic resources in the area; however, this protection did not extend to the manufacturing of products from the extracted materials, especially where there was a significant reduction in amenity of the surrounding locality.

The full article is available to view via Lexis Advance with a print version to follow.

Screenshot of the first page of the case summary article.

Jess Hamdorf on the left holding her award and Robyn Glindemann on the right. Both are smiling.

Presentation of award by Ms Robyn Glindemann, Chair of the Law Council of Australia’s Environmental Law Group.

The Mahla Pearlman Oration and award, honour the memory of the late Honourable Mahla Pearlman AO, the former Chief Judge of the Land and Environment Court of New South Wales (1992-2003), and former President of the Law Council of Australia (1989-90).

This year’s event included the presentation of the 2021 Mahla Pearlman Australian Young Environmental Lawyer of the Year award to Jess Hamdorf of Glen McLeod Legal in recognition of her exceptional contribution to planning and environmental law, including her presidency of the National Environmental Law Association.

The 2021 Oration was delivered by Zoom to an online gathering of 160 people Australia-wide by the Governor of New South Wales, Her Excellency the Honourable Margaret Beazley AC, QC. Her Excellency provided a thought-provoking oration on the emerging significance of space debris and international law frameworks that address the sustainability of outer space.

A photo of Jess Hamdorf smiling and wearing a black blazer and white top with Northbridge in the background. Her photo is next to a block of text with the Law Council of Australia logo and text congratulating Jess

We are very pleased to announce that Jess Hamdorf of this firm has been awarded the 2021 Mahla Pearlman Australian Young Environmental Lawyer of the Year award. The award is in recognition of Jess’ exceptional legal work in the environmental and planning space. This is in addition to her outstanding contribution to the National Environmental Law Association, at both a state and national level. Well done Jess!

Chelsea is standing in front of the NELA banner and a projector screen. She is smiling and holding her hands together in front of her.

Chelsea is standing in front of the NELA banner and a projector screen. She is smiling and holding her hands together in front of her.

On 17 June 2021, the National Environmental Law Association (WA) hosted the Recent Changes in the Waste Industry seminar held at the University of Western Australia E-Zone. The seminar brought together leading specialists from industry, local government and the legal profession to present their perspectives on the recent changes in the waste industry, including the five waste related consultation papers which were released by the Department of Water and Environmental Regulation last year.

The seminar was opened by Lea Hiltenkamp of Glen McLeod Legal and National Environmental Law Association (WA) Vice President and chaired by Chelsea White of Glen McLeod Legal.

The event was well attended and provided a forum for engaging and informative discussion on practical opportunities and challenges for the future of the waste industry.

Glen McLeod Legal is pleased to announce our move to a new office space in London House in the heart of the City of Perth’s west end. The firm will be celebrating its 10th year anniversary this year and this new location is the start of another chapter.

Built in 1985, London House is an iconic Perth building with an award-winning grand lobby that combines a traditional and modern aesthetic. The building features a unique red brick façade and is the tallest red brick building in the City of Perth. The building was one of several quality developments of Lord Robert McAlpine and designed by the architects Oldham Boas and Ednie Brown.

Glen McLeod Legal is now located at:
Level 8, London House
216 St Georges Terrace
Perth WA 6000

Emiko Watanabe opening the third of the Superwomen Series event with Belinda Wong, Magistrates Hughes and Padmanabham in front of a crowd

On 1 June 2021, Emiko Watanabe of Glen McLeod Legal opened the event Magistrates Wendy Hughes and Alana Padmanabham in Conversation as part of Asian Australian Lawyers Association (AALA) WA’s ‘Superwoman Series’. The event was jointly hosted by the AALA WA and The Piddington Society and was facilitated by Belinda Wong, AALA WA President. The evening was a great opportunity to hear from their Honours speaking frankly about their experiences as Asian Australian women in criminal law and on the bench, cultural representation in the law and what justice means to them.