Glen McLeod Legal is delighted to announce the admission of Emiko Watanabe to the Supreme Court of Western Australia. Emiko’s admission was moved by Glen McLeod on 5 November 2021.

Emiko has been a valued part of the Glen McLeod Legal team since March 2020 and we look forward to watching her growth in the legal profession.

An aerial photo of residential development and agricultural land separated by a main road

With the growing demand for inner-city living and urban encroachment on the rural fringe there are many considerations for balancing competing demands from existing developments and new proposals. As new developments arise, these often come into conflict with existing land uses including potential dust, noise, odour and amenity impacts.

  1. A new development proposal will create a conflict with an existing land use – what can I do?

Where a development proposal has been advertised, it is possible to make a submission to the relevant local government, the Western Australian Planning Commission (WAPC) or the Development Assessment Panel (DAP) on matters that affect your interests.

It is also possible to make an application for a deputation at a local government council meeting, WAPC meeting or DAP meeting to inform decision makers of your concerns and the impacts of any land use conflict that may arise.

  1. Can land use conflicts occur between existing uses?

Yes, land use conflicts can also arise between two existing land uses. For example, land use conflict can arise where an existing land use expands or becomes more intense or it simply becomes intolerable to the neighbouring land users.

The most common examples of land use conflicts are between more sensitive uses such as ‘Residential’ and ‘Retail’ uses and ‘Industrial’ or ‘Rural’ land uses which often cause emissions of noise, dust or odour.

  1. I want to purchase or develop property – how can I know if there are potential land use conflicts that may arise?

A local government or a planning authority has the power to impose a notification on title as a condition of development approval, where it considers it desirable that prospective proprietors of the land should be made aware of a factor affecting the use or enjoyment of the land or part of the land. A notification on title can be imposed to make prospective residents aware of potential dust, noise, odour and amenity impacts that may not otherwise be obvious from a physical inspection of the land itself. For further details on how notifications on titles may operate, please see our previous blog articles on potential odours and transport noise and potential impacts to views.

There may also be relevant State planning and environmental policies (e.g. buffers and separation distances that apply to certain industries) that need to be considered to avoid land use conflict, which may affect the development potential of your property.

  1. Can I challenge conditions that are placed on a development approval in relation to land use conflicts?

Conditions can be challenged at the draft conditions stage or once the conditional approval has been granted by lodging appeal proceedings at the State Administrative Tribunal.

In relation to planning decisions, only the applicant or the owner of land in relation to a development approval can appeal the conditions of a development approval.

In relation to DAP decisions, only the person who has made a DAP application can appeal any condition imposed by a DAP. In either of the above cases, the appeal must be lodged within 28 days of the date on which the decision making authority gives notice of the decision.

If there are review proceedings in the State Administrative Tribunal, a third party who has a sufficient interest in the matter may be able to make submissions. See our blog article on becoming involved in planning proceedings.

  1. Guidance – legal issues

If you would like to protect your interests and ensure your rights are not unduly impacted, we recommend you seek legal advice regarding your legal and alternative avenues.

Development approval from the local government or the Western Australian Planning Commission will not exempt you from the requirement to obtain environmental approvals in relation to dust, noise or odour. We recommend you seek legal advice in relation to the need for both planning and environmental approvals.

Our capability statement (view here) provides further details of the types of matters we have assisted with. We would be pleased to discuss your matter further with you. We can be contacted by telephone on (08) 6460 5179 or by email at admin@glenmcleodlegal.com.

A curving facade of windows

There are generally no third-party appeal rights in relation to planning decisions in Western Australia. Only the applicant for planning approval or a person to whom a direction or notice is given by a planning authority may appeal to the State Administrative Tribunal (SAT). In some limited circumstances it may also be possible to seek judicial review of the planning decision.

