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We are delighted to announce that Glen McLeod has been selected by research with clients and peers as being one of the world’s leading Environment lawyers. He is one of a select few Australian lawyers to be recognised.

A sunny park

An important decision of the High Court was made on 8 February 2017, when it allowed an appeal against a decision of the Western Australian Court of Appeal on a landowner’s right to claim compensation for the loss in value of land affected by a public purpose reservation.

Southregal Pty Ltd and Mr David Wee together entered into a contract to buy a parcel of land. Prior to settlement of the contract, part of the land was reserved for regional open space under the Peel Region Scheme, a planning scheme made pursuant to the Planning and Development Act 2005 (WA) (PD Act). After settlement, the landowners applied to the Western Australian Planning Commission (WAPC) for approval to develop the land.

The WAPC refused the development application and the landowners submitted a claim for compensation under section 173 of the PD Act, which provides that ‘a person whose land is injuriously affected by the making … of a planning scheme is entitled to obtain compensation’. The WAPC declined each claim on the basis that the landowners did not meet the requirements of section 173. The WAPC asserted that only owners of land at the time the land is reserved, and not subsequent purchasers, are entitled to compensation.

The landowners were successful in the Supreme Court of Western Australia.[1] The trial judge held that section 173 must be interpreted in light of the requirements in section 177(2), which allows for later purchasers to receive payment for the reservation of land. Accordingly, Beech J held that the plain meaning of section 177 gave the owner of land at the date a development application was refused a right to compensation.

On appeal to the WA Court of Appeal, the landowners were also successful.[2] The WAPC argued that when section 177(2)(b) is read in the context of section 173(1), the only persons entitled to obtain compensation under section 177(2)(b) are those who were owners at the date the land was reserved. The landowners argued that the words “owner of the land at the date of application” in section 177(2)(b) would be denied their natural and ordinary meaning if they were to be read as only extending to owners of land at the date of reservation.

However, the High Court allowed an appeal from the Court of Appeal decision.[3]The majority held:[4]

  • section 173(1) confers on the landowner an entitlement to, and identifies who may claim, compensation in the event that land is injuriously affected by the making or amendment of a planning scheme;
  • section 177(1) provides for the point in time at which compensation is liable to be paid. That is either when the land is sold or when the development application is refused or approved with conditions unacceptable to the applicant;
  • once a claim is triggered by one of the events in section 177(1), a later occurrence cannot trigger further claims. In the present case, once the land was sold to the respondents, the refusal of their development applications could not trigger a claim for compensation; and
  • like section 177(1), section 177(2) does not identify persons who may claim compensation. Its purpose is to identify the person to whom payment is made. Section 177(2)(b) ensures that payment is made to the landowner, despite the possibility that it may be a different person making the application for development approval. It is not intended to extend the category of persons entitled to make a claim.

Implications of Southregal

  • The Court did not consider in any detail whether an ‘owner’ includes testamentary or intestate succession, although until this point is clarified it would be safe to assume that the transfer of ownership extends to testamentary or intestate succession of the land.
  • Only an ‘owner’ of land at the date of reservation can claim compensation for injurious affection.
  • The ‘owner’ of land may include ownership obtained through testamentary or intestate succession from the owner at the date of the reservation.
  • Subsequent purchasers of reserved land cannot claim compensation for injurious affection.
  • Owners of reserved land may claim compensation either when they sell the land or when a development application is refused or approved subject to unacceptable conditions.

If you are seeking clarification on your rights to claim compensation, please do not hesitate to contact the team at Glen McLeod Legal.

[1] Leith v Western Australian Planning Commission [2014] WASC 499.

[2] Western Australian Planning Commission v Southregal Pty Ltd & Anor; Western Australian Planning Commission v Leith [2016] WASCA 53; 332 ALR 477.

[3] Western Australian Planning Commission v Southregal Pty Ltd & Anor; Western Australian Planning Commission v Leith [2017] HCA 7.

[4] see Kiefel and Bell JJ at [1] – [56]; Gageler and Nettle JJ at [57]-[95]; C.f. Keane J dissent at [96]-[170].

Chelsea White

Chelsea White started at Glen McLeod Legal in March of this year and is in her fourth year of a double degree at Murdoch University, studying a Bachelor of Laws and Bachelor of Arts majoring in Sustainable Development. Chelsea has previous work experience as a Law Clerk when she began clerking at MGB Legal 14 months ago. Outside of work she is a volunteer Surf Life Saver and IRB Crewie for the Coogee Beach Surf Life Saving Club and enjoys playing social mixed netball. Chelsea has a keen interest in environmental law and responsible urban and regional development. She looks forward to working in these areas at Glen McLeod Legal.

