petrol station fuel nozzles

Presiding member of the southern joint development assessment panel V dcsc pty ltd [2018] WASC 145

The recent approval of a development application for a ‘convenience store’ in Dunsborough illustrates the potential complexity of town planning law and policy.

On 10 May 2018, the Supreme Court of Western Australia (Supreme Court) dismissed a challenge against the development approval of a convenience store on Lot 108 Dunn Bay Road, Dunsborough (Land). The development included a Puma Energy Service Station as a component of the usual retail convenience store use.

The appeal was brought by the Presiding Member (JDAP Member) of the Southern Joint Development Assessment Panel (JDAP), which had initially refused the development application. DCSC Pty Ltd (Developer) had applied successfully to overturn the JDAP’s decision in the State Administrative Tribunal (SAT).

The application sought approval for a ‘convenience store’ under the City of Busselton Local Planning Scheme No 21 (Planning Scheme). The JDAP’s refusal was partly on the basis that the proposed use should be characterised as a ‘service station’ under the Planning Scheme and not a ‘convenience store’.

Under the Planning Scheme, ‘convenience store’ was a permitted use and ‘service station’ a discretionary use. Therefore, it was only if the proposal was a ‘service station’ that the JDAP had the power to refuse the  application.

The overarching question for the SAT was whether the proposal should be approved. A preliminary issue was whether, in planning terms, the proposed use should be characterised as  a ‘convenience store’ or a ‘service station.’ If it was a ‘convenience store’ an approval authority could only impose conditions on the approval.

On 25 August 2016, the SAT determined that the proposal was a ‘convenience store’ and was therefore a permitted use under the Planning Scheme (Preliminary SAT Decision).

On 4 August 2017 the definition of ‘service station’ under the Planning Scheme was amended. This amendment was made prior to the SAT’s final hearing at which it was determined whether the proposal should be approved.

The development would likely meet this new definition which would preclude the proposal being characterised as a convenience store. This would have given the SAT a discretion to refuse the proposal. Of course, it could also have decided to approve the application on its merits.

Nevertheless, on 23 August 2017, the SAT delivered its decision on the overarching question (Final SAT Decision) without considering the amended definition of ‘service station.’ On the basis that the proposal was a ‘convenience store’ as decided by the Preliminary SAT Decision, the SAT determined that the Developer’s application should be approved subject to conditions.

APPEAL TO THE SUPREME COURT

The JDAP appealed the Final SAT Decision to the Supreme Court. Appeals of this nature must be in respect of legal issues stemming from the SAT’s decision. The main appeal point was that the SAT had not considered the 4 August 2017 amendment.

The Supreme Court held that the JDAP Member’s failure to appeal the Preliminary SAT Decision meant it had binding effect on the parties and must be applied by the SAT when making the Final SAT Decision. The Supreme Court said:

the determination of the preliminary issue in this matter (that is, the proper classification of the use of the land in the proposed development was ‘service station’ as defined in [the Planning Scheme] prior to 4 August 2017) was and is binding upon the parties and the Tribunal in making the final decision and is not a matter open to be challenged in this appeal.

The Supreme Court also made important observations on the issue of accrued rights. The Preliminary SAT decision was, for the Developer, an accrued right.

The Supreme Court said that ‘[a]ccrued rights are rights that are to be determined under a law as it stood when the right accrued.’ It went on to say that the Developer:

had a right to have the legality of the remaining matters determined in accordance with the decision on the preliminary issue made under the previous law.

Therefore, a right accrued to the Developer to have the Final SAT Decision determined in accordance with the Preliminary SAT Decision that the appropriate classification was ‘convenience store.’

CONCLUSION

The Supreme Court’s dismissal of the appeal allowed the Developer to begin constructing the convenience store. It remains to be seen whether the JDAP Member will appeal to the Court of Appeal.