  1. Can I become involved in State Administrative Tribunal planning proceedings as a third party?

Involvement in SAT planning proceedings as a third party can occur in limited circumstances. Third parties may become involved by intervening under section 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The third party will need to seek the SAT’s leave to intervene in the proceedings. Whether the SAT will grant leave will depend on a number of factors, such as demonstrating a ‘sufficient interest’ in the matter or assisting the SAT in reaching the ‘correct and preferable decision’. These factors have been the subject of recent judicial commentary. We recommend seeking legal assistance to prepare written or oral submissions to seek the leave of the SAT.

In some circumstances, where a third party is not given leave to intervene, it may nonetheless be possible for the third party to make submissions in respect of a planning application under section 242 of the Planning and Development Act 2005 (WA). It is also necessary to apply for the SAT’s leave to do so.

  1. Can I be involved in a SAT mediation as a third party?

Usually, mediation is a confidential process only involving the parties to the proceedings. In some circumstances it is possible to obtain the SAT’s and the parties’ agreement for a third party to participate in the mediation usually only to a limited extent. Leave to participate in a mediation should generally be sought at a directions hearing.

  1. What rights does a third party have if it is allowed to intervene in SAT proceeding?

If the SAT grants leave for a third party to intervene in proceedings, then that third party acquires the same rights and responsibilities as the other parties. This generally means that the intervening party can give evidence, call witnesses and ask questions of the witnesses. The SAT may impose conditions or restrictions on what an intervening party can or can’t do.

  1. Seeking judicial review of planning decisions

In some limited circumstances it may be possible to seek judicial review of a planning decision in the Supreme Court of Western Australia. Judicial review requires the identification of a legal error and cannot stray into the merits of the planning decision.

  1. Guidance – Legal issues

If you want to become involved SAT proceedings as a third party it is advisable to seek legal advice. A lawyer will be able to assist you with submissions to seek leave to be joined as a party or to intervene. This is because the submissions should address the legal principles that guide whether a person can be joined or intervene. A lawyer can also assist you with making submissions, attend the mediation with you or on your behalf or help you prepare your case for a final hearing.

It is also advisable to seek legal advice to consider whether it is possible to seek judicial review of a planning decision. This is because there is a higher bar for seeking judicial review than there is for review proceedings in the SAT.

Our capability statement (view here) provides further details of the types of matters where we have assisted with challenging planning decisions. If you would like to discuss your ability to become a third party in SAT proceedings, please contact us by telephone on (08) 6460 5179 or by email admin@glenmcleodlegal.com.

A rusted darkly coloured surface with the words "caution asbestos" spray painted in white

The Contaminated Sites Act 2003 (WA) is the primary legislation in Western Australia which provides when land is classified as contaminated and establishes a hierarchy for remediation responsibilities. The contamination of land is an important consideration, whether it arises prior to the purchase of land, due to particular land uses such as petrol stations, or a result of an environmental accident such as an oil spill.

  1. What is a contaminated site?

The Contaminated Sites Act 2003 (WA) (CS Act) establishes the regime for reporting, classifying, investigating, and remediating contaminated sites. Under the CS Act, ‘contaminated’ in relation to land, water or a site, means having a substance present in or on that land, water or site at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value. A ‘site’ is an area of land and includes underground water under that land and surface water on the land.

Common substances that could contaminate land or groundwater include hydrocarbon from petrol and diesel fuel, per- and polyfluoroalkyl substances (PFAS), contaminated recycled material or material containing or contaminated by asbestos.

  1. When does a contaminated site require remediation and who is responsible for the remediation?

The only sites that are required to be remediate are sites classified by the Department of Water and Environmental Regulation as ‘contaminated – remediation required’. The hierarchy of responsibility is outlined in the CS Act, which follows a ‘polluter pays principle’. Generally, the person who caused or contributed to the contamination of the site is responsible for remediation of the site. It could, in some circumstances be the owner of the site or ultimately the Government if no other potentially liable party can be found.

Determining the polluter or other person responsible for remediation of a site can be a complex issue. Responsibility for remediation may also be affected by provisions in legal agreements such as leases or contracts for sale.