Western Australians, particularly those living in rural areas, are well versed on the threat of bushfires every summer. State Planning Policy 3.7 – Planning in Bushfire Prone Areas (SPP 3.7) and its associated Guidelines for Planning in Bushfire Prone Areas were introduced in 2015, in an effort to reduce the impact that bushfires have had on property, infrastructure and most importantly, lives. The policy applies to all land designated as bushfire prone by the Fire and Emergency Services (FES) Commissioner and addresses how bushfire risk management should be implemented. The current map of bushfire prone areas can be found on the website of the Department of Fire and Emergency Services.

SPP 3.7 requires high risk development applications to contain a Bushfire Management Plan (BMP), and for an assessment of the bushfire attack level (BAL) to be undertaken; where the application must receive a BAL below 12.5 to avoid an assessment against the bushfire protection criteria. These criteria consist of four elements; location, siting and design of development, vehicular access and access to water. Each element includes; a desired outcome, acceptable solutions and a statement of how to best achieve the intent of the relevant bushfire element.

Through our experience in acting for clients developing land in bushfire prone areas, we have found that one of the most challenging requirements in SPP 3.7 is the need in some instances for land to be serviced by two public roads. We make the comment that entire town sites such as Yallingup and Grace Town in the South West are accessed by a single public road and therefore, would fall short of the requirements of SPP 3.7.

Future development in bushfire prone areas should be guided by a strong understanding of SPP 3.7 and its implications. The Department of Fire & Emergency Services has advised that applications for development or subdivision in vulnerable areas will not be supported unless accompanied by an effective and workable BMP developed by an accredited bushfire practitioner. These new measures are in place to preserve life and mitigate against the risk of bushfires, though it may result in developers being refused approval for projects if the appropriate bushfire prevention regulations are not met. Please contact the Glen McLeod Legal team if you would like to discuss your development in a bushfire prone area or would like to clarify any aspect of SPP 3.7.

Glen at a conference

Murdoch University School of Law and Adjunct Professor Glen McLeod hosted a one day conference about the impacts of climate change on environmental law. The conference was supported by the International Bar Association (IBA), the Perth Convention Bureau, the National Environmental Law Association (NELA), Glen McLeod Legal (GML) and Murdoch University. About 150 participants listened and engaged the speakers and discussion fora and speakers and audience together created a highly thoughtful and informative atmosphere. The topics of the conference pivoted around the broader climate change issue but looked at it from very different perspectives.

After a brief introduction by the Dean of Murdoch Law School, Professor Jürgen Bröhmer, The Hon. Justice Brian J Preston SC, Chief Judge, Land and Environment Court of NSW and currently the Co-Chair of the IBA Working Group on a Model Statute on Climate Change Claims and Remedies opened up and spoke about the objectives of such a model statute and on the challenges such a huge undertaking faces having to take account of the many different jurisdictions on the planet and the different legal cultures underpinning them.

The conference then focussed on Western Australia and on the core principle of sustainable development. Judge David Parry from District Court in WA and formerly Deputy President of the State Administrative Tribunal spoke about “Sustainable Development Principles Recognized and Applied in WA Planning Cases” and Glen McLeod, Adjunct Professor and Principal of Glen McLeod Legal, looked at the extent to which those principles apply in the context of the WA Environmental Protection Act 1986. This session was rounded off by Dr Tom Hatton, Chair of the Environmental Protection Authority of WA, who shed light on “The WA Environmental Protection Authority’s Climate Change Policy”.

In the afternoon, two former State Ministers gave their insights on very distinct matters. Cheryl Edwardes, (a former Minister for the Environment) spoke about “Climate Change and the Mining Industry in Western Australia” but actually gave an impressive account on how climate change policy is impacting on board rooms in mining and other industries and to what extent it is actually industry that is driving much of the climate change agenda because of the directors’ duties legal framework. Alannah MacTiernan explained that the drivers for the abolition of ‘as of right’ ministerial planning appeals were the volume and the absence of any transparency or adherence to natural justice. She expressed the view ministerial environmental appeals would benefit from a proper hearing process to build public confidence in decision making.