It is noted that generally a planning application is to be determined on the basis of the law and policy as it stands at the time of the determination, whether by an original decision-maker or on review. The decision in the present case is not contrary to that principle because the Preliminary SAT Decision became part of the body of law to be considered when the Final SAT Decision was made. Also, a legal determination by the SAT at a preliminary hearing may confer rights on the land owner which if not challenged after the preliminary decision, will bind the SAT when the final determination is made.

circular window

‘USING PRODUCTS IN A CLOSED LOOP SYSTEM’

WORKING SESSION AT THE INTERNATIONAL BAR ASSOCIATION SECTION ON ENERGY, ENVIRONMENT, NATURAL RESOURCES AND INFRASTRUCTURE LAW
LISBON, 9 APRIL 2018

At the International Bar Association’s (IBA) Biennial Conference of the Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL) held on 9 April 2018 Michelle Ouellette[1] and Glen McLeod[2], moderated a breakout session on the emerging new circular economy.

This session introduced the circular economy model, which is focused on using products in a closed loop system.  It explored incentives and initiatives, policies and regulatory regimes that enable more sustainable production practices and promote sustainable consumption. The panel members were from diverse backgrounds, including the private business sector, government, non-for-profit organisations and international organisations.

Carrie Snyder, Founder of CSS Consulting and instructor at Harvard Extension School, Virginia Beach, Virginia introduced the concept of the circular economy and described how a closed system operates. A closed system exists where a product design does not require new material inputs and the product can be re-used, recycled or composted at its end-of-life. The idea is to design waste out of the system, produce repairable products and sell services designed to keep products in repair.

Dr Kieren Mayers, Director of Environmental and Technical Compliance for Sony Interactive Entertainment, London considered how the concept of the circular economy has become more mainstream and highlighted the implementation of legislation concerning the lifecycle of electronic products in the European Union. Dr Mayers noted that producer responsibility for the ‘take back’ of products at the end-of-life stage has been implemented, though he emphasised that it is important to ensure the steps which are taken for end-of-life management are practical and deliver the intended results. This is particularly important in the development of harmonised product standards and regulations

Professor Christian Piska of the University of Vienna, Vienna commented that the broadly understood concept of waste runs counter to the goals of resource conservation and waste prevention. Professor Piska also noted the potential limits of the circular economy, drawing upon the example of used cars. Assets should be enhanced to last longer, the emphasis being on a service economy. However, it is not in the manufacturer’s interest to prolong the life of a vehicle. He considered that the prolonged use or reuse of an item is the most effective method for conserving resources. In relation to measures taken by the European Union, Professor Piska noted the possibility for overregulation and the potential for unforeseen results to occur. Smart regulation, which generally means as little as possible, is his preferred approach.

Harry Verhaar, Head of Global Public & Governance Affairs for Philips Lighting focused on what is required to progress towards a circular economy. Mr Verhaar highlighted the requirement for comprehensive legislative and regulatory regimes and raised questions about the potential limits posed by existing infrastructure. In general, the focus should be on prolonging the life of infrastructure. Recycling should not be an end in itself because of its use of energy. We need to rethink production, so that the need to recycle is avoided.  Mr Verhaar noted the experience of the lighting sector and the transition from inefficient analogue incandescent light-bulbs towards highly efficient digital LED lights, which last longer, use less energy and reduce the need for recycling. The discussion focussed on why this transition occurred and what the experience of lighting sector might mean for other sectors.

Mr José Eduardo Martins, Partner at Abreu Advogados, Lisbon considered how the European Union produces environmental legislation and the implications of this legislation for the circular economy concept. Mr Martins cited potential risks, namely, that legislation may simply be symbolic or ineffective in trying to address environmental concerns.

A perspective on the circular economy in North America was brought by Jonathon Cocker, Partner at Baker McKenzie, Toronto, Ontario. Mr Cocker observed that there is a migration away from government run waste diversion programs towards the private sector. He noted, for example, the establishment of producer responsibility organisations (PRO), which monitor producer responsibility obligations, held by private brand owners and importers. The PROs are positioned to be central in waste management innovation. However, Mr Cocker noted limitations, including complex legal issues among PROs and the potential impact on other industries and the broader market.

Dr Jordie Bruno, CEO and Chairman of the Board of Amphos 21 Group, Barcelona considered the practical implications of the circular economy. Namely, that the laws of thermodynamics and technical limits on resource recapture make it impossible to achieve a 100 per cent closed loop economy. This has ramifications for the effectiveness of eco efficiency and zero waste initiatives. These external circumstances should be taken into account when establishing the limits and conditions in which a circular economy might work from the economic, social and legal standpoints. It is important to keep products and ultimately waste, as close as possible to the source of the product

Overall, the session provided a range of comprehensive and well considered insights into the circular economy concept and the future of waste management. It is clear that the circular economy concept provides a number of innovative options, though it will be necessary to approach future projects with an open mind and be resistant to creating unrealistic expectations about the short-term outcomes of circular economy models.

