What is a nuisance?

Nuisance is an area of tort law consisting of private nuisance and public nuisance.  A private nuisance is a tort arising from the substantial interference with the enjoyment of someone’s interest in land.  A public nuisance involves an interference with public rights affecting the public or a broader class of persons and is a crime as well as a tort.

Origin of nuisance

The law of nuisance in Australia originates from 12th century England where nuisance, known as nocumentum, developed alongside the law relating to public thoroughfares, which was introduced to England by Roman law.  Subsequently, among lesser-known examples, the Magna Carta provided for the removal of nuisances that obstructed public rights of way.

Since then, a lot has changed.  However, the fundamental principles of the law of nuisance have been settled in Australia and in England since the end of the 19th Century.

How does it work with other laws?

Modern planning and environmental laws, as well as various other public laws, carry the batten from nuisance to a considerable degree.  However, those laws do not replace nuisance and in many instances are incapable of preventing a person from protecting their interests by carrying out an action in nuisance.

Current status and recent developments

Elsewhere on this website, we have discussed the contemporary application of the law of nuisance in a number of contexts and by reference to the decisions of Barr & Ors v Bifffa Waste Services Limited [2012] EWCA Civ 312 (resident action against odour emanating from a waste plant) and Marsh v Baxter [2014] WASC 187 (financial loss suffered by non-GM crop grower after GM canola blew onto their land).

What is the future for nuisance?

The categories of nuisance are not closed and nuisance is continually being expanded and refined in interesting ways in common law countries internationally.  In the absence of civil liability legislative changes, we expect this trend to remain.

We continue to be instructed on a number of nuisance matters arising from land use conflicts.

A row of coloured pencils


‘Much of the work we undertake involves dealing with local and state government departments.  Whether we may, for example, act for a client who lodges a development application, objects to the imposition of infrastructure affecting property rights, or seeks compensation for losses suffered due to a government decision, information is often difficult to come by.  For this reason, we commonly make information requests on local and state government agencies under the Freedom of Information Act 1992 (WA) (Act).

Although the Act purports to provide the public with a legally enforceable right to government information, agencies do not always grant access to information willingly.  This can be a significant obstacle for clients who want to know more about how a past, current or future government decision may affect them and their rights.

Structure of the FOI Act

The reluctance of many agencies to grant access to information is curious when in light of the underlying objectives and intention of the Act.

Section 3 of the Act establishes the ‘general right of access to State and local government documents’ and requires that certain documents be made available to the public.  Further, section 3(3) provides that nothing in the Act is ‘intended to prevent or discourage the…giving of access to documents…otherwise than under this Act’.  The reference to ‘otherwise than under this Act’ is a reference to Schedule 1, which contains a detailed list and description of matter that may be exempt from disclosure under the Act.

Putting aside for one moment the exemptions, it is clear that the general right of access should be the starting point for an agency receiving an information application and that the ability for an agency to claim an exemption should only be invoked as a last resort.  There should be a presumption that access to information is granted.  Unfortunately, some agencies appear to approach the task in a contrary manner, turning the application into a quest for claiming exemptions under Schedule 1.  This is add odds with an agency’s duty under section 4 of the Act to assist the public to obtain information and allow access to documents to be obtained promptly and at the lowest reasonable cost.

The types of matter exempt from disclosure include deliberations of Cabinet and Executive Council, matters that could damage inter-governmental relations, personal information, trade secrets, commercial and business information, deliberative processes of government, information subject to legal professional or parliamentary privilege, and confidential communications.  Almost every exemption contains the qualification that ‘matter is not exempt matter if its disclosure would, on balance, be in the public interest.’

Section 102 provides that in any proceedings, generally the burden of proof lies with the agency to establish that its decision was justified.  If however, the applicant alleges that it would be in the public interest to grant access to the information, the applicant bears to onus of proof.

