PLANNING CONDITION TO BE LODGED ON CERTIFICATE OF TITLE TO WARN BUYERS OF POTENTIAL ODOURS AND TRANSPORT NOISE

‘Buyer beware’ is perhaps one of the better known legal maxims. Even its Latin translation ‘caveat emptor’ is recognisable by many people. Hold that thought.

Land use conflict is becoming a more common phenomenon, particularly in these days of increasing urbanisation, on what was once the periphery of metropolitan areas, and infilling of former industrial areas with residential development.

This urban development and town planning phenomenon finds legal expression at the intersection of town planning and environmental law. This is a complex legal and policy area which has been of interest to this firm for many years, particularly because it affects both industrial and urban development clients.

A recent decision of the Supreme Court of Western Australia is of significance to the growing body of law and policy in this area. It overturned a decision of the State Administrative Tribunal (SAT), which held that memorials on title could not be applied to warn of a land use conflict between a small goods manufacturer and a major apartment development. A memorial on title can serve to warn prospective purchasers, engaged in a due diligence exercise, of a potential land use conflict.

The Supreme Court has overturned the SAT decision, with the effect that the SAT must re-decide the case. To read a brief summary and overview of the Supreme Court decision, please click here.

In 2017, the Metropolitan Central Joint Development Assessment Panel (Appellant) granted development approval for the construction of 258 apartment dwellings, subject to a number of conditions. One condition required a notification made pursuant to s 70A of the Transfer of Land Act 1893 (WA) (TLA) to be lodged on the relevant certificates of title to alert prospective buyers that residences may be affected by transport noise and odours (Condition).

The developer of the residences, 43 McGregor Road Pty Ltd (Respondent) applied to the State Administrative Tribunal (Tribunal) for review of the Appellant’s decision to impose the Condition.

The Tribunal determined that the Condition is invalid. The Tribunal’s decision was challenged by the Appellant, in the Supreme Court of Western Australia (Court), on four grounds.

The first ground of appeal was that the Tribunal erred in law in holding that the Appellant was not a public authority within the meaning of s 70A of the TLA. Whether or not the Appellant was a public authority was central to whether it had the power to cause a notification to be lodged on the relevant certificates of title under s 70A of the TLA.

The Court held that while the Appellant performed a public function in determining prescribed development applications, it could not properly be characterised as a public authority. This is because the Appellant did not have the functions or powers that a public authority must necessarily have in order to exercise the specific powers and functions under s 70A of the TLA in that it did not have the power to:

(a)   lodge a notification on a certificate of title;

(b)   pay the prescribed fee;

(c)   liaise with the current proprietor about whether it is desirable to lodge a notification and procure consent;

(d)   receive future requests from the registered proprietor for removal or modification of the notification; and

(e)   perform any functional role involving ongoing management or responsibility for land use which may include secondary powers to its primary function.

The absence of these powers meant the Appellant was not a public authority and accordingly the first ground of appeal failed. The Court went on to make some useful observations about development assessment panels (DAP) more generally, noting:

(a)   the key function of a DAP is to determine significant applications for development approval;

(b)   a DAP is not a separate legal entity with the capacity to act in its own name;

(c)   a DAP does not have a legal personality separate to that of its members, and does not have the capacity to take action or respond to matters in its own name;

(d)   administratively, a DAP functions by certain individuals or organisations carrying out tasks or responsibilities on behalf of the DAP; and

(e)   DAPs are purely decision-making panels; they are not empowered to monitor compliance with any conditions upon which development approval was granted.

The second ground of appeal was that the Tribunal had erred in law in failing to hold that the Appellant had power to impose the Condition.

The Court held that a planning authority has the power to impose, as a condition of a development approval, a condition that the proprietor of the land consent to a notification on the title pursuant to s 70A, if the condition is for a planning purpose and reasonably relates to the development approved.

In making this finding, the Court distinguished between the Appellant’s power to make the lodging of a notification a condition of a development approval and its inability to direct a proprietor or developer to lodge a notification.

The third ground of appeal related to whether the Condition was for a proper planning purpose. The Tribunal had found that the Condition was not for a proper planning purpose as it did no more than alert potential purchasers of a potential negative amenity impact.

