Truck crushing bricks

Waste not, want not: Valuing waste as a resource’ (Discussion Paper) was released in September by the Department of Water and Environmental Regulation (DWER). The paper addresses two key changes to the current legislative framework, by proposing amendments to the definition of ‘waste’ and introducing  ‘waste-derived materials determinations’ (WDM Determinations).

This Discussion Paper builds on an issues paper of the same name released in June 2019 and accounts for feedback received on that paper.

Notably, the Discussion Paper proposes an amendment to the Environmental Protection Act 1986 (EP Act) to empower the Chief Executive Officer of the DWER to grant WDM Determinations. A WDM Determination will specify circumstances in which a waste-derived material would cease to be waste and would therefore not attract the waste levy.

Two types of WDM Determinations are proposed:

  • general WDM Determinations for common waste-derived materials for which contaminant thresholds are known; and
  • WDM Determinations issued on a case-by-case basis for specific people or operators.

WDM Determinations would be subject to conditions. A right of review of these conditions is proposed. The right of review would be to the Appeals Convenor.

No right of review is proposed for a refusal to grant a WDM Determination or for third parties.

To allow for the above, the definition of waste in the EP Act, Waste Avoidance and Resource Recovery Act 2007 and Waste Avoidance and Resource Recovery Levy Act 2007 is also proposed to be amended to include materials that are wholly or partly comprised of waste, or wholly or partly derived, recovered or produced from waste, unless that material is used in accordance with a WDM determination.

The Western Australian Government is currently seeking submissions on the proposed framework. The submission period closes on 18 December 2020.

2020 has been an interesting year for both waste and environmental protection reform. Glen McLeod Legal is glad to be involved in these areas.

Recently, the National Environmental Law Association, Waste Management and Resource Recovery Association of Australia and the Piddington Society hosted seminars to consider environmental law reform and opportunities and challenges in recovering construction and demolition material (C&D).

On Wednesday, Chelsea White of this firm in her role as a member of the Waste Management and Resource Recovery Association of Australia, assisted in arranging a seminar on the opportunities for reusing C&D waste in Western Australia and its interplay with the waste levy.

The following day, Lea Hiltenkamp of this firm chaired the Piddington Society’s seminar on ‘Environmental Law – are we in an era of reform?’

Both seminars included passionate and insightful presentations for leaders in the field, who gave their candid views on the current state of environmental legislation and the progress made in reusing construction and demolition products.

impact-of-structure-plans-on-the-rights and obligations of landowners

The State Administrative Tribunal (Tribunal) has clarified the nature of structure plans in the Western Australian planning system in its recent decision in Rpoint Land Pty Ltd and Western Australian Planning Commission [2020] WASAT 92.

RPoint Land Pty Ltd (Applicant) had applied to the Western Australian Planning Commission (Commission) for approval of amendments to the Anketell North Local Structure Plan (Application). The Application incorporated land both owned and not owned by the Applicant. The Application was refused by the Commission. Anketell Property Investments Pty Ltd (Proposed Intervener) sought to intervene in the proceedings as it owned land covered by the Application and was also a party to other Tribunal proceedings relating to its own proposed amendment to the Anketell North Local Structure Plan. The main contention concerned whether the Proposed Intervener had grounds to intervene by virtue of being affected by the Application.

The Tribunal found that landowners are entitled to prepare structure plans for land they do not own, provided they own some land in the structure plan area.

In its findings, the Tribunal noted that ‘a structure plan is a strategic planning document for the purposes of guiding the future exercise of discretion.’ Structure plans do not determine the final rights of landowners and as such the question of landowner consent is less intrinsic than, for example, in applications for subdivision or development applications.

The Tribunal distinguished another case involving a third party appeal on the basis that the third party had its rights directly impacted by virtue of a development application rather than a structure plan. Development applications are quasi-legislative, do not have the force of law, and must only be given ‘due regard’. Therefore, while the Application might change the ‘spatial arrangement of land uses’, if it was approved, it would not conclusively affect the rights and obligations of other affected landowners. As such, there was no immediate necessity for the Proposed Intervener to intervene in the proceedings.