[1] Partner, Best Best & Krieger, Riverside, California; Chair of the Environment Health and Safety Committee of the IBA

[2] Principal, Glen McLeod Legal Perth, Western Australia; Council Member, SEERIL

books

Listing of leading Western Australia Planning and Environment law firms

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 guide can be accessed at the links below:

Leading Planning and Environment Lawyers

Leading Planning and Environment Law Firms

Blue sky with clouds

Glen McLeod Legal represented the operators of a recycling plant that was issued with a stop work prevention notice by the Department of Water and Environmental Regulation pursuant to section 73A of the Environmental Protection Act 1986. Following effective negotiations with DWER, measures were put in place at the recycling plant to address issues raised and enable the timely withdrawal of the prevention notice.

Please contact Glen McLeod Legal by telephone on (08) 6460 5179 or by email at glen@glenmcleodlegal.com.au should you require advice concerning notices, orders or directions issued under the EP Act.

Building and construction

Illegal development can include the clearing of native vegetation. This was confirmed in the Perth Magistrates Court in December 2017 when a building company was fined $120,000 for illegally clearing 20 per cent of a C-class native vegetation reserve in Swanbourne. In addition, the same company was ordered to pay $17,500 in costs to the City of Nedlands, after being found guilty of contravening the town planning scheme.

The potential for clearing to constitute illegal ‘development’ in the planning system was identified in Palos Verdes Estates v Carbon (1991) 6 WAR 223 by the then Chief Justice David Malcolm. The term ‘development’ includes changes in the physical character of the land, as well as changing its use. This of course catches clearing as an activity that changes land physically and may lead to a change of use.

The case is unusual because the clearing of native vegetation is nowadays generally regulated under Part V, Division 2 of the Environmental Protection Act 1986 (WA) (EP Act), which, amongst other things, provides that the clearing of vegetation is an offence, unless a clearing permit has been granted pursuant to section 51E of the EP Act.

Glen at Murdoch University

On 8 February 2018, Murdoch University School of Law and Glen McLeod Legal hosted a seminar on the modern idea of strategic planning and how it can be used to enhance the Western Australian planning.

The key speaker, Evan Jones, eminent town planner and urban designer, highlighted the following key points which need to be addressed to reform the current planning system.

1.    The need to make strategic planning the cornerstone of all planning decisions, in order to improve the quality and timeliness of development assessment.

2.    Opening up the planning system so that it is understandable to everyone. A key aspect of reducing the current complexity is to establish a “clear line of sight” between hierarchy of strategic, city, regional and local plans so that their relationships are clear, as well as ensuring that all policies and strategies are up-to-date. This line of sight will also clarify the state and local planning roles and responsibilities.

3.    Addressing industry interests by defining clearly development assessment pathways. Moreover, planning and infrastructure delivery should be linked to strategic planning for growth. This should operate in conjunction with a sustainable settlement pattern, which gives priority to infill development and ensures that any new areas of growth are contiguous with existing communities.

4.    Examining how technology will transform WA’s cities and regions and how the planning system should adapt and create new tools to address today’s critical confluence of data, technological, and social change.

Well-known author and academic Les Stein followed Evan’s presentation with a discussion of international best-practise in strategic planning including examples from North and South America, India and Australia. . Phillip St John, Chief Executive Officer of the City of Fremantle, then gave a pragmatic-minded speech on how strategic planning can assist in addressing topical issues in Perth, such as urban infill, sustainable housing and community engagement.

The seminar concluded with a lively panel discussion with a wide range of input from the audience consisting of local and state government planners, environmental and planning lawyers, state industry groups and town planners. Discussion points varied from third party appeal rights to control of development around public transport hubs and the necessary level of planning detail required in local precincts. Find the full conference programme here.

road construction

Glen McLeod Legal represented a commercial landowner in land compensation proceedings in the State Administrative Tribunal. The proceedings concerned the taking of our client’s land for the widening of a major road in the Perth metropolitan area and were brought under section 220(c) of the Land Administration Act 1997 (WA). The landowner and the acquiring authority reached a negotiated outcome without the need for a final hearing.