The Court held that the Tribunal had erred by applying too narrow a definition to the concept of ‘proper planning purpose’. The Condition could serve a proper planning purpose by making prospective residents aware of potential impacts on amenity that may not be obvious from a physical inspection of the land itself.

This, the Court said, was consistent with the purpose of creating an efficient and effective land use planning system provided for in s 3(1)(b) of the Planning and Development Act 2005 (WA) (PDA).

The fourth ground of appeal argued that the Tribunal erred in failing to have regard to the relevant planning considerations, contrary to s 241(1)(a) of the PDA, which provides that the SAT is to have due regard to planning considerations including any State planning policy which may affect the subject matter of the development application.

The Court did not address this ground substantively, but held that the ground was made out. This was because the reasons of the Tribunal did not make reference to the Draft State Planning Policy 4.1 and State Planning Policy 5.4, which refer to prospective purchasers being made aware of amenity impacts on land to be subdivided or developed by means of notification on title. The Court found that the Tribunal should have had regard to those policies in determining whether the Condition was for a proper planning purpose.

As three of the four grounds of appeal were made out the Court set the decision of the Tribunal aside and determined that the matter should be sent back to the Tribunal for reconsideration without the hearing of further evidence.[1]

The Court’s decision can be accessed here.

[1] At the date of writing, the SAT has not reheard the matter.

Declaration: Glen McLeod Legal acts for the industrial operator in this matter, D’Orsogna Ltd.

Northern Territory climate change case

In November 2017, the Northern Territory EnvironmentalProtection Authority (EPA) recommended to the Pastoral Lands Board (PLB) to grant the largest single permit for land clearing in the Northern Territory. The clearing permit was sought in order to clear 20,431 ha of land at the Maryfield cattle station, south of Darwin for pasture improvement for the grazing of stock (Project).

The Project is proposed to be staged over a five year period with aerial sowing of pasture mix followed by felling of vegetation using bulldozers and chains. Felled vegetation is proposed to be progressively burned and levelled.

In recommending the grant of the permit, the EPA decided that the Project did not require an environmental impact assessment (EIA). The EPA’s decision to not require an EIA has been criticised on the basis that it did not take into account the Project’s “considerable contribution to the NT’s annual greenhouse gas emissions as a result of the vegetation clearing.

The EPA explained that no consideration was given to greenhouse gas emissions because there is no government policy to guide decision making. Further, the Project’s contribution to greenhouse gas emissions in the national context, would not constitute a ‘significant impact’ on the environment, and thereby require an EIA.

The EPA’s recommendation and the PLB’s decision to grant the permit was challenged in the NT Supreme Court by the Environment Centre Northern Territory on a number of grounds, including:

(a)  the Project’s likely emissions would amount to 18.5 per cent of the Northern Territory’s total annual emissions for 2015, and even if the Project would not cause a significant impact on global temperature rise, that did not mean that the emissions were acceptable and did not require assessment;

(b) the absence of a government policy on greenhouse gas emissions does not mean that emissions resulting from the Project can be ignored;

(c) in the past the EPA has required an EIA for applications that proposed clearing smaller areas of land than the Project’s proposal; and

(d) the EPA recommended to the PLB, which is the final decision maker, that the clearing be approved subject to a number of conditions. Subsequently, the PLB approved the clearing, but ignored a number of those conditions.

This Supreme Court challenge is considered to be the first case in the Northern Territory to challenge the approval of land clearing action on the basis of climate change. The challenge has also drawn attention to the limitations in the current legal and policy frameworks for land clearing and climate change in the NT.

This case raises significant questions and the Court’s decision is awaited with interest. When should a proposal to clear native vegetation trigger an environmental impact assessment? To what extent are the greenhouse implications of the clearing factors in assessing a clearing proposal? The Court’s decision has yet to be published.

Fixed fee billing

There has been much talk in the legal fraternity and beyond about fixed price services. Our experience is that its benefits to the clients include:

  • the outcomes to be achieved for the client are of primary concern;
  • greater certainty for the client;
  • the services are scoped and specified; and
  • fixed prices are assigned to the services and when that is not possible for the longer term tasks, estimates are provided.