This judgement helps clarify the impact of structure plans on the rights and obligations of landowners and whether proposed amendments to structure plans may incorporate land not owned by the proponent.

Room full of people

The team at Glen McLeod Legal brushed up on their trivia for the UDIA Quiz Night last week. It was a pleasure to attend a UDIA social event for the first time since COVID restrictions eased and to mingle with others in the industry. While we did not quite manage first place it was a very enjoyable and fun night out at the Old Pickle Factory. Thank you to Alan Stewart, Len Kosova and Cameron Leckey whose knowledge of music and pop culture was invaluable!


For many years there has been controversy and uncertainty over whether there should be a port at Kwinana and the effect future port plans would have on current freight routes. In what many would hope is the final work on the matter, the independent Westport Taskforce, has produced what may be described as a ‘visionary plan’ for a future container port.

The Westport: Future port recommendations stage 2 report (Report) recommends two port options, both of which aim to increase freight capacity to meet long-term forecast demand. The two options involve the transition of trade from Fremantle to a new port in Kwinana. Option D2 recommends transitioning all freight to Kwinana over time, while Option B recommends moving all freight to Kwinana at once.

Why it is proposed to move the Port

In growth

2018-19, 770,000 twenty-foot equivalent units (the unit of measurement for containers) (TEU) were handled by the Fremantle port. By 2068, that number is expected to grow to 3.8 million TEUs.

The Report details six primary reasons for having a new port.

  1. Increasing road congestion

The areas surrounding the Fremantle port are experiencing growing density levels without increases to road capacity. Removing port traffic will increase social amenity.

  1. Bigger ships

As larger ships begin to service Perth a wider range of accommodation will be needed. This will range from minor upgrades to the deepening of the Inner Harbour channel.

  1. Asset optimisation

The infrastructure assets currently used at the Fremantle Harbour will reach their optimum asset life in the next 20 to 30 years.

  1. Land value

The ‘highest and best use’ of the land currently used for industrial purposes is forecast to change to residential and commercial.

  1. Social licence

The noise, vibration and emission from the existing port will become less compatible with residential areas.

  1. Environment

The regulatory and technological environment will at some point necessitate a rethinking of the port.

Option B

This recommendation is that a port be built in the Cockburn Sound. Option B would be constructed in 3 stages:

Stage 0: Meet short term freight growth with upgrades at Fremantle.

Stage 1: Construction of the Kwinana port. Stage 1 of the Kwinana port could be built to manage up to 1.52 million TEUs.

Stage 2: If ultra large container vessels begin to service Australian ports, the Cockburn Sound access channel can be deepened and widened as necessary.

Stage 3: The capacity of the Kwinana port can be increased to 4.5 million TEUs to meet the forecast growth in freight.

About two thirds of the capacity of the Kwinana port will be serviced by road, through a dedicated freight corridor along Anketell Road and Tonkin Highway. The existing South Western main line rail line with accommodate the other one third.

This option is forecast to cost $4.7 bn.

Option D2

Option D2 is similar to Option B, but instead provides for Fremantle and Kwinana to share the receipt of freight in the short term. The receipt of freight at Kwinana will then gradually increase.

Option D2 is the preferred option as it maximises the value of the Fremantle port, while still transitioning into the same long-term state as Option B.

This option is forecast to cost $4 bn.

Suggested benefits of Options B and D2

The capacity of the proposed Kwinana fort in Options B and D2 exceeds forecast demand and future-proofs the receival of shipping freight in Perth for the next 50 years.

The benefits of Options B and D2 are:

  • Kwinana is more a more flexible location, with less constraints imposed by the land use of the surrounds;
  • Traffic associated with the Kwinana port will be facilitated by Anketell Road and Tonkin Highway and thereby avoid suburban areas; and
  • Fremantle and the Inner Harbour will be open to redevelopment.


The Report is part of a major undertaking and will take some digesting. There are many points of conflict between advocates for the status quo and supporters of the new port. Running in parallel will be a range of issues that will require further investigation, including environmental, traffic, social and logistical issues. Many of the issues have been aired before and a number of potential plans have not survived the electoral cycles and other forces that hit endeavours of this level. It is hoped that this Report and its future implementation will bring the certainty that has been missing in the past.