FOI Process

In broad terms, obtaining documents under the Act can be divided into three stages.  The first stage is to prepare the original information application.  The application should not be too broad as the agency may, with notice, reduce the scope of the application to make it more manageable.  This process may result in the agency missing critical documents.  The application should also not be so narrow that the agency can discharge its duties by providing a single document matching the exact description of the request.  A balance is required.  Following receipt of the application, the agency must decide whether to grant or refuse access to documents or parts of documents.  Under the Act, the agency must make a decision within 45 days.  The average number of days is 22.9.[1] For applications that are complex or sensitive, our experience is that agencies take the full 45 days.

The second stage can be entered if the agency refuses access to documents an applicant may seek an internal review.  When applying for an internal review, particulars of the original decision must be provided.  The Act does not require the applicant to make submissions or provide grounds for the review, however, this would be advisable.  The agency has another 45 days to make a decision to uphold or modify the original decision and must appoint a different decision maker who must not be subordinate to the original decision maker.

The third stage provides an applicant with the right to seek an external review of the agency’s internal review decision. The Act establishes the body responsible for hearing the external review, the Office Information Commission (OIC), and provides the process the OIC undertakes.  The OIC takes an application for external review as a complaint against the agency withholding information.  In an effort to maintain independence, the OIC is not an office of the Public Service.  The external review process is protracted and involves making brief initial submissions, participating in a conciliation conference and possibly making further detailed submissions or attending a hearing.  At the end of the process, the OIC makes a preliminary decision which it provides to the parties before publishing.  This provides a final chance for the agency to provide the documents before a public decision is published, revealing the dispute between the parties.  Even if the decision is in the favour of the agency, the agency may suffer a degree of reputational damage in the public eye.  After all, it is in essence denying the public a document that has been alleged to be in the public interest.

In our experience, making a third party appeal to the OIC is the only way in which sufficient pressure can be placed on an agency to force it to uphold a public right.  It is unfortunate that such action has to be invoked to obtain public documents, and concerning that agencies use this to their advantage.  It is not uncommon for agencies to provide the documents at the final stage, just prior to the final decision being made.

The OIC has statistics published in its Annual Reports on which exemptions are most commonly used by agencies.  The most common exemptions claimed are the protect personal privacy, legal professional privilege , commercial or business information of private individuals and deliberative processes of government.  There is a body of decisions published on the OIC website, which inform how these exemptions have played out for information applicants who challenge the agencies decision through to the OIC external review stage.  It is our impression that the OIC generally sets the bar very high for the agency claiming the exemption.  This is considered as being consistent with the objects and intent of the Act.  It is however, disappointing that agencies continue to claim exemptions in circumstance where they struggle to meet the required burden of proof.

Interesting case

Not all disputes that arrive at OIC relate to the exemptions under Schedule 1.  There has recently been a novel matter that has been decided by the OIC, and more recently, appealed from the OIC to the Supreme Court.  Such appeals can only be on a question of law. West Australian Newspapers Ltd and Department of the Premier and Cabinet, Re [2015] WAICmr 9 involved a request by the applicant for documents relating to the government’s proposed Metro Area Express (MAX) light rail project.  The agency refused access to some documents on the grounds that they were created in Ministers’ offices during the caretaker period prior to the election and as such were not a ‘document of an agency’ as defined under clause 4 of the Glossary to the Act.  The agency alleged that the documents could not be the subject of an information request under the Act.  The OIC found that the disputed documents came within the definition of ‘relating to the affairs of another agency (not being another Minster)’ under clause 4(2) of the Glossary to the Act and ordered they be released.

As reported in a recent news article, the agency is seeking to appeal the decision of the OIC, on the grounds of ‘principle’.

We leave you with the words of the esteemed British philosopher, jurist and social reformer, Jeremy Bentham: ‘Where there is no publicity there is no justice.’[2]

[1] Western Australian Government. Office of the Information Commissioner, Annual Report 2014.