  1. Contamination caused by a third-party has migrated to my land – can I obtain compensation?

In circumstances where contamination has migrated from one site (the source site) to affect another site (the affected site), the person responsible for remediating the source site is also responsible for the affected site. The person responsible for remediating the source site may also be liable for any loss suffered by you as a result of entering the land to carry out remediation. You may be able to obtain damages and compensation where land has been contaminated by a third-party and requires remediation.

  1. What should I consider when buying or leasing known or suspected contaminated land?

Depending on how you would like to develop the land, it would be important to identify the risks. You could consider:

  • conducting due diligence on site selection including obtaining a detailed history of the site and its land use as well as the land uses of surrounding land;
  • when buying or leasing land, reviewing any pre-sale information or contractual terms or obligations regarding remediation;
  • undertaking searches on the contaminated sites register; or
  • engaging an environmental consultant to carry out a preliminary site investigation.
  1. Guidance – legal issues

Guidance in our experience is often needed to navigate the complex legal and regulatory issues that arise from contaminated sites. We recommend that you seek legal advice at an early stage.

Our capability statement (view here) provides further details of the types of matters we have assisted with including contaminated sites related to privately owned land, large scale waste facilities, service stations and third party compensation for remediation. If you would like to discuss your contaminated sites matter with us, please contact us by telephone on (08) 6460 5179 or by email at admin@glenmcleodlegal.com.

Banksia

Today further amendments to the Environmental Protection Act 1986 (WA) were proclaimed. This second stage of amendments affects the environmental impact assessment process and regulation for the clearing of native vegetation.

A further stage of amendments remains to be proclaimed. These future amendments relate to the implementation of a new ‘prescribed activity’ licensing regime.

For a concise summary of the changes, please read our post here. 

Glen McLeod Legal is pleased to have adopted the Law Council of Australia’s ‘Equitable Briefing Policy’.

Whilst the firm has always been conscious and supportive of briefing women barristers, it has decided to formalise this signing up to the policy.

The policy is intended to drive cultural change within the legal profession by encouraging firms to make all reasonable endeavours to brief or recommend women barristers with relevant seniority and expertise in the relevant practice area.

An open field with one half covered in grass and the other half dirt

City of Swan v All Earth Group Pty Ltd [2021] WASC 279

Background

All Earth Group Pty Ltd (Respondent) were in possession of excess fill material from a recently completed earthworks project. The Respondent offered the fill material to nearby landowners and as a result delivered to and roughly spread the fill material on three neighbouring properties.

The City of Swan (Appellant) unsuccessfully prosecuted the Respondent on three charges, for each property, of carrying out works on land in the City of Swan Local Planning Scheme No.17 (LPS 17) scheme area without having obtained the development approval and thereby contravening section 218(a) of the Planning and Development Act 2005 (WA) (PD Act) which provides that person who contravenes the provisions of a planning scheme commits an offence.

In this case, the relevant provision of LPS 17 was clause 60 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions). The Deemed Provisions are to be read as part of LPS 17. Clause 60 provide that a person must not commence or carry out any works on, or use, land in the Scheme area unless they have obtained the development approval of the local government under the scheme. The Respondent was acquitted of all three charges.

The Appellant sought leave to appeal against the acquittals. The application for leave to appeal was ordered to be heard at the same time as the appeal.

Issues

Three preliminary issues related to whether:

  • the City was trying to run a new case on appeal;
  • if so, should this be permitted; and
  • the magistrate found that the Respondent’s actions required development approval.

The main issues related to the statutory construction of ‘works’ and ‘person’ in clause 60 of the Deemed Provisions.

Held

As to the preliminary issues, Archer J concluded that the City was not trying to run a new case on appeal and that the magistrate did find that the Respondent’s actions required development approval.

On analysis of the Deemed Provisions, other common law interpretations and relevant similar provisions in the Building Act 2011 (WA) it was found that ‘works’ include some action which physically changes the land and constitutes a ‘development’ having regard to the degree of physical alteration (as set out in Ivo Nominees[1]) the permeance of the alteration and all of the circumstances.

