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.

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 view of a colourful playground

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!