[2] Jeremy Bentham, Constitutional Code, Book II, ch. XII, sect. XIV

Aerial view of freeway interchange

Wallelup Road development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104

The Appellant (Wattelup) applied to the first respondent, the Western Australian Planning Commission (WAPC) for approval to subdivide 3 lots of land at Wattleup Road, Hammond Park (Land). The Land is in close proximity to land used by the second respondent, Alcoa of Australia Ltd (Alcoa), for the drying, disposal and storage of bauxite residue from its alumina production facility.  Wattleup proposed to subdivide the Land into, inter alia, 147 residential lots. Another party, Primewest (Wattleup) Pty Ltd, applied to the WAPC for approval to subdivide two adjoining lots.

Under s 253 of the Planning and Development Act 2005 (WA) (PD Act), there was a deemed refusal of the subdivision applications which enlivened an entitlement to apply to the State Administrative Tribunal (SAT) for a review of the deemed refusals.

After the SAT had received the review applications, the Minister for Planning (Minister) ‘called in’ the application under s 246(2)(b) of the PD Act. The provision directed the SAT to hear the applications but, without determining them, to refer them with recommendations to the Minister for determination.

The SAT heard the applications and recommended:

  1. the applications for review be dismissed; and
  2. the deemed refusals of the subdivision applications by the WAPC be set aside and in their place decisions are substituted that   subdivision approval is refused for each of the proposed subdivisions.

Wattleup commenced an appeal in the Supreme Court from the SAT’s recommendation. The preliminary question was whether the SAT’s recommendation is a ‘decision’ for the purpose of s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 105 of the SAT Act is the source of the Supreme Court’s jurisdiction to hear and determine appeals from the SAT.

Wattleup contended that the SAT’s conclusion and its recommendation are a ‘decision’ within the meaning of s 105(1) of the SAT Act. It submitted that ‘decision’ should be given its natural and ordinary meaning of ‘a conclusion or resolution reached after consideration’ or a ‘choice or judgment’.

The WAPC submitted that the meaning of in s 105(1) of the SAT Act is not sufficiently broad to encompass a recommendation to the Minister made under s 246(2)(b) of the PD Act. Alcoa relied on the decision of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. ‘Decision’, when used in the context of judicial or administrative proceedings, refers to a determination that effectively disposes of a matter in hand, that is, has an operative effect.  Accordingly, Alcoa submitted that a recommendation under s 246(2)(b) of the PD Act, which is merely advisory, is not a decision.

A Proceeding before the SAT commences when an application under s 42(1) of the SAT Act is accepted by the Executive officer of the SAT. The SAT Act makes provision for the enforcement of decisions of the SAT in s 85 and s 36. The term ‘decision’ is defined in s 3(1) as including an order, direction, or determination of the Tribunal.

The SAT Act is not generally the source of the SAT’s jurisdiction to review particular decisions. That jurisdiction comes from enabling Acts, such as the PD Act, which specify the particular reviewable decisions to which the SAT’s general functions and powers will apply.

The appellant’s subdivision application was made under pt 10 of the PD Act, which prohibits subdividing any lot without the approval of the WAPC.  Section 251 of the PD Act enables an applicant to apply to the SAT for a review of a decision by the WAPC. The reviewable decision in this case was the deemed refusal by the WAPC to approve Wattleup’s plan of subdivision.

Section 246 and 247 of the PD Act deal with the ‘call in’ system, which applies to an application made to the SAT if the Minister considerers that the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by the Minister. The Minister may direct the SAT to hear the application but without determining it, to refer it with recommendations to the Minister for determination.

But for s 246(2)(b) of the PD Act the SAT would not have jurisdiction or power to make recommendations of the type in issue in this case. An enabling Act may nominate any conduct of a decision maker. The direction of the Minister under s 246(2) of the PD Act takes what was a reviewable decision outside the scope of the SAT’s final review powers.

The PD Act empowers the SAT to perform an advisory function that is otherwise outside the scope of its functions and powers under the SAT Act and does not make express provision for an appeal from the exercise of that advisory function.

The outcome of this case is governed by the meaning of the expression ‘decision of the Tribunal in the proceeding’ from s 105(1) of the SAT Act. The terms defined in s 3 of the SAT Act are wide enough to capture most of the outcomes of the exercise of the decision making powers conferred on the SAT. The definition would extend to rulings and other similar adjudications made by the SAT. However, a recommendation is not an order, direction, determination or other similar outcome.  In McLure P’s view the definition is not wide enough to include a recommendation.