A 2017 report by the Association of Corporate Counsel indicated that one of the most pertinent considerations for a client when engaging a firm are flexible billing methods.

The focus must be on value for the client. The old six-minute increments approach to billing which looks back to what has been done and then costed, is replaced by a forward looking outcomes focused approach. The new approach presupposes the provision of a scope which outlines the work that is required and the fixed fees that will be charged.

Glen McLeod Legal has used fixed fee billing since the founding of the firm, almost 7 years ago, as part of its value-based pricing approach. Our experience has shown that value-based pricing has been a positively received by our clients.

If you have a town planning or environmental legal issue, the team at Glen McLeod Legal can assist with, then please do not hesitate to contact us by telephone on (08) 6460 5179 or by email at glen@glenmcleodlegal.com.

Picture of Jess Hamdorf, Glen McLeod and Chelsea White

Glen McLeod Legal was delighted to be a supporting sponsor of The Law Society of Western Australia’s End of Year Celebration on Wednesday 5 December 2018 at the Westin Hotel. It was a great evening of collegiality and an opportunity to speak with others in the profession about the year in review.

It was also a pleasure to hear from Hayley Cormann, President of the Society, about the Society’s achievements in 2018.

Overflowing bin

Waste management and recycling has become an increasingly important topic of discussion in Australia. Western Australia is part of that conversation. Public awareness has been increased because of factors such as the import restrictions imposed by China in April 2018 under its Blue Sky/National Sword program, which prevents 99% of the Australian recyclables previously sold to China from being exported there.[1] The scale of waste management is likely to increase. WA’s population is expected to increase to 3.2 million people by 2026[2], with most of the growth anticipated to take place in metropolitan Perth. Consequently, WA’s waste infrastructure capacity must grow to meet the increased waste supply.

Further, WA must develop its waste infrastructure if it is to achieve the waste diversion targets set out in the Western Australian Waste Strategy: Creating the Right Environment.[3] Despite the need for new waste management facilities, it can be a lengthy process to obtain all of the necessary approvals. This challenge has been identified in various reports[4] and is an issue faced by a number of our clients.

While it is difficult to generalise about the approvals, licences and assessments required to operate a particular waste facility, it is likely to be some combination of the following:

  • development approval from a local government or from a Joint Development Assessment Panel;
  • environmental impact assessment by the Environmental Protection Authority under Part IV of the Environmental Protection Act 1986 (WA);
  • assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth);
  • an application for a works approval and licence for prescribed premises under Part V of the Environmental Protection Act 1986 (WA); and
  • assessment under the Public Health Act 2016 (WA).

Obtaining the requisite combination of approvals and licences and undergoing the necessary assessments can significantly delay and add to the establishment costs of waste management and recycling projects. Numerous recommendations have been made to improve the assessment and approval process for waste management and recycling facilities.[5]

The most significant regulatory challenges for our clients in the waste sector have been obtaining planning approvals. ‘Waste’ is not a word that conjures a positive response and surprisingly, at the local level, neither is ‘recycling’. How these problems are resolved is not purely legal, but the approvals process plays an important part. While the best approach is negotiation, litigation is often open as a last resort option.

[1] Jenni Downes, China’s recycling ‘ban’ throws Australia into a very messy waste crisis (27 April 2018) The Conversation <https://theconversation.com/chinas-recycling-ban-throws-australia-into-a-very-messy-waste-crisis-95522>

[2] Department of Planning, Lands and Heritage ‘WA Tomorrow (2015): Population Report No. 10’ (August 2015) <https://www.planning.wa.gov.au/publications/6194.aspx>

[3] See Waste Authority, Western Australian Waste Strategy: Creating the Right Environment (March 2012) p 24; Waste Authority, Draft Waste Strategy 2030 (2018) p 8; Office of the Auditor General Western Australia, Western Australian Waste Strategy: Rethinking Waste (Report No 23, October 2016) pp 5, 7-8.