In future articles we will be providing further detailed content on the substantive points raised by the conference speakers. You can still access the full conference programme here.

a park and buildings

In the recent matter of City of Wanneroo v Scutti [2016] WASAT 102 (Scutti) the State Administrative Tribunal (Tribunal) was faced with a question of whether land identified as ‘public open space’ under the Agreed Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6 (Structure Plan), was injuriously affected pursuant to section 174 of the Planning and Development Act 2005 (WA) (PD Act).  The relevant planning scheme was the Shire of Wanneroo District Planning Scheme No. 2 (Scheme).

The Respondent submitted that the land was reserved within the meaning of s174 of the PD Act because the land was and identified as ‘Public Open Space’ in the ASP 6, thereby having the effect of prescribing its use. The Respondent argued that this prescription caused the land to be classified as a ‘Local Authority Reservation’ under the Scheme and therefore was injuriously affected.

The Tribunal held that pursuant to sections 173 and 174 of the PD Act, injurious affection can only arise as a consequence of making or amending a planning scheme. As such the Tribunal had to determine whether the adoption of a Structure Plan was equivalent to, or could constitute, the making or amendment of the Scheme.

In determining that the two processes were not equivalent, the Tribunal made the following findings:

  • amending a planning scheme requires a rigorous process under sections 72 and 87 of the PD Act including referral to the Environmental Protection Authority (EPA), final determination by the Minister, publication in the Government Gazette, with no appeal;
  • in contrast, adopting a structure plan does not require referral to the EPA. The final determination is made by the WAPC not the Minister, there is no requirement for gazettal, and there is a right of appeal;
  • the Scheme was gazetted before the Structure Plan and therefore, the Structure Plan could not be said to have been part of the original Scheme, neither did it become upon its adoption, a part of the Scheme;
  • nothing in the Scheme provided that a Structure Plan is incorporated as part of the Scheme. Rather, certain provisions of a Structure Plan may apply ‘as if its provisions were incorporated…and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme’;
  • the Structure Plan was not a Residential Design Code Map within the meaning of the Scheme; and
  • on the above basis, the Structure Plan was not incorporated into the Scheme and its adoption was not equivalent to an amendment of the Scheme.

Importantly, the Tribunal determined that the Structure Plan was a circumstance that caused relevant provisions of the Scheme, that had been in existence since the making of that Scheme, to potentially have the effect of causing injurious affection to the land.

In applying that reasoning and the relevant provisions of the Scheme to the circumstances of Scutti, the Tribunal concluded that nothing in the Scheme or in the text of the Structure Plan could be said to identify the land as a reserve. Thus, no right to claim compensation for injurious affection was available.
A refinery with a dusky sky in the background

We have previously written about a related matter in a blog article discussing Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104 (Wattleup Road 2015). In this article we will provide a brief synopsis of the previous proceedings and the recent application for judicial review in Wattleup Road 2016.

The case concerned an application for judicial review of a report and recommendation made by the State Administrative Tribunal (Tribunal) in 2014 to the Minister for Planning (Minister) (2014 Report). Wattleup Road Development Company Pty Ltd and Primewest Pty Ltd (Applicants) sought to quash the 2014 Report on the grounds that the Tribunal took into account irrelevant considerations and thus erred in law. One particular ground of note was the contention that the precautionary principle was an irrelevant consideration in the determination of an application for subdivision approval pursuant to the PD Act.

The court dismissed the application and affirmed the 2014 Report.

Application to the Tribunal

The Applicants sought approval from the Western Australian Planning Commission (WAPC) for the subdivision of approximately 10.8 ha of land in Hammond Park, located near the Alcoa refinery. The Applicants applied to the Tribunal for review of the deemed refusal (Review).

Call in by the Minister for Planning

After the Review was lodged with the Tribunal, the Minister called in the application and directed the Tribunal to hear the Review and, rather than decide itself, refer it with a recommendation to the Minister for determination. Alcoa of Australia Ltd (Alcoa) was granted leave to intervene in the proceedings.

The Tribunal recommended the application be dismissed and the subdivision application be refused. In making its recommendation, the Tribunal considered and applied the precautionary principle, which is triggered by the satisfaction of two conditions precedent:

  • a threat of serious or irreversible environmental damage; and
  • scientific uncertainty as to the nature and scope of the threat of environmental damage.

The Tribunal considered that there was a threat of serious and irreversible environmental damage arising from the impact on the proposed subdivision of dust emissions from the Alcoa refinery, particularly from the residue drying, disposal and storage area: Wattleup Road Development Company Pty Ltd and the Western Australian Planning Commission[2011] WASAT 106 (Wattleup Road 2011).