The decision confirms that a recommendation to the Minister following a ‘call in’ is not reviewable by the Supreme Court for the purposes of s 105 of the SAT Act. The Minister is yet to make a decision regarding the recommendation.

Aerial view of a Melbourne suburb

The right of citizens to enjoy the economic benefits of property in which they have invested is an emotionally and politically charged subject, with a long history. Into this tricky area of law and policy, the Western Australian Government took a step on 27 November 2014, when it introduced into Parliament a Bill entitled Land Acquisition Legislation (Compensation) Amendment Bill (Bill). This short article provides some comment on the Bill and its context.

Reform in this area has been called for many years by Parliamentary Committees and the Law Reform Commission, as well as various sectional interests, principally rural landholders and to some extent the property industry. The legal and valuation professions have also at times voiced concerns about the fairness of the law in this area and how it is administered.

My conclusion is that the Bill is likely to be a disappointment to those who were expecting substantial reform in this area of the law. My reasons for coming to this view are stated briefly below.

The Bill is short. In 17 sections spread over 11 pages, it seeks to:

  • reform to a limited extent section 241 of the Land Administration Act 2003(WA) (LA Act), which sets out landowners’ entitlement to compensation when the State takes their land; and
  • reform the power of utility providers to take interests in land for their infrastructure.

The main amendment to section 241 is the insertion of a requirement in section 241(1) that the compensation payable is just. At first glance this is a win for landowners. Unfortunately, it is not a great benefit because it is simply a confirmation of a right that has existed under various principles developed by the Courts.

The other amendment of significance was to section 241, to rectify an anomaly. Only an owner of the freehold, called in law the owner of the fee simple, can at present claim compensation for the additional loss suffered when a parcel of land is severed by the compulsory taking of part of that land; or the reduction in value of the land remaining after the severance.  A claim for the reduction in value to the remaining land is sometimes called ‘injurious affection’. The amendment provides that the holder of a lesser interest, the taking of which causes damage to an adjoining interest owned by the same person, may also claim for the severance or injurious affection damage.

The amendments relating to Water and Energy infrastructure providers are essentially to make it possible to claim for loss of amenity caused by the works.

The Bill, if passed will make a marginal improvement to the lot of landowners in conflict with the state over the value of land taken. It only addresses in a narrow way some problems under the LA Act and does not address other major areas of concern, including:

  • compensation for the reservation of land under the Planning and Development Act 2005 (WA) (P&D Act)-at present owners whose land is affected by a reservation have a narrower range of rights compared with those whose land is taken under the LA Act;
  • the vexed question of the need to clarify the extent to which steps taken by a government agency prior to a talking or reservation can affect the calculation of compensation-sometimes called the Pointe Gourde Principle;
  • in the case of takings under the LA Act and the P&D Act, if the land has environmental values there is much confusion about how compensation should be calculated; and
  • the value of land is diminished by policies or regulations, particularly in the case of environmental measures, without any formal reservation or taking under with the LA Act or the P&D Act.

Many of these issues could be addressed by a more general right to compensation for land affected by the actions of Government. This is a much harder subject for the Government to address but in the end it should not be avoided. One way of doing that would be to broaden the new statutory requirement to calculate compensation justly, so that it becomes a general right to obtain compensation on just terms and is not limited to claims under section 241 of the LA Act. While it is arguable that such a right may exist under current common law and therefore be implied into the State Constitution, in practice this is of little comfort to landowners who would have to fund the enforcement of such rights, possibly in the High Court.