[4] Government of Western Australia, ‘State Planning Strategy 2050’, Page 80; Waste Authority ‘Strategic waste infrastructure planning project: investigation report’ (June 2014), page ii, ix, 51 -52; Western Australian Local Government Authority, ‘Background Paper on Local Government Waste Management Infrastructure’ (April 2011) page 12-14.

[5] Western Australian Auditor General’s Report ‘Western Australian Waste Strategy: Rethinking Waste (October 2016); Western Australian Local Government Authority, ‘Background Paper on Local Government Waste Management Infrastructure’ (April 2011); Waste Authority ‘Strategic waste infrastructure planning project: investigation report’ (June 2014).

Bushfire

The two recent State Administrative Tribunal (SAT) decisions in Bennett v Western Australian Planning Commission [2018] WASAT 32 (Bennett) and Boynton v Western Australian Planning Commission [2018] WASAT 60 (Boynton) have considered the application of the Bushfire State Planning Policy (SPP 3.7) to subdivision proposals. In both cases the proposed subdivision sites were located within a designated bushfire prone area, as defined in SPP3.7.

The subdivision proposals were refused by the SAT because:

  • the proposed subdivisions were contrary to SPP 3.7;
  • there was inadequate vehicular access serving the subdivision in the event of a bushfire; and
  • a departure from SPP 3.7 would set an undesirable precedent for the subdivision of similarly constrained lots.

SPP3.7

The objective of SPP 3.7 is to “[a]void any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.”  The SAT considered both subdivision applications and found that neither met this objective.

In Bennett, the SAT’s consideration of this objective centred around the applicant’s plan for a building, which would allow occupants to shelter safely in the house, rather than leave the property, when there is a likelihood that the access route will be impacted by bushfire. The SAT held that the proposed building would not avoid any increase in the threat of bushfire to people or to ensure the preservation of life. Therefore, the applicant’s proposal was contrary to SPP3.7.

In Boynton the SAT held that the applicant’s had failed to submit the information required by SPP3.7, which would have allowed the SAT to determine what the bushfire threat was, for each lot that would be created by the subdivision. In absence of this information the bushfire threat could not be determined, and the SAT deemed it inappropriate to grant subdivision approval.

Site Access

In both Bennett and Boynton the SAT assessed whether there was vehicular access to the proposed subdivision that is available and safe to use during a bushfire event.

In Bennett the SAT assessed the site access with reference to Element 3 of the Guidelines for Planning in Bushfire Prone Areas. The SAT held that there was insufficient access to the proposed subdivision during a bushfire due to:

  • a constrained number of access contingencies, as the surrounding grassland would complicate fire containment and reduce the likely success of evacuation;
  • the possibility of reduced visibility due to thick grassland smoke;
  • the reduced likelihood of falling trees and objects, as they are set well back from the surfaced area of the road; and
  • the potential for congestion on the access road as residents evacuate, fire services arrive and some residents returning to save aspects of their property.

Given these considerations, the SAT found that the Proposal did not meet Element 3 of the Guidelines and, as there were no cogent and legitimate reasons to depart from Element 3 of the Guidelines, the decision to refuse the subdivision application was affirmed.

Similarly, in Boynton the SAT was not able to find that the proposed subdivided lots had sufficient site access during a bushfire event. This was due to the lots not fronting onto a dedicated public road. Rather, the sole access to the lots would have been by a long cul-de-sac, which despite its historic use, was not considered to be a road which the Crown was required to keep open.

Undesirable precedent

The SAT held that in both instances, the inconsistencies between the subdivision proposals and the requirements of SPP 3.7 and other bushfire planning documents, would result in an undesirable precedent should an approval be granted.

Conclusion

In view of these and other SAT decisions it is clear that there must be exceptional, cogent reasons for a planning authority to depart from the requirements of SPP3.7. This gives rise to the question: is SPP 3.7 being applied too slavishly given the established principle that policies are to be applied flexibly having regard to the merits of the particular case?[1]

[1] Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 [24].

Two dogs sitting in an office

The team at Glen McLeod Legal is recognising Mental Health Week in 2018 by bringing our four legged friends to the office. Brett (left) and Gary (right) have been positive influences and mood boosters in the office. This is consistent with scientific studies.