Town Team Movement volunteers

COVID-19 has created a very unique moment in time, one that has brought uncertainty, societal challenges and a breakdown of the old ‘normal’. Town Team Movement considered this to be a ripe time to discuss our societal priorities and opportunities to reshape how we plan our future.

Chelsea White and Lea Hiltenkamp, of Glen McLeod Legal, had the opportunity to attend Town Team Movement’s SHIFT Digi Conference at which a range of speakers explored how local communities, organisations and governments take this opportunity to do things better.

Session highlights included: a panel discussion around how clever town planning and the activation of public places can help to minimise the disruptive impacts of public works, as well as a discussion around how local communities can work together with developers and local government to create vibrant neighbourhoods.


The Northern Territory Environment Minister has released guidance papers on a new approach to biodiversity and carbon offsets. Rather than taking the conventional approach to environmental offsets as adopted by jurisdictions like Western Australia, the Territory has proposed a new ‘target-based’ model.

Offsets are a way of balancing the environmental impact from projects. In jurisdictions such as Western Australia, where an impact cannot be avoided or mitigated, proponents are instructed to either purchase, restore or protect an area of land of equivalent environmental value for the State or contribute to an offsets fund. In doing so, the scheme seeks to result in no ‘net loss’ to the environment.

The point of difference with the Northern Territory approach is that, rather than placing the ultimate onus for environmental protection on the government, the proposed scheme will require proponents to make a comparable contribution to progress regional or Territory-wide environmental targets. This approach is, according to the guidance papers, designed to avoid the perception that proponents are ‘buying’ environmental approval, as well as ‘opaque’ requirements for achieving no net loss. The Northern Territory cites academic criticisms of the conventional model that it does not deliver the desired outcome of no net loss to the environment due to a lack of specific strategic planning.

What is the target-based model?

The Northern Territory approach will use targets tailored towards achieving certain desired outcomes, such as protecting vulnerable species and ecosystems or reducing the spread of invasive weeds, among others. These targets will be developed through consultation with academic and environmental experts, community and industry stakeholders, and the Commonwealth government, amongst others. The exact offset required for a project will be identified to address the likely impact of the project, such as those arising from its location. In comparison, according to the Territory Guidance paper, offsets under the conventional model are generally more broadly related to protecting the environment and are not tailored to achieve official State or region-wide goals. They may also be less specific to the proposed development.

Where a project is likely have an adverse impact, the proponent will be required to identify and contribute towards a suitable offset plan or plans. The contribution will be calculated using ‘simple and transparent rules’, dependent on the extent of the likely impact from the project, according to the guidance papers. Proponents will be allowed to implement offset requirements with the assistance of offset providers, who are more likely to be able to implement the targets on a larger scale.

The new Territory model is undergoing further development before being officially implemented. Time will tell whether this approach results in more a measurable benefit to the environment compared to conventional models.

The guidance papers on this topic can be found here <>.


I would like to thank all of those who have congratulated Glen McLeod Legal on its 8th Anniversary.

This is a time to be grateful to our clients, contacts and well-wishers. I am grateful for the loyalty of our staff and the support they receive from their families. We are grateful for how the business has performed in this unique year. No-one planned for COVID-19 and we had to play by ear how we responded. We managed during March, April and May and the business kept going without reduced working hours or enforced leave. We are pleased that, with the end of the Financial year behind us, the trend seems to be positive as far as work-flow is concerned.

In the first part of the Financial year, we were delighted to celebrate the admissions to practice of Lea Hiltenkamp and Chelsea White.

I am also very grateful for the support of our more senior lawyers Connor Fisher and Jess Hamdorf, as well as our Administrative Team, two excellent Practice Managers, Janine Upson and Bridget Thorpe, who job share, with the reliable support of Secretary Brooke Plummer.

We are also grateful to have had with us for most of this year, three capable part time law clerks, Emiko Watanabe, Thomas King and Daniel Morey. They are studying law at University but fortunately find the time during their busy week to work with us.

