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.

Photo of road passing through native vegetation

Western Australia’s environmental laws are set to change with the passage of the Environmental Protection Amendment Bill 2020 (WA) through parliament in 2020.

The most substantive amendments to the Environmental Protection Act 1986 (WA) (EP Act) are not yet in operation. In anticipation of those pending amendments, this article summarises the key change affecting licence holders of prescribed premises and landowners who wish to carry out native vegetation clearing.

Key changes

  • New single licence approval process for ‘controlled work’ or ‘prescribed activity’ to replace existing licence and works approval process (new Part V Division 3);
  • New opt-in referral system for clearing where clearing permits may not be required (amended Part V Division 2);
  • New type of environmental covenant – the ‘environmental protection covenant’ that may be entered into as a condition of clearing permits or environmental impact assessment approval (new Part VB); and
  • Declaration of environmentally sensitive areas to be made under regulations (new section 51B) replacing existing declaration by notice.

Changes to licences and works approvals

The most significant changes to the EP Act are in relation to licence and works approval. Environmental regulation will no longer focus on ‘prescribed premises’ but rather ‘prescribed activities’, which targets activities that cause pollution and the person who has the responsibility for such activities. ‘Prescribed activities’ will include the kinds of activities that currently cause pollution or environmental harm under the EP Act.

The new Part V Division 3 enables the Department of Water and Environment Regulation (DWER) to grant a licence for carrying out ‘controlled work’ or a ‘prescribed activity’ (or both). There will now be a single ‘licence approval’ process and there will no longer be a separate works approval and licence application process. In addition, the requirement that a licence is only granted to the occupier of a premise will no longer apply. Instead, any person who carries out a prescribed activity or controlled work must be authorised by a licence otherwise they commit an offence.

The existing defences have not changed in substance. For example, it is a defence to a prosecution if it can be shown that the activity in question was carried out in accordance with a licence. However, a new provision clarifies that a licence does not necessarily authorise an emission unless the emission is specified in the licence as an authorised emission. This means that licence holders need to be aware of what emissions are specifically included in their licence and consider whether additional emissions should be included. Otherwise, licence holders may not be able to rely on the defence.

A new offence provision also allows a person other than the licence holder to be liable for contravening licence conditions when carrying out work or an activity that is authorised by a licence. A new defence of ‘lack of knowledge’ may apply if a person other than the licence holder, such as an employee or a contractor, did not know or could not reasonably be expected to have known the licence requirements.

New offence and defence provisions broaden who may be liable for the contravention of a licence or licence conditions. It is no longer only the licence holder or occupier of the premises that may be liable for an offence, but any person who carries out work. This could include contractors, consultants or employees associated with the licence holder’s operations. If an employee or contractor is alleged to have contravened a licence or conditions, a licence holder may rely on a defence of ‘due diligence’ if they had taken reasonable precautions and exercised due diligence to prevent the offence.

Clearing permits – new referral system

Currently, clearing of native vegetation is an offence unless the clearing is carried out in accordance with a clearing permit or for an exempt purpose. However, the amendments address situations that have arisen where clearing of native vegetation may be of a trivial nature for which an exemption does not apply but may not have a significant effect on the environment. Part V Division 2 of the EP Act will have a new referral system for proposed clearing that will allow for landowners or proponents to carry out clearing of native vegetation in particular circumstances without needing to apply for a clearing permit.

A person who proposes to carry out clearing can make a referral application to the Chief Executive Officer (CEO) [that is the Director-General] of DWER to determine whether a clearing permit is required. In determining a referral application, the CEO must have regard to the size of the area, known or likely environmental values, scientific knowledge and whether conditions are likely to be required to manage environmental impacts. There will be further non-statutory guidance developed by the DWER to assist with understanding these criteria.

This new referral system is aimed at reducing the administrative burden on proponents carrying out clearing that may not have a significant effect on the environment.

We note that this referral process is not available for land that is subject to an agreement to reserve, a conservation covenant or an environmental protection covenant.