The Government also recently published a Charter on property rights entitled ‘Private Property Rights Charter for Western Australia’ (Premier’s Circular 2014/04, 27/11/2014). It is a policy which ‘aims to ensure proper regard is given to landowners’. Public officers are required to ‘have regard to the principles of the Charter when contemplating or taking government action which may adversely affect private property rights in land.’ The inclusion of the word ‘rights’ in this document is somewhat of a misnomer. It in fact ‘sets out principles to inform the decision making process of public officers’ and is couched in terms of guidance which is so heavily qualified, often by reference to the public interest, that it is unlikely to be of benefit to landowners facing the resources of the State in a dispute over the taking of land. In particular, the Charter makes no reference to existing legal rights of landowners and the importance of public officers following established principles which favour landowners.

In conclusion, the Bill and the Charter are small steps forward which leave unaddressed many issues of importance to landowners.

View of offshore wind farms

A significant contribution to thinking on climate change legal issues was recently published by the International Bar Association (IBA): a report entitled Achieving Justice and Human Rights in an Era of Climate Disruption[1]. The centre-piece of the Report’s release was a forum on 21 October 2014 at the IBA’s annual conference in Tokyo[2]. The Report contains a wide range of recommendations for the short, medium and long term. It proposes measures relating to international dispute resolution and various detailed legal initiatives which will require new domestic legislation. It also covers such diverse subjects as food security and the ethical responsibilities of industry.

Among other things, the Report recommends that in the longer term, states consider recognising as a free standing human right, a safe, clean and healthy environment. Unsurprisingly, the Report devotes some analysis to the relationship between human rights and the environment. This is a subject that arises in the context, for example, of small, low lying island states such as Tuvalu and the Maldives, whose former President Mohamed Nasheed spoke passionately at the conference and famously held an under water cabinet meeting to publicise his concerns.

While the outlook of the IBA Report is international, many of the detailed recommendations will need domestic legislation and may accordingly stimulate thinking on many of the issues and problems associated with climate change law, referred to earlier. For example, the report recommends the drafting of a model statute on legal remedies for climate change and encourages states to enact domestic procedural and substantive law to adopt the statute. An IBA Working Group has been established to draft the model statute.

Climate change law has not been an area of vibrant development in recent years, at least in Australia, except for the town planning context. The quieter subcategories of climate law, include:

  • commercial documentation relating to ‘renewables’, for example wind farms and the clean development mechanism;
  • applying civil liability concepts, in particular relating to causation, from the law of torts, for example negligence;
  • carbon pricing, taxation and emissions trading; and
  • international disputes, for example between countries that stand to lose territory or in the case of the Maldives, disappear with rising sea levels.

The planning context includes sustainable development policy implementation associated with urban planning, with a significant component coming from town planning appellate bodies such as the Land and Environment Court of New South Wales and Western Australia’s State Administrative Tribunal. Some relevant subjects were examined in an articles which I have posted this year. They can be accessed by clicking on their titles, as follows: Environmental Considerations in SAT Review(April 1, 2014) and Reconciling Planning and Environmental Law and Policy in the Local Government Context (September 30, 2014).

There are several reasons why aspects of climate law have been somewhat of a struggle for lawyers. The question of causation in civil claims raises difficulties.  For example, there is hard evidence on declining rainfall in the South West of Western Australia. However, proving the cause in law is not an exercise easily addressed by established principles, developed in a social and legal environment uncomplicated by the variables of climate change. Point source pollution, for example, has been a source of legal action in the tort of nuisance since the start of the industrial revolution in Britain. In those cases, the agent causing damage-for example a ‘smoke stack’ industrial operation-was relatively easy to identify. In contrast, evidence of climate change relies heavily on modelling, an approach fraught with potential debate over the model and the assumptions behind the input data[3]. Identifying particular parties with potential legal responsibility for damage, is very difficult.

In respect of carbon taxing and related areas, including emissions trading, the prime difficulty has been lack of consistency in Government policy and legislative initiatives, which was recently manifested in the abolition of the carbon tax and emissions trading scheme by the Commonwealth.

Even the legal characterisation of green house gaseous emissions has been a source of debate. The emissions trading legislation of the previous Australian Federal Government labeled carbon emissions as ‘pollution’, which troubled those who would argue that a naturally occurring compound like carbon does not fit the established legal concept of pollution, a subject which received considerable attention in the leading Western Australian case of Palos Verdes Estates v. Carbon[4].