Please contact Glen McLeod Legal by telephone on (08) 6460 5179 or by email at glen@glenmcleodlegal.com should you require representation in a land compensation matter.

Paper files

Generally, parties to proceedings in the State Administrative Tribunal (Tribunal) pay their own costs, with the notable exception of compensation matters, which were previously the jurisdiction of the Compensation Court. However, section 87 of the State Administrative Tribunal Act 2004 (WA) gives the Tribunal the power to order one party to pay another party’s costs in particular circumstances.

In recent months, the Tribunal has published three noteworthy decisions regarding costs:

1.    Ransberg Pty Ltd v City of Bayswater [2016] WASAT 43 (S) (Ransberg)
2.    Western Australian Planning Commission v Graham [2013] WASAT 112 (S) (Graham)
3.    Spartalis v City of Stirling [2017] WASAT 125 (Spartalis)

RANSBERG

The Applicant, Ransberg Pty Ltd, sought an order for costs in relation to earlier proceedings regarding the City of Bayswater’s (City) refusal of an application for development approval for a concrete batching plant.

The Applicant submitted that it should be entitled to indemnity costs of $248,798 on the basis that the City:

•    did not genuinely seek to deal with the development application on its merits;
•    conducted itself unreasonably during the proceedings in order to prolong the matter and increase costs to the Applicant; and
•    maintained a position throughout the proceedings that was without merit.

The Tribunal determined that the City had refused the development application despite extensive planning, legal and environmental advice that indicated its suitability for approval. Consequently, the Tribunal held that the City had failed to genuinely attempt to make a decision on the merits of the application and ordered the City to pay the Applicant costs of $112,772.

GRAHAM

The Respondent, Graham, was the owner of four lots subject to a partially invalid Taking Order made by the Applicant, the Western Australian Planning Commission (WAPC).

The Applicant made an application to the Tribunal requesting a determination of the quantum of compensation (Application). On appeal by the Respondent the application was, for the most part, struck out by the Supreme Court of Western Australia, which held that the Tribunal’s jurisdiction had not been enlivened as no offer of compensation had been made by the Applicant. The matter was referred back to the Tribunal to determine costs.

The Respondent submitted that the Applicant’s position was without foundation or merit and that as such, the Applicant should bear the costs associated with defending the Application.

The Applicant submitted that it was appropriate for them to bring the Application and that each party should bear its own costs.

The Tribunal found that the Applicant’s claim was not wholly without foundation and that the dispute was genuine. There was no evidence that the Applicant’s conduct was unreasonable or deliberately vexatious. The Tribunal ordered each party to bear their own costs. It is necessary to note that compensation matters are not within the usual Tribunal rule which requires each party to bear its own costs.

SPARTALIS

Retrospective approval was sought for development works carried out by Spartalis (Applicant). The City of Stirling’s (Respondent) only expert witness was unavailable for the final hearing date. The City did not oppose the hearing date on this ground, nor did they attempt to retain a new expert until a week prior to the hearing.

Six days prior to the final hearing, the Tribunal received proposed consent orders from the parties on the basis that the Respondent had granted approval for the applications. The orders sought were that the final hearing be vacated, but reserved the Applicant’s right to seek costs.

The Applicant submitted that the Respondent had:
•    not sought to consider genuinely the development application on its merits;
•    not sought the advice of an expert town planner;
•    maintained a position that was without merit; and
•    prolonged the matter which resulted in increased costs to the Applicant.

The Respondent contended it had genuinely attempted to make a decision on the applications merits. Further, they argued that they had not acted unreasonably, inappropriately or with capricious or vexatious behaviour.

The Tribunal concluded that the Respondent’s actions in granting approval only 6 days prior to the final hearing demonstrated that the Respondent had either:
•    only very belatedly genuinely turned its mind to the merits of the outstanding issue; or
•    due to the unavailability of its key witness, arbitrarily decided to grant approval to save costs of retaining an external expert witness.

In either circumstance the conduct was inappropriate and had contributed to costs being incurred by the Applicant unnecessarily. The Applicant was awarded $20,000.00.