Field with tractor marks

Glen McLeod Legal represented two landowners charged with the offence of causing the clearing of native vegetation, without a clearing permit. This is an offence under section 51C of the Environmental Protection Act 1986 (WA) (EP Act).

The landowners owned a farm covering a total area of 2,033ha in the Wheatbelt region of Western Australia. Approximately 23% (~468ha) of the landowner’s farm area was covered in native vegetation. The landowners cleared approximately 8% (~39ha) of this native vegetation, in order to:

(a)         manage existing and prevent future weed infestation; and

(b)        reduce the risks of bushfire hazard.

The clearing was carried out as part of a considered plan which had been developed in consultation with an agronomist. It also took into account that the native vegetation was of marginal quality, given the weed infestation and that it was subject to historic grazing.

However, the clearing was done in the absence of a clearing permit or an applicable exemption under the Environmental Protection (Clearing of Native Vegetation) Regulations 2004.  As a result, proceedings were brought against the landowners by the Department of Water and Environmental Regulation in the criminal division of the Magistrates Court.

An early guilty plea was taken into consideration by the Magistrate when considering the penalty to be imposed.  The early plea showed that the landowners expressed genuine remorse and regret for not having sought clearing permission.

Under the provisions of the EP Act, the maximum penalty for the offence is $500,000. This penalty is reserved for the worst type of cases. The upper end of penalties usually imposed by the Magistrates Court for clearing offences ranges from $40,000 to $56,000.

The Magistrate accepted the submission in mitigation that the clearing was not wanton and that it had been carried out pursuant to considered plan that may have provided a proper basis for a clearing permit application. The Magistrate also accepted that the landowners committed to revegetating significant areas of land on the farm in addition to requirements under a Vegetation Conservation Notice.

The Magistrate found that the landowners actions prevented a full vegetation assessment from being undertaken, which may have revealed that threatened, rare or sensitive species could have been affected, and that the clearing regime under the EP Act was established for the very reason of protecting against this from occurring. In considering the various mitigating factors against the circumstances of the offending, the Magistrate imposed a fine of $25,000 on the landowners.

This fine shows the importance of applying for a clearing permit before the clearing of native vegetation is undertaken. Glen McLeod Legal advises clients on whether clearing exemptions may be applicable for proposed clearing or whether a clearing permit application should be made.  This case also shows the importance of seeking legal advice when confronted with a prosecution for a clearing offence so that you are properly informed when entering a plea and raising mitigating factors.

Please contact Glen McLeod Legal by telephone on (08) 6460 5179 or by email at admin@glenmcleodlegal.com should you require advice or representation for a matter involving a clearing permit application or prosecution.

Glen-McLeod-NELA-Conference

Glen McLeod Legal were pleased to be involved in the National Environmental Law Association (NELA) National Conference hosted in Perth on Friday 14 September on the topic ‘Innovation in Environmental Law’.

The Conference brought together a range of speakers from the legal profession, academia, the private sector and government to examine Australia’s response to global innovative trends, how emerging technology is being applied in practice and the role of the legal system in facilitating or restricting innovation.

The presentations were diverse and interesting, ranging from topics such as ‘waste-to-energy’ power projects, innovations to save Australia’s wildlife and the emerging role of lithium.

Glen McLeod presented on Greenhouse Gas Emission Regulation in Western Australia. This presentation focused first on the  Environmental Protection Authority’s Environmental Factor Guideline – Air Quality, which contains the EPA’s policy on greenhouse gas emissions.

The presentation then considered how the environmental assessment and licensing regimes operate under Parts IV and V of the Environmental Protection Act 1986 (WA) (EP Act). This analysis indicated the potential for regulatory control of greenhouse gas emissions under both Parts IV and V of the EP Act.

Discussion then turned to modern approaches to the regulation of greenhouse gas emissions and considered different legislative approaches taken under the new Victorian Environment Protection Amendment Act 2018 (Vic) and the International Bar Association’s Climate Change Model Statute.

Glen concluded with the proposition that Part IV and V of the EP Act provide the regulatory tools for Western Australia to regulate greenhouse gas emissions.