We are fortunate to live in Australia and in WA, in particular, where we have had no community transmission of COVID-19 for some time. The Country and State are blessed to have the resources to support in large measure the economy following the initial shock of these difficult times. At the same time, we do not assume that the COVID-19 pandemic is fully behind us.

The team at GML is ready to meet the challenges, among other things, by adhering to the firm values, in particular team work and client focus (there is a full statement of our values here). We can look forward to a successful 2020/2021 and wish our clients, friends and supporters likewise.

Best wishes,

Glen McLeod


Far reaching changes, including both procedural changes to the way planning law is administered and practical changes that will be of continuing relevance to developers, were introduced by the Planning and Development Amendment Act 2020 (WA) (Act). The Act received royal assent on 7 July 2020 and will amend the Planning and Development Act 2005 (WA) (PD Act).

Our previous blog article provided an overview of the Act as introduced in the Legislative Assembly. This article summarises the key changes to the Act as passed through both houses of State Parliament.

Definition of ‘significant development’

The new Part 17 of the PD Act creates a different approvals process for ‘significant developments.’ Under the Act, ‘significant developments’ may be referred directly to the Western Australian Planning Commission (WAPC) for determination.

The definition of ‘significant development’ has been amended to:

  • Development that has an estimated cost of $20 million or more in the metropolitan region; or
  • Development that has an estimated cost of $5 million or more outside of the metropolitan region.

This is a significantly wider definition than originally proposed, and in particular opens avenues for regional developments. However, we note that this definition relates only to development and does not contemplate strategic planning instruments, such as structure plans, activity centre plans or local development plans.

Default substantial commencement period reduced

The default period for substantially commencing ‘significant developments’ has been redefined to a period of 24 months from the date of approval. This is a reduction from 48 months as proposed in the original version of the Bill. This means development will need to commence earlier than previously anticipated or else approval will lapse. The WAPC still has the power to impose a longer or shorter substantial commencement period.

WAPC must undertake public consultation

The changes to the wording now strengthen the requirement for public consultation as part of the new ‘significant development’ approval pathway. Where previously public consultation was worded as discretionary, it is now a required part of the approval process.

The WAPC may also do ‘anything else’ it deems appropriate to ‘obtain a document, information, an opinion or any other contribution from any person or body’.

The Act now requires the WAPC to consult with the Department of Water and Environmental Regulation if the land is classified as contaminated and thereby subject to a Memorial under the Contaminated Sites Act 2003 (WA). While removing the express requirement to consult with the Environmental Protection Authority, the Act now expressly states ‘for the avoidance of doubt’ that the Environmental Protection Act 1986 (WA) prevails in the case of conflict.


Stricter guidelines on the process the WAPC must undergo to approve developments is a concession to the effectiveness of the Act as a ‘red-tape’ cutting measure. However, this balances the shorter substantial commencement period and wider significant development definition. The PD Act should now see more developments taking advantage of Part 17, and with that a greater transparency and certainty in decision making.


Roads, rail and other infrastructure are seen as one route out of the COVID-19 economic languor. There is talk of ‘fast tracking’ projects. Some have been on the drawing board for a long time. Now there is a sense of urgency; to get on with it.

A new Planning and Development Bill is now making its way through State Parliament. The Bill was described in its explanatory memorandum as both ‘an urgent response to the COVID-19 pandemic, as it relates to planning and development impacted by the greatest economic crisis since the Great Depression’ and the first tranche of a set of broader planning reforms.

The land for these projects has to come from somewhere. In Western Australia the Government doesn’t have to pay compensation before it enters onto private property and starts work on a project. This effectively means that the main takings statute, the Land Administration Act 1997, is ready made to complement the proposed fast tracking of the planning system. The compensation to the dispossessed landowners may take years to settle and be paid. Each case can become another story in a long history of stories about how the state behaves when private property is needed for a public work.

The film ‘The Castle’ has become a cultural touchstone in Australia for the property rights of the ordinary person in the street. It is a story of how tenacious ordinary folk prevailed in the face of stubborn bureaucrats wielding great power and of course, it is retold as a story based on fact, that had a happy ending.