The Western Australian Environmental Protection Act 1986 shows its age when it comes to climate change. There is no clear climate change trigger for an environmental impact assessment under Part IV and mention has already been made as to whether climate change agents such as carbon can be properly described as ‘pollution’, under Part V.

The Report’s detail, rigour and focus on practical outcomes combine to make it an important contribution to the learning on climate change law. It effectively establishes a programme of objectives and action for the IBA on climate change and related human rights issues for the short, medium and long terms. The production of a model climate change statute will be awaited with great interest by a wide range of parties.

[1] International Bar Association Climate Change Justice and Human Rights Task Force Report, July 2014, IBA London. The report was released at the IBA Annual Conference, Tokyo, 20-24 October, 2014.

[2] Chaired by Baroness Helena Kennedy QC, with contributions from former US Vice President Al Gore, the former Irish President Mary Robinson, Justice Brian Preston, Chief Judge of the New South Wales Land and Environment Court and two members of the IBA’s Environment Health and Safety Committee, David Estrin and Conor Linehan.

[3] This has been the experience of the author in the use of models in other areas, such as odour and valuation law.

[4] Palos Verdes Estates v. Carbon(1992) 6WAR223. The United States, Supreme Court has held carbon to be a pollutant. See Massachusetts v EPA, 415 F3d 50; 433 Fd 66 (2005); 126S.Ct 2960 (June 26, 2006)

An aerial view of green agricultural fields of different shades of green

The relationship between planning and environmental law and policy was reflected on in a paper delivered by Glen on 18 September 2014 at a Local Government Planners’ Association (WA) breakfast. He reviewed the development of environmental law over the last thirty years or so, with a particular emphasis on local government. That period covers most of his 38 year career in the law, which started with a two and a half year stint in local government.

The subject was covered under six headings, as follows:

  1. Loss of Innocence.
  2. Land Use Conflicts and Buffers.
  3. Ecologically Sustainable Development.
  4. Implementation of Sustainable Development in the Planning System.
  5. Specific Scheme Provisions Relating to the Environment.
  6. Conclusion – where this takes us for the future.

To read the full article, click here.

Aerial view of yellow canola fields with a road in the middle and single red car on the road

The prevention and resolution of land use conflict is a prime objective of town planning and environmental law. Long before these areas of public law developed as discreet disciplines in the twentieth century, the common law had evolved a sophisticated system for resolving private land use conflicts.

The recent Western Australian Supreme Court case of Marsh v Baxter [1] bears witness to this tradition and the common law’s enduring relevance to contemporary social issues. I have commented previously on the use of the common law in the settling of planning and environmental disputes. [2]

A claim was brought against a farmer (Baxter) for the financial loss suffered by neighbouring farmers (the Marshes), when genetically modified (GM) canola was blown by the wind, during harvesting, across a buffer onto the Marshes’ land, thereby allegedly compromising a contract with an organic certifying body.

The Marshes’ claim was unsuccessful. The damage was caused not by the GM nature of the canola, but the method of harvesting[3], which involved cropping in swathes and stacking in windrows.  An alternative method, ‘direct heading’ or ‘direct harvesting’ should have been employed, it was claimed. The Court was not convinced, for several reasons. First, the growing of the GM canola in this case was not illegal[4]. Secondly, the cropping method was a legitimate farming practice. Thirdly, the cropping had been carried out competently. Fourthly, the effect on the Marshes’ contract was not reasonably foreseeable.

Unsurprisingly the Marshes’ claim was brought in nuisance and negligence. These are the obvious common law causes of action in a land use conflict case. Negligence is a body of law that is an expression of the biblical injunction to love your neighbour.  Legally, that means you will not injure neighbour, subject to certain qualifications[5].

Nuisance is an area of tort law with a longer pedigree. The central principle is that you will not interfere unreasonably with the enjoyment of another’s land. This central principle is less qualified in its application than the underlying principles in negligence. In other words, it is stricter. The Court expressed surprise in Marsh v Baxter that the plaintiff’s case concentrated on negligence and not nuisance[6].