A ‘person’ for the purposes of clause 60 of the Deemed Provisions will capture all those who carry out works on land which would fall within the definition of ‘works’, regardless of whether the works done by that person are part of a larger scope of works which would also fall within that definition of ‘works’. Anyone who does ‘works’ without first obtaining development approval will commit an offence.[2]

Archer J held that the Respondent’s delivery and rough distribution of fill material to all three properties constituted ‘works’ which physically altered the land with a level of permanence constituting a development. The Respondent was responsible for ensuring that they were carrying out works under a development approval. The Appellant was granted leave to appeal, and the appeal was allowed.

Conclusion

The classic definition of development was set out in the University of Western Australia v City of Subiaco (1980) 52 LGRA 360. Burt CJ held at [363]-[364]:

In my opinion the definition of ‘development’ in the Town Planning and Development Act makes use of and encompasses two ideas. The first is the ‘use of the land which ‘comprises activities which are done in… or on the land but do not interfere with the actual physical characteristics of the land’ and the second being ‘activities which result in some physical alteration to the land which has some degree of permanence to the land itself’

How much physical works are sufficient to constitute development is a question of fact and degree. Clearly mowing a lawn is too trivial but clearing of vegetation can constitute development.[3]

 

[1] Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45.

[2] Unless works are exempt from requiring development approval, see clause 61 of the Deemed Provisions.

[3] Palos Verdes Estates v Carbon (1991) 6 WAR 223, 235 (Malcolm CJ).

An empty billboard in a field

Carrooda Pty Ltd v City of Gosnells [2021] WASAT 73

Background

Carrooda Pty Ltd and Sansom Nominees Pty Ltd (Applicants) submitted a development application (Application) to the City of Gosnells (Respondent) under the City of Gosnells Local Planning Scheme No. 6 (LPS 6). The development application was for the erection of a 4.45m by 18.99m, double-sided, LED, pylon sign (Sign) located at 3 Austin Avenue, Maddington (Property) and would have frontage to Albany Highway. The Respondent rejected the application on 17 March 2020. On 21 April 2021, the Applicants commenced proceedings in the Tribunal seeking the review of the decision under section 252(1) of the Planning and Development Act 2005 (WA) (PD Act).

During the proceedings, the Applicants sought leave to change the features of the sign to a two panel, 13.07m high sign and the location of the sign. On the orders of the Tribunal, the parties filed an agreed statement of facts. In the statement of facts design of the sign was again amended to be one-sided and reduced in height to 12m. The Respondent contended that change to the design of the sign and its location (Proposed Changes) are substantially different to the original Application and the Applicants were required to lodge a new development application.

Issues

As a preliminary issue, the Tribunal was required to consider whether the Proposed Changes were minor or substantially different and whether the Application remained the same in substance or the amendments were so sweeping that they resulted in effectively a new development application following the test in Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1983) 84 LGERA 71.

Held

In its decision, the Tribunal noted that the land use and land required for the Amended Sign remained the same. The Tribunal also noted that the amended height of the sign will be lower than its original height by less than 10%. The Tribunal considered that these changes to the Application were not significant. The most significant departure from the Application was the location of the sign. However, the Tribunal noted that the new proposed location of the sign was within 50m of the original location and still on the Albany Highway frontage.

Having regard to the above, the Tribunal found the Proposed Changes would not substantially alter the signs appearance to passing motorists or neighbouring properties.

In light of this, the Tribunal held that the Proposed Changes did not substantially change the Application. The Applicants were granted leave to amend the Application in line with the Proposed Changes.

A photo of a building facade with light brown bricks and windows. The windows have red bricks at the top as a design feature.

Sanur Pty Ltd and City of Subiaco [2021] WASAT 90

This was an appeal to the State Administrative Tribunal considering the issues of whether the City of Subiaco could lawfully issue two building orders and two heritage conservation notices with respect to two neighbouring properties that were not fit for human occupation, in a dangerous state and located within a heritage area under the town planning scheme.