We all know that in real life not all stories have a happy ending. Ordinary folk and businesses of all sizes find it hard to navigate the complex regulatory framework of compensation for the taking of their land for public works, such as roads, railways and other infrastructure. There are a number of reasons why this is commonly the case, including the power imbalance between the State and the land or business owner, particularly in regard to financial resources; lack of time; the mental stress of fighting the State for a long time; and the need to get on with life without the worry involved in a major argument with a monolithic adversary.

To be fair, I have no doubt after dealing with State bureaucrats in these matters for more than 40 years, that many of them have sound motivations in the way they do their job, which is principally to look after the interests of the State. That, in a sense, is for the benefit of everyone. The ‘public interest’ it is sometimes called. The problem is that perhaps too often in this process the rights of the landowner are not always respected and many people perceive that they have not been fairly dealt with by the system.

The ordinary landowner is often affronted by the exercise of State power to take their land, even where it is said to be for the ‘greater good’. ‘Why me?’ is the instinctive reaction. ‘I did not invite this action. This is very inconvenient and I want to be compensated properly’. This is despite the State following well used procedures designed to inculcate fairness into the system. Why the system may not always live up to expectations that it will be fair might be better left to those who understand the organisational psychology of state apparatus, which is somewhat beyond my expertise as a lawyer working in the area of governmental takings for public works.

Usually, the Government response to complaints about the takings process is that compensation is payable. It is just a question of assessing the compensation and we do our best to make it fair. ‘There’s the rub’ and a great source of trouble. The State’s idea of what is fair compensation and the expectation of the landowner can be vastly different. Assessing compensation has a number of moving parts and is complex. This is particularly so when the property is used for a business or is specially adapted for a particular use or has some unrealised potential that in time would have matured to the benefit of the owner, had it not been for the taking.

Often the ‘public interest’ and what the State can allegedly afford is used by it to justify trying to cut compensation to the quick. This, of course, is a one sided view. The reverse is that if the State can’t afford it, how can the ordinary home or business owner who is seeking compensation?

Negotiation with the State is an option and can bring about a sound result. Unfortunately, negotiation does not always end well for the landowner. The gap between what the State is prepared to offer and what the owner is prepared to accept can be too great and if it is significant in monetary terms, litigation may be a realistic option. When the response to a State offer is, in the words of the hero in ‘The Castle’, Darryl Kerrigan, ‘Tell him he’s dreamin’, it may be a case of ‘game on’. Darryl eventually went to Court to seek a just outcome and that is a course of action open to everyone in our society. In Western Australia, there are even two options: the State Administrative Tribunal or the Supreme Court.

A well advised landowner will know that litigation is what you do when all else fails. It takes time, can be expensive, stressful and exhausting. Sometimes part of the cost is recoverable but not always. Early payment of part of the compensation may be possible, which can help fund the case for the landowner. Make no mistake however, litigation is not for the faint-hearted.

Why then do people litigate to get fair compensation? It comes down to commercial reality and to some extent, justice. Pain is needed if there is to be a gain on both of these counts.

It is not always necessary to go all the way to a court hearing after proceedings have been started. You can negotiate a resolution anywhere along the way and the system encourages that through compulsory mediation, which in 80 to 90 per cent of cases in Western Australia, is successful or partially successful. ‘Success’ usually means some compromise but often the process is worthwhile.

Why are compensation cases so difficult? There is no simple answer, but it often comes down to differing views on how the land should be valued. Should it be on the basis of its current zoning or its potential zoning? The parties may differ on what is the highest and best use. Various experts, including town planners, engineers and environmental consultants may be needed to support the case and above all, the parties must have valuers acting as expert witnesses.

Here are some tips. Get good legal advice early. Lawyers should advise on your legal rights and where other experts are needed, who you should engage and how they should be instructed. Do not settle on the basis of what a valuer advises, if they have been engaged by the taking authority. Also, it is generally better to pay a consultant on the basis of a fixed fee or hourly rates rather than a percentage of the amount that is recovered for you. Tempting as that may initially be as a deal, it is better to keep your interests and those of the adviser separate.

In the end, getting to a just outcome can come from negotiation and it is not always necessary to go to court. It is important, however, to be well advised from the beginning of any engagement with the state, when it is seeking to take your land for a public work.