Appeal

The Applicants instituted an appeal. The Court of Appeal dismissed the appeal on the basis that a recommendation to the Minister is advisory in nature and not a decision to which a section 105(1) appeal applies: Wattleup Road Development Company Pty Ltd v Western Australian Planning Commission [2015] WASCA 104.

Judicial review

The Applicants also commenced proceedings for judicial review of the 2014 Report and recommendations. The preliminary issue regarding whether judicial review was available to the Applicants was answered in the positive in Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [2016] WASC 11. Subsequently, the the Supreme Court dismissed all of the Applicants grounds for review in Wattleup Road 2016. In doing so, the Supreme Court made a number of important points:

  • in preparing the 2014 Report and recommendation to the Minister, the Tribunal was acting as an administrative tribunal, as such the broad test for jurisdictional error applied;
  • the purpose of section 3(1)(c) of the PD Act is to ‘promote the sustainable use and development of land in the State’. There is nothing in the PD Act which expressly excludes consideration of the precautionary principle;
  • consideration as to the sustainable use of land clearly invites consideration of environmental factors;
  • accordingly, the Tribunal was not in error by having regard to the precautionary principle or how it applied to the facts of the case;
  • the precautionary principle is to be taken into account in situations where it is assumed that there will be serious or irreversible environmental damage, however this does not necessarily mean that an application must be refused, rather it is one of the factors to consider when a decision maker is deciding how to proceed;
  • the Tribunal correctly applied the precautionary principle as one of the factors when balancing the planning considerations and considering the matter in the circumstances of the case;
  • taking into consideration the precautionary principle does not elevate it to a presumption of law. Had the Tribunal done so it would have been in error;
  • the Applicants proposed conditions on the land title, which notified potential residents of the risk, did not have any effect on such risk manifesting and therefore did not make that risk any more acceptable;
  • a decision maker is not required to expressly mention every relevant consideration in order to establish that the consideration was taken into account; and
  • an adverse planning precedent is a relevant consideration, even in circumstances where the application itself is unobjectionable but approval is likely to lead to other developments of similar character, the totality of which would prove objectionable.
    Conclusion
  • The broader implications of this matter relate to the proposed buffer legislation surrounding the Kwinana Industrial area. Given the political nature of these issues and the forthcoming State election it will be interesting to see if the Applicants will appeal the decision or if any final determination will be made by the Minister in the short term.
children's city road carpet

The State Government has developed and released a vision for Perth’s future transport network in anticipation of an expected population of 3.5 million. The plan aims to address the key findings of the ‘Public Transport for Perth in 2031’ report, produced by the Department of Transport, which highlighted the need for a city to have an effective public transport system for the vital role it plays in creating competitive economies, liveable communities, and reducing the reliance on fossil fuels.

The plan is focussed on developing an integrated transport network which is focused on connecting major activity centres. It prioritises active and public transport to meet the significant increase in travel demand as Perth’s population approaches 3.5 million. The plan will be implemented through various public transport strategies, such as:

  • an ‘East Wanneroo Rail Link’, which will service Morley, East Wanneroo and the northern suburbs;
  • a Stirling-Murdoch Orbital, which will be mostly underground, linking specialist hospitals and university centres;
  • extending existing rail lines to cater for growing suburbs;
  • an inner-city subway connecting central Perth, East Perth, West Perth, Northbridge, Leederville;
  • a light rail transit servicing the University of Western Australia, Queen Elizabeth Medical Centre and Canning Bridge; and
  • facilitating the development of on-demand transport and new technologies such as ride-sharing, ride-splitting and driverless vehicles.

Additionally, the plan addresses the need for expanding and widening the existing freeway network, creating new highways in the northern and southern suburbs and completing the Perth Freight Link. New technologies will be used to manage traffic flows and to provide drivers with real-time information on travel times, average speeds and general road conditions.

In a bid to promote active living and reduce congestion, the plan seeks to promote cycling as a more convenient travel option and aims to increase the cycle network from 172km to 850km. This will be assisted by providing additional river crossings and end-of-trip facilities in all major activity centres.

The plan is open for comment until 5:00pm, 28 October 2016. If you wish to comment, or require further information, see the below link: http://www.transport.wa.gov.au/TransportPlan

Aerial photo of tractor harvesting on farmland

The Productivity Commission is undertaking a 9-month public inquiry into the regulatory burden on farm businesses across Australia and released its draft report on 21 July 2016. The focus of the inquiry is on the regulations that have a material impact at each key stage of the supply chain that affects the competitiveness and productivity of Australian Agriculture. This includes the preparation of the land where clearing is regulated to protect native vegetation and biodiversity.