Background
The applicant, Sanur Pty Ltd (Sanur), engaged a builder to install hoardings to the facade of their building on land in Subiaco (Property). The builder noticed cracks in the masonry and that the façade was leaning towards the street. Sanur engaged an engineer to inspect the Property and provide recommendations in a report (Report). An inspection at Sanur’s neighbouring property (Wintermist Property) also showed signs of similar cracking. Subsequently, Sanur lodged a development application for the demolition of both the Property and the Wintermist Property. The City issued a building order to Sanur (Building Order) requiring the design and installation of a temporary support structure for the Property’s façade. The City also issued a notice of proposed building order for the Wintermist Property.

Sanur applied to the State Administrative Tribunal (Tribunal) for review of the City’s decision to issue the Building Order. During the proceedings the parties agreed that the City would procure the design of a temporary structure to support the Property’s façade and that Sanur would install it.

The City subsequently issued a heritage conservation notice to Sanur (Conservation Notice) in respect of the Property on the basis that it was not being properly maintained and required repairs. Shortly thereafter, the City also issued a building order (Wintermist Building Order) and a heritage conservation notice in respect of the Wintermist Property (Wintermist Conservation Notice). Both notices in respect of the Wintermist Property required the erection of a temporary support structure for the façade. Sanur also sought review of the City’s decision to issue both conservation notices.

Issues

There were two issues in dispute. The first issue was whether both building orders could be lawfully made under section 112(2)(g) of the Building Act. The second issue was whether under clause 13(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) Sch 2 (Deemed Provisions) the Property and Wintermist Property were a ‘heritage place’ that were not being ‘properly maintained’.

Held

In respect of the first issue, the Tribunal considered whether the Property and the Wintermist Property were ‘not fit for [human] occupation’ as per s 112(2)(g) of the Building Act. The Tribunal held that expert evidence stating that the façades may collapse at least in part, due to high winds and earth tremors, was sufficient to establish that the properties were not fit for human occupation and in a dangerous state.

There were two limbs to the second issue: (1) whether the properties were a ‘heritage place’; and (2) whether they were not ‘properly maintained’. In respect of the first limb, Sanur argued both heritage conservation notices were not lawfully issued because the properties were not a ‘heritage place’ as defined in cl 13(1) of the Deemed Provisions. That is because the properties were not ‘on the heritage list or located in a heritage area’. The City argued the properties were both a ‘heritage place’ because of a Council resolution which declared the ‘Rokeby Road and Hay Street Heritage Area’ as a ‘conservation area’ under the town planning scheme. The Tribunal accepted the City’s argument held that because both properties were within a heritage area under the town planning scheme they were therefore both a ‘heritage place’.

In respect of the second limb, the City argued Sanur had not ‘properly maintained’ the properties by not acting on the building notice, which resulted in some deterioration on the roof and prompted Sanur to apply for the demolition of both properties. Sanur submitted that the requirement for the properties to be ‘properly maintained’ was intended to prevent ‘demolition by neglect’ which is a longer term failure to maintain the properties. Both parties’ heritage experts agreed that the properties had been well maintained. As a result, the Tribunal found that the properties had been ‘properly maintained’ within the meaning of clause 13 of the Deemed Provisions. Because the second limb could not be made out, the Tribunal held that the heritage conservation notices for both properties were not lawfully issued.

As a result, the Tribunal affirmed both building orders, but set aside both heritage conservation notices. 

Screenshot of the first page of the case summary article.

Lea Hiltenkamp and Emiko Watanabe of Glen McLeod Legal have recently published an article with a summary of the case Asphaltech Pty Ltd v Shire of Capel [2021] WASAT 25 in the Australian Environment Review (2021, Volume 36, Number 2).

The case was in relation to a development application for a proposed asphalt production plant, which was to be co-located within an existing extractive industry area. The development application was refused by the Shire of Capel due to the potential for adverse amenity impacts on nearby surrounding land uses following a narrow reading by the State Administrative Tribunal of the applicable strategic framework. The strategic framework was intended to protect the extraction of strategic resources in the area; however, this protection did not extend to the manufacturing of products from the extracted materials, especially where there was a significant reduction in amenity of the surrounding locality.

The full article is available to view via Lexis Advance with a print version to follow.

Screenshot of the first page of the case summary article.