Thank you all for your continued support in 2020. We wish you a wonderful festive season.

 

Glen McLeod Legal welcomes its two newest team members, Emiko Watanabe and Janine Upson.

Emiko has a keen interest in planning, environmental and public law. She undertakes legal research in issues relating to development approvals, regulatory compliance and environmental approvals. Emiko assists with drafting advice and submissions in relation to development approvals or refusals, JDAP deputations, land use conflict and planning scheme amendments. She also assists in matters in the State Administrative Tribunal, including mediations.

Prior to studying law, Emiko graduated with a Bachelor of Arts in Sustainable Development and a Bachelor of Science in Energy Studies and has experience in sustainable urban development including green buildings, sustainable materials and energy efficiency.

Outside of work, Emiko enjoys photography, visiting contemporary art galleries and playing indoor beach volleyball.

Contact Emiko at emiko@glenmcleodlegal.com

Janine has over 13 years of legal administration experience having worked at top tier law firms as an executive assistant as well as small boutique firms as an office manager. Janine deals with all aspects of administration for Glen McLeod Legal, working closely with the lawyers for all their administrative needs.

Outside of work, Janine enjoys partaking in community musical theatre and spending time with her family.

Contact Janine at janine@glenmcleodlegal.com

This case was a matter on appeal from the Magistrates Court of Western Australia, deciding the issue of whether the clearing of vegetation was a development that required approval from the City of Kalamunda for the purposes of the Planning and Development Act 2005 (PD Act).

Background

In late 2015, ACN 605 729 995 Pty Ltd (Company) purchased a lot in Wattle Grove (Property) adjacent to Hartfield Park, a Crown reserve. Mr and Mrs Savage are directors of the Company. Under s 33(1) of the Bush Fires Act 1954 (WA) (Bush Fires Act), a local government may give notice to an owner or occupier to create firebreaks to prevent a bush fire. For the 2015/16 period, the City of Kalamunda (City) issued a Firebreak and Fuel Load Notice (Notice), which required the owners to construct a three metre fire break around the Property and remove all living or dead trees from the area. The Notice required the Company to create firebreaks on or before 1 November 2015, or within 14 days of becoming an owner or occupier of land (if this was after 1 November 2015). The fire breaks were required to be maintained up to and including 31 March 2016.

In December 2015, after the signing of the contract of sale for the Property but before settlement, a severe bush fire burnt over two days in Hartfield Park and also burnt the rear of the Property including parts of the fence line. Firefighters knocked down trees on the Property in an effort to control the blaze.

Settlement occurred on 20 January 2016. Following the bush fire, and prior to 28 January 2016, Mr Savage took to creating firebreaks within the period set out in the Notice. Mr Savage placed the already fallen trees in piles and instructed workers to cause about 20 non-native trees to be cleared. City officers inspected the Property on 28 January 2016 and 12 February 2016.

The City charged the Company and Mr and Mrs Savage on two accounts under s 218 of the PD Act for carrying out clearing on the Property without obtaining prior development approval from the City as required under the City’s Local Planning Scheme No. 3. The first charge was for the clearing that was carried out after the bush fire. The second charge was for the clearing of specifically identified trees following a separate directions notice issued by the City on 14 February 2016 after the City’s officers attended the Property. The second charge was not a relevant matter on appeal.

The Magistrate dismissed the charges, concluding that the removal of the trees was not a ‘development’ for the purposes of the PD Act. Mr and Mrs Savage contended that there was no legal requirement to seek development approval, as clearing the trees was required under the Bush Fires Act. Therefore, s 31(1)(b) of the Criminal Code applied as a defence. Under that section, a person is not criminally liable for an act which is done ‘in obedience to the order of a competent authority to which the person is bound to obey’. The City appealed this decision to the Supreme Court of Western Australia.

Grounds of appeal

The four grounds of appeal were that the Magistrate had erred:

  1. in law in concluding that the removal of the trees was not ‘development’;
  2. in law in concluding that the burden lay with the prosecution to prove the health and condition of the cleared trees prior to the date of their removal;
  3. in fact or law or both in finding that all of the second accused’s actions were aspects of maintenance; and
  4. in fact in finding that the evidence of the third accused was entirely consistent with his emails to the City.
Decision

On the first ground, the Court held that there was no issue that clearing of established trees leading to significant permanent alteration of the land is an activity that may be ‘development’. The Court considered the key issue of whether the clearing in this instance constituted ‘development’ and did not agree with the City’s contention that because ‘development’ includes clearing of established trees over land, the charge was proved. The Court applied the principle from Claude Neon Ltd v City of Perth [1983] WAR 147 and considered ‘whether an activity was of such a degree as to constitute development’.[1] The Court accepted that clearing in compliance with the Notice led to a permanent alteration of the land. However, when regard was had to the circumstances, the clearing did not constitute ‘development’. Justice Curthoys did not see why Mr and Mrs Savage would be required to seek approval from the City to comply with the Notice and bring the Property into the standard required by the City, when a failure to comply may result in prosecution.

In addition, Justice Curthoys clarified that the intention of a property owner to carry out development does not need to be established when considering the finding of an activity as ‘development’. The trial judge considered the existence of this intention as ‘developmental ideation’. For example, the trial judge considered that if there had been a plan to make a car park which required the removal of trees then the removal of trees for the car park would be development. Justice Curthoys did not accept that ‘developmental ideation’ needed to be established. His Honour held that there is nothing in the PD Act that suggests that a person’s intention is a relevant matter to determine what constitutes ‘development’. The relevant test is an objective test ‘having regard to what has happened to the land’.[2]

On the second ground, the Court outlined there were two requirements under the Notice – the first relating to creating firebreaks on the boundary and the second relating to creating other firebreaks and removal of specified flammable material on the Property. The City had no issue that the Notice provided lawful authority to create firebreaks on the boundary and therefore raised a defence by the Company and Mr and Mrs Savage under s 31(1)(b) of the Criminal Code. As a result, the burden of proof was on the City to prove that the trees cleared outside the boundary did not fall within the obligations under the Notice for creating other firebreaks and removing flammable material.

During the bush fire, the firefighters had pushed over a number of big trees for the purpose of firefighting. If there had been any permanent alteration as a result, this activity was undertaken by the firefighters and not Mr and Mrs Savage. In this instance, the Court found that Mr Savage undertaking the activity of placing the already pushed over trees into piles did not constitute ‘development’ as it was not Mr and Mrs Savage who had initially cleared the trees. His Honour found that it was not possible to conclude whether the degree of clearing by Mr and Mrs Savage constituted ‘development’ as the City did not prove which trees were cleared by Mr and Mrs Savage in compliance with the Notice and which trees were cleared by the firefighters.

On the third ground, the City relied on evidence related to the clearing carried out after 14 February 2016 (Mr and Mrs Savage’s second charge) and submitted that Mr Savage’s actions constituted development rather than maintenance of the Property. Justice Curthoys considered that Mr and Mrs Savage had been acquitted of the second charge and any evidence in relation to the second charge was irrelevant in this appeal. The question in issue was whether the clearing carried out after the bush fire (Mr and Mrs Savage’s first charge) was lawful, not the distinction between maintenance and development. His Honour held that the onus was on the City to establish that the clearing was undertaken