Environmental protection covenants

The new Part VB allows the CEO of the DWER to enter into environmental protection covenants as a condition made for a Part V clearing permit or a Ministerial Statement in relation to a Part IV EIA proposal. The condition may require a person to enter into an environmental protection covenant, where obligations may be positive and negative. The written consent of every owner and occupier of the land is required before a covenant can be entered into.

Declaration of environmentally sensitive areas under regulations

An ESA typically impacts landowners in agricultural regions, and it may be difficult for prospective purchasers to identify whether the land they wish to purchase is impacted by an ESA. An ESA can now be declared under regulations, rather than by the Minister for the Environment publishing a notice. Declaring an ESA under regulations will allow for consultation requirements to be tailored when an ESA may need to change. This may improve the current system because all affected landowners will be notified and given the opportunity to comment prior to the declaration taking effect.

The amendments are also intended to simplify and improve the current system for land subject to an ESA, particularly in in regard to the clearing native vegetation. The new clearing referral system as discussed above will apply to land subject to an ESA and may allow landowners to carry out trivial clearing of native vegetation despite the ESA declaration.

 

If you would like to discuss any of these changes to the EP Act, please contact us on (08) 6460 5179 or through admin@glenmcleodlegal.com

Aerial photo of a colourful playground within a neighbourhood precinct

Development contributions are collected by local governments or service providers to cover the cost of new infrastructure which is necessary as a result of subdivisions and new development. They are levied through Development Contribution Plans (DCPs). Over the years, developers and landowners have encountered significant issues with the preparation, management and implementation of DCPs.

The revised version of State Planning Policy 3.6 Infrastructure Contributions (SPP 3.6) has recently been released and is effective from 30 April 2021. It is intended to set out the principles and requirements that apply to the collection of development contributions across all developments which result in a demand for new infrastructure and services.

SPP 3.6 is supported by the SPP 3.6 Infrastructure Contributions Guidelines (SPP 3.6 Guidelines), which provides further guidance on the preparation and operation of DCPs.

Key changes

Community infrastructure

A cap of $5,000 per dwelling on contributions for community infrastructure has been imposed. Community infrastructure has a defined meaning and includes items such as local sports, cultural and recreation facilities, library buildings and community-run child care/after school centre buildings.

This means that any additional funding required for community infrastructure cannot be levied from landowners, but rather must come from other sources such as local government revenue, as well as State and Federal funding. This is relevant because community infrastructure is to be built to a standard that would meet ‘basic and reasonable community needs’. Any community infrastructure delivered to a higher standard and resulting in higher cost would need to be met by the local government or relevant agency and may not be included as an infrastructure contribution requirement.

SPP 3.6 has been updated to provide a more specific list of development infrastructure and community infrastructure items for inclusion in a DCP and the standard requirements of each item.

Early acquisition of public purpose sites

A critical change in the revised SPP 3.6 is the introduction of a process for the early acquisition of public purpose sites. This means that in certain circumstances, the Department of Planning, Lands and Heritage (DPLH) may pre-fund the acquisition of land which has been identified for public purposes in a structure plan. This is a laudable initiative provided it works in practice. The subtext of the reference to conservation category wetlands, Bush Forever or easements is essentially that such land will be acquired or sterilised free of cost to the State, local government other landowners. If such land is utilised for community purposes or saves other costs, such as public open space contributions, then the original owner should be credited with the contribution.

This has been introduced with the stated objective of prevent landowners whose land has been identified for public purposes from being unduly disadvantaged by their inability to develop or sell the remainder of their land, which is  required for public purposes. Any negotiations regarding early acquisition by the DPLH will have regard to any existing constraints on the land, such as conservation category wetlands, bush forever or easements.

Extended lifespan of development contribution plans

The maximum lifespan of a DCP is 10 years, however in limited circumstances a longer lifespan up to 15 years may be considered. A longer lifespan can only be considered if there is sufficient justification, such as a shortfall in funds collected due to a reduction in the rate of development within the development contribution area or where there has been a change in the scope of infrastructure items funded through a DCP.

One obvious effect of a longer lifespan of 15 years is that it will extend the timeframe within which infrastructure can be completed. This could impact buyers who purchase property at an early stage within an area affected by a DCP.