The purpose of the inquiry is to identity government regulations that impose an unnecessary burden on farming businesses. Where legitimate policy goals underlay those regulations, the Commission will assess whether there is scope to achieve the regulatory objectives in a more efficient manner.

Some of the key concerns heard by the Commission regarding native vegetation and conservation regulations are:

  • regulations are duplicated across different levels of government and a farmer wanting to clear trees may need approval from both the Australian Government under the Environmental Protection Biodiversity Act 1999 (Cth);
  • in some cases, clearing is administered in an overly bureaucratic and inflexible fashion where environmental harm is not tolerated, even for cases which may result in large social or economic benefits; and
  • generally, regulations place considerable costs on farm businesses, including the cost of conserving species and ecosystems that benefit the wider community.

The key advice provided by the Commission in the draft report is that native vegetation and biodiversity conservation regulations should be changed so that regulatory agencies consistently consider economic, social and environmental factors and so that decisions are based on an assessment of environmental risk. Additionally, better use could be made of market-based approaches to aid conservation of native vegetation and biodiversity. This may include governments buying environmental services such as vegetation retention and management from landholders, thus taking the financial and conservation burden off landholders.

The final report will be published after further submissions are received and public hearings held. Submissions in response to the draft report are due by Thursday 18 August 2016. In Western Australia, the public hearing will be held on 16 August 2016 at Mantra on Murray (395 Murray Street, Perth).  Representatives from Glen McLeod Legal will be present at the public hearing and would be pleased to discuss any of your queries.

Rule and pencil on top of an architectural drawing of a house

It is of infinite importance to the public that the acts of magistrates should not only be substantially good, but also that they should be decorous.

–       Lord Kenyon, C.J., The King v. Sainsbury (1791), 4 T. R. 456.

We have previously written about the imposition of penalties for planning offences in a blog article relating to Taylor v City of Kwinana [2015] WASC 252 (Taylor).  In this article, we refer to the recent planning case of City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 in which the Court of Appeal confirmed the excessiveness of the penalty imposed by a Magistrate in the first instance.

Bayblue Holdings Pty Ltd (Bayblue) was convicted in the Magistrates Court of the offence of failing to comply with a direction given to it under s 214(3) of the Planning and Development Act 2005 (WA) (PD Act).  Bayblue carried out works involving extending part of the existing roof line by 6 metres to enclose an area forming a secure storage area. Other alterations had also been undertaken prior to Bayblue becoming owner of the land.  Bayblue eventually sought retrospective planning and building approval for all existing unlawful development on the land, which approval was granted by the City of Swan (City).

Notwithstanding the grant of retrospective approval, the City lodged a prosecution notice on Bayblue. The Magistrate imposed a fine of $300,000 plus a daily penalty of $48,500 totaling $348,500.

On appeal to the Supreme Court, the conviction was quashed on the basis that the relevant entities that actually undertook the unauthorised alteration works were not Bayblue. A judgment of acquittal was entered, however, the Court went on say that if it were necessary to separately evaluate whether the penalty was manifestly excessive, it would uphold that ground and impose no penalty.

The City of Swan (City) appealed the Supreme Court’s decision on the ground that Bayview did undertake the subject development after it became the owner of the land.  Before the Court of Appeal, Bayblue conceded that this ground should be upheld.  In considering the mitigating circumstances and the facts of the case as submitted by Counsel for Bayblue, the Court of Appeal sentenced Bayblue to a fine of $17,500 with a daily fine of $100, totalling $27,200.  Clearly, this penalty was drastically reduced (by more than a factor of 10) from that imposed by the Magistrate at first instance.

City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 illustrates a number of important points:

  • non-compliance with a direction issued by a local government has serious consequences and should never be ignored;
  • regardless of whether retrospective planning approval has been granted, prosecution proceedings may be brought for a historical breach;
  • the maximum penalties for a breach of non-compliance with a direction of a local government were significantly increased in 2011 – from a fine of $50,000 and a daily fine of $5,000 – and this increase is an indication that sentences should be increased to reflect Parliament’s revised view of the gravity of offences of that nature;
  • legal representation is highly desirable, particularly when pleading guilty to a planning offence, to ensure that a manifestly unreasonable or excessive fine is not imposed.

Glen McLeod Legal has acted for many clients who have received direction from local government authorities for alleged unlawful structures, alterations or additions to land.  We also act for clients who have had prosecution proceedings issued against them and can assist in achieving fair outcomes in these circumstances.