There were several findings of legal principle in the judgment of Kenneth Martin J in Marsh v Baxter, which should be noted. One was the affirmation of the principle that it is only in exceptional negligence cases that damages will be awarded to compensate for financial, that is economic, loss[7]. This is a limitation that is not supported by strong logic but rather practical concerns about a perceived need to limit the extent to which economic loss can be litigated. Generally, in negligence, recovery is only possible for physical damage to persons or property[8]. Nuisance, on the other hand, is not constrained by that limitation.

Recently in Western Australia, statute law, in the form of the Civil Liability Act 2002 (WA) has to some extent made it more difficult for plaintiffs in negligence cases, among other things, to prove causation. The Court in Marsh v. Baxter said that Act does not apply to nuisance.[9]

In conclusion, Marsh v Baxter applies well-established common law principles to an unusual set of facts, having at its core the growing of a GM crop. The common law is lightly touched by the Civil Liability Act 2002 (WA) but is not substantially affected. The case confirms the rule that damages are not available in negligence for pure economic loss. The case also shows that the foundation principles of the law of nuisance, which in England have remained unchanged for 100 years and were affirmed in Barr v Biffa Waste Services Limited[10], as described in my earlier article,[11] continue to apply in Western Australia. These cases affirm my experience over many years that land use conflict matters lie at the confluence of town planning and environmental law.

[1] [2014] WASC 187

[2] See in this Blog ‘Buffers Setbacks and Development’, October 24 2012

[3] [2014]WASC 187, [316]

[4] Under the Genetically Modified Crop Free Areas Act 2003 (WA); exemption order published in the Government Gazette, 25 January 2010

[5] Famously, this principle was enunciated by Lord Atkin in the ‘snail in the bottle’ case, Donohue v. Stevenson [1932] AC 562, quoted with approval by Kenneth Martin J at [1]

[6] [2014] WASC 187, [307]

[7] [2014] WASC 187, [336]

[8] Ibid and at [338]

[9]  [2014] WASC 187,  [676]

[10] [2012] EWCA Civ 312

[11] See in this Blog ‘Buffers Setbacks and Development’, October 24 2012

green trees

Decisions of the State Administrative Tribunal (SAT) and its predecessor the Town Planning Appeal Tribunal have played an important part in the conceptual development of the role of environmental considerations in town planning, which has had a close complementary relationship with the development of policy by the Western Australian Planning Commission (WAPC). The SAT and WAPC principles have evolved in line with the development of contemporary notions of sustainable development in a way that is not possible under the State’s environmental legislation, which works within a separate legislative and administrative silo. When the Planning and Development Act 2005 (PD Act) was enacted, it continued with the statutory planning system that had existed in this State since the enactment of the Town Planning and Development Act 1928, save for some important changes, one of which was the inclusion a statement of purposes, in section 3 of the new Act. Those purposes included the promotion of the “sustainable use and development of land”: section 3(1)(c) of the PD Act.

Aerial view of contaminated river

Should The State Administrative Tribunal have a decision-making role under the contaminated sites act 2003?

On 21 January 2014 Glen presented his views on contaminated site appeals in Western Australia at a forum organised by the Australian Land and Groundwater Association. The organiser of the event,  Dr Janet Macmillan said that the

‘… forum brings together a Panel of technical and legal experts to provide their interpretation of what involving the State Administrative Tribunal could mean for the operation of the Contaminated Sites Act and how decision making could be improved.’ 

The forum was being held against the background of the State Government’s Review of the Contaminated Sites Act 2003 (WA) (Act). After examining the present system of Ministerial Appeals, Glen’s conclusion was that the State Administrative Tribunal (SAT) now has a proven track record which places it at the forefront of comparable Tribunals anywhere. It has the flexibility to resolve complex or simple matters, big or small, with relative speed and efficiency, without undue expense. It has been proven to have ‘user friendly’ transparent processes.  The SAT was formed from some 40 or more statutory boards plus a number of appellate bodies. There is no reason why contaminated site appeals from the Contaminated Sites Committee should not fall into the same category. Western Australia is the only state to except environmental appeals from its SAT jurisdiction.

building construction

On 23 October 2013 Peter Swift was acquitted in the Magistrates Court of Western Australia of illegally clearing approximately 14 hectares of native vegetation on his 485 hectare property at Pindicup, near Manjimup in the State’s South West. The case consumed over 3 days of Court time. It is not known whether the State will appeal. The Magistrate, Ms E. Hamilton, published her full reasons for acquitting Mr Swift on 18 December 2008. She found that the State’s evidence was inconclusive as to when clearing had taken place on the land and that in any event the accused had not carried out any illegal clearing.

Mr Swift maintained his innocence throughout what became for him an ordeal that has taken its toll on his health and livelihood. He had never been to Court before this case. If he had been convicted, he faced a maximum fine of $250,000. The offence allegedly occurred under section 51C of the Environmental Protection Act 1986 (WA).

Peter Swift is a large machine mechanic and not a farmer, although he grew up on a farm and has spent most of his life in the country. His property is not big enough to farm commercially and was purchased as a ‘lifestyle’ property in 2007. Ironically, Peter is a committed conservationist who has worked hard to improve and protect the environmental attributes of the property, a fact noted by the Magistrate in her written reasons.  He had no motive for the alleged offence and none was ever suggested by the prosecution, which the Magistrate also noted. The area he was accused of clearing is a fragile salt affected area, with variable shallow soil over rock. It forms part of a seasonal wetland system.

The Magistrate said that Mr Swift impressed her as a witness of truth and genuineness. She said that on the evidence it would simply not have been logical for Mr Swift to clear the land. She not only accepted his evidence that he did not clear the land, but also that of a neighbor, Glynn Bevan, who stated emphatically that no clearing was carried out by Peter Swift.

The prosecution’s case relied on aerial photographs and satellite images, which allegedly showed a loss in vegetation on the contentious 14 hectares, from November 2007 to December 2009. The Court found that the prosecution failed to establish the reliability of its aerial photographs and satellite images. It accepted expert evidence given on behalf of the defence by Dr Chris John that caution must be applied when comparing the two types of images. She also pointed to a number of inconsistencies in the prosecution’s case, some of which arose from the unreliability of the aerial photographs and satellite images.

The Magistrate also found said that acceptance of what the aerial photographs and satellite images portray, without reservation and consideration of other evidence, carries with it the potential for a miscarriage of justice.

One other comment in Magistrate Hamilton’s reasons is worthy of mention. It relates to evidence that Mr Swift carried out maintenance on an open drain previously built under the direction of a Government department, with a root rake. The State had alleged that this constituted clearing of native vegetation. The Magistrate did not agree that the work took place in the period alleged by the prosecution. She added that the allegation, if upheld, would ‘create a farcical situation whose proportions could only be envisaged by Sir Humphrey Appleby.’

What lessons of more general application can be drawn from this case? Clearly, at one level, it is about the discomfort the Magistrate felt in relying on aerial photographs and satellite images to convict a man who she found to be truthful in his claim that he did not clear the land.  It was about whether impressions gained from artificial processes are to be believed over the clear evidence of the accused and his neighbour as to what actually happened on the ground.

At another level, the case raises questions about how the legal system should deal with clearing cases, involving as they usually do, ordinary citizens who would not normally see the inside of a criminal court.  It has to asked whether there are better ways of dealing with issues of this kind, for example, through the State Administrative Tribunal, which is not a criminal jurisdiction and has a good record in resolving disputes in mediations and hearings.

There is also a broader question about the complexity of the laws relating to clearing and whether some revision should be considered. This is not about the objectives of the laws but rather how the objectives can be achieved fairly, with due deference to well established legal principles aimed at establishing an equitable balance between the interests of the citizen and the State.

Glen McLeod represents Mr Swift. The views expressed above are entirely personal.