Triggers for paying cost contributions

The triggers for the payment of cost contributions remain the same (that is, upon the first subdivision or development approval, before the WAPC endorses its approval on the relevant deposited plan or strata plan or other triggers identified in the local scheme). However, there is a new provision which requires a local government to consider whether minor or incidental types of development, such as the clearing of land or erection of a boundary fence, or a change of use which does not generate additional infrastructure demand, can be excluded from triggering liability to pay a development contribution.

Dispute resolution

The SPP 3.6 Guidelines acknowledges that that the pathway of seeking an arbitrated outcome in accordance with the Commercial Arbitration Act 1985 has rarely been used due to the complexity and costs associated with this process.

New provisions are proposed to be included in the Planning and Development Local Planning Scheme Regulations 2015 which would permit rights of review to the State Administrative Tribunal in situations where: (a) there is disagreement about the amount of the contribution required to satisfy a related condition of subdivision or development approval; and (b) a decision of a local government regarding the timing for refunding credits.

Transitional arrangements

Existing DCPs will continue to remain valid for the lifespan of the DCP. However, where DCPs do not have a nominated lifespan, there is now a three-year transition period for amending existing DCPs. Existing DCPs must adhere to all monitoring and reporting requirements of the new SPP 3.6.

Landowners and developers should be aware that DCPs that were prepared prior to 30 April 2021 and have been submitted to the WAPC for approval will be considered and assessed against the 2009 version of SPP 3.6. However, such DCPs will still be required to adhere to all operational, monitoring and reporting requirements of the new SPP 3.6.

 

The SPP 3.6 and SPP 3.6 Guidelines are available on the DPLH website here. If you would like to clarify any aspect of SPP 3.6 or discuss how it may apply to your land, please contact us by telephone on (08) 6460 5179 or email at admin@glenmcleodlegal.com.

The team from Glen McLeod Legal celebrated the capstone event to Law Week – the Lawyer of the Year Awards cocktail function. The firm sponsored the Lawyer of the Year (more than five years’ experience) award. Congratulations to Peter Le who won the award and to all other finalists!

 

Team Glen McLeod Legal, left to right: Lea Hiltenkamp, Glen McLeod, Chelsea White, Gary the therapy dog and Emiko Watanabe in front of the bell tower at the Law Access Walk for Justice

This morning Glen McLeod, Lea Hiltenkamp, Chelsea White (with Gary the therapy dog) and Emiko Watanabe joined over 400 members of the legal profession walking in person and virtually around the state for the Law Access Walk for Justice on National Pro Bono Day as part of Law Week 2021. The event celebrates the pro bono contributions of the legal profession and raises funds for Law Access, the state’s pro bono referral service.

Law Access is a community legal service of last resort that co-ordinates individuals and community organisations seeking legal assistance to pro bono lawyers. The organisation assists some of the most vulnerable people in WA, who would otherwise be unable to obtain legal assistance. If you would like to make a donation to Law Access, you can click here to our team fundraising page.

 

Team Glen McLeod Legal, left to right: Lea Hiltenkamp, Glen McLeod, Chelsea White, Gary the therapy dog and Emiko Watanabe in front of the bell tower at the Law Access Walk for Justice

 

Law Week 2021 banner

The Law Society of WA’s Law Week is the Western Australian legal profession’s annual celebration of law and justice in the community and will run from 17 to 21 May 2021.

Glen McLeod Legal is pleased to be the sponsor of the Lawyer of the Year Award (more than 5 years’ experience).

The winner of the award will be announced at the Law Week Cocktail event on 21 May 2021. We hope to see you there.

To view the Law Week 2021 programme, click here.

Law Week 2021 banner

Aerial view of city intersection with trees in the middle

As development in the Perth and Peel regions continues to increase in order to support a growing population, there is the need for planning instruments to offer design guidance for areas intended to accommodate a large population and multiple land uses. These areas are defined as ‘precincts’ in State Planning Policy 7.2 – Precinct Design (SPP 7.2) gazetted earlier this year.

Precincts require a higher level planning and design focus due to their complexity and include activity centre, station precincts and urban corridors. SPP 7.2. became operational on 19 February 2021 and is intended to assist in the planning and design of these precincts. Detailed guidelines have been developed to provide support for the implementation of SPP 7.2 (Guidelines).

The gazettal of SPP 7.2 will necessitate future planning scheme amendments to allow new design standards and possibly new land zonings to be incorporated into the relevant scheme.

Integration of SPP 7.2 with existing planning framework

SPP 7.2 and the Guidelines apply to precincts throughout Western Australia and require regard to be had to State Planning Policy 7.0 – Design of the Built Environment (SPP 7.0), State Planning Policy 7.1 -Neighbourhood Design (SPP 7.1) and the Residential Design Codes (R-Codes).

Design guidance for precinct planning

Part 3 of the Guidelines contains six ‘precinct design elements’ which address the varying elements of good precinct design. The six elements are (a) urban ecology, (b) urban structure, (c) public realm, (d) movement, (e) land use and (f) built form.

When read in combination it is clear that the six precinct design elements have a number of common objectives.

First, there is a strong focus on sustainable urban development. This includes outcomes to maintain and strengthen green corridors and encourage climate-responsive building design to reduce energy demand across a precinct.

Secondly, there is a focus on promoting modes of transport other than cars. This is promoted through street and block layouts that support the provision of an active public transport network and which encourage walking and cycling. Interestingly, the Guidelines also require the design of a precinct to identify the existing and predicted proportions of transport methods (driving, public transport, walking and cycling) in order to plan for the future and to encourage the adoption of the preferred modes of transport for that precinct.

Thirdly, the Guidelines include numerous objectives which are intended to promote a sense of community and social cohesion. This includes designing public spaces which can be adapted for multiple uses and which can be altered over time as community needs change. There is also a requirement for the design of the public realm to consider and integrate cultural heritage, in particular Aboriginal history, knowledge and heritage, into the design of new precincts.

Implementation of SPP 7.2 and Guidelines

As noted above, the introduction of SPP 7.2 will require existing local planning schemes to be amendment to incorporate the new design standards and new land zonings. SPP 7.2 and the Guidelines will require development contribution plans to consider how the infrastructure necessary to meet the precinct objectives will be funded and implemented.

Local governments will also be required to review regularly precinct plans prepared under SPP 7.2 and the Guidelines to ensure that they are meeting their stated objectives and vision. The Guidelines suggest that this monitoring should occur against predetermined metrics, to ensure that the ability of a precinct to perform against the objectives and goals of the precinct can be measured.

Photograph of Lea Hiltenkamp

We are pleased to announce that Lea Hiltenkamp is a finalist in the Lawyers Weekly 30 Under 30 Awards 2021 in the Native Title, Planning and Environment category.

As a finalist, Lea has been recognised amongst the finest young lawyers across Australia. The Lawyers Weekly 30 Under 30 recognises and rewards the young rising stars within the legal industry aged 30 and under who excel in their chosen field, displaying key leadership qualities such as dedication, professionalism and eagerness to grow both themselves and their firm.

Modern Houses

On 31 March 2021, Connor Fisher, Chelsea White and Lea Hiltenkamp of this firm attended the ‘Design Matters: Medium Density Symposium’ hosted by the Association of Consulting Architects Australia and Open House Perth. The symposium focussed on the proposed Medium Density Code (Code) which will form part of State Planning Policy 7.1 – Residential Design Codes (Volume 1).

Modern Houses

Medium Density Symposium

We have previously summarised the changes proposed by the Code here.

Hosted at the new Boola Bardip WA Museum it was an animated evening at which we heard from architects, developers and landscape architects about the proposed Medium Density Code. The panel sessions offered insight from panellists about the benefits of the code, such as creating more liveable and sustainable homes, whilst also noting areas in which the Code could go further.

It also offered reflections on how the more aspirational aspects of the Code could be balanced with the interests of developers and financiers who noted concerns about the viability of this type of development on the urban fringe.

As was noted throughout the symposium, the Code is open for public consultation until 16 April 2021. If you are interested in making a submission on the Code and require assistance please contact us at admin@glenmcleodlegal.com or (08) 6460 5179.