COMMENTS

To direct a party to bear any or all of the other party’s costs the Tribunal must be satisfied by more than an unfavourable hearing outcome. Rather, there must be clear evidence to suggest, in the case of a respondent party, that it has not genuinely considered proceedings on its merits or has acted vexatiously, so as to unnecessarily increase costs to the other party.

Further, as illustrated in Ransberg where the SAT awarded only half the amount of costs sought, when the Tribunal exercises their discretion to grant costs it does so somewhat conservatively.

A person's hands working on a laptop

The New South Wales Land and Environment Court (NSWLEC) has commenced paperless civil trials for Class 3 resumption compensation cases. The paperless elements comprise of a data projector being connected to the courtroom PC, with all materials being tendered on a USB thumb drive.

The NSWLEC has identified many benefits of conducting paperless trials, being namely:

·       decreasing costs associated with photocopying and preparing hardcopy documents;

·       eliminating the use of paper;

·       conserving printing and filing resources;

·       reducing energy consumption associated with printing and photocopying; and

·       improving access to justice by making all material available to view and understand in the courtroom.

Responses from participants in the trials were overwhelmingly positive. In particular, Justice Moore noted that the electronic format was a benefit to the judgement preparation process.

Five more trials are scheduled to be conducted with paperless material before the end of 2017.

Although not yet fully utilised, we understand that the Sate Administrative Tribunal (SAT) in Western Australia may already have the technological capability to enable paperless trials in its hearing rooms.

Our Experience

Glen McLeod Legal is a paperless office. Like the NSWLEC we have noted numerous benefits in ‘going paperless.’

From an administrative perspective, we have experienced a notable decrease in delays and costs associated with printing and collating documents, and we are enjoying the freedom to work outside the limitations of printing and courier services. This is not to say paper can be avoided altogether, particularly where is it requested by a person who we are dealing with.

Employees have found going paperless has created more office space, has made working offsite more practicable, and allows the firm to cater to employees with flexible work requirements.

All these benefits have flowed on to our clients in meaningful ways, including ease of transferring information, reduced delivery time and costs savings.

Rolling green hills

Glen McLeod, Principal at Glen McLeod Legal, recently contributed an article to the Australian Environment Review. Using the recent Western Australian state election as a reference point the article titled, ‘Environment and planning issues in Western Australia pre- and post- the 2017 state election’, examines three Western Australian Court decisions and their implications. A summary of the article follows.

Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482 turned on whether, under the proper construction of Part IV of the Environmental Protection Act (1986) (EP Act), the Environmental Protection Authority (EPA) had failed to consider a mandatory relevant consideration. The decision at first instance was reversed by the Supreme Court of Appeal which determined there had been no failure on the EPA’s part (Jacob v Save Beeliar Wetlands (Inc) (2016) 50 WAR 313). The observation made was that competing statutory interpretations can arise when complex legislation is the subject of a contemporary, contextual and purposive examination. Though the case did have the practical effect of delaying the project for it to be terminated by the new government.

The decision for Erujin Pty Ltd v Jacob [2017] WASC 35 was handed down one month before the state election and consisted of a judicial review of the environmental appeals process, focusing primarily on the issue of procedural fairness. Currently, appeals against environmental decisions are reviewed under the EP Act’s ministerial appeals system. The Court found that the system as it applied in this case did not create a breach of procedural fairness. Though a criticism levied at the ministerial appeals system is that it appears to be ‘deliberately designed to minimise the potential for litigation’.

Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279 concerned a challenge against the recommendations made by the State Administrative Tribunal (SAT) that a subdivision application within close proximity of the Kwinana Industrial Area and within the Kwinana Buffer Area be refused. The appellant argued that the SAT had taken into account irrelevant considerations. In his judgement, Chaney J concluded that the challenge be dismissed citing health, sustainability and precautionary reasons.

The existing buffer is under pressure from developers and local government due to a shortfall in legislative protection. The former WA Government promised legislative protections for the Kwinana Buffer Area, though it is not clear whether the new government will follow through with these plans.

These cases highlight some unusual features of the Western Australian appeals system, particularly the strong involvement of the executive arm of government in environment and planning decision making. The cases discussed in this article will be added to the body of precedent cited in future planning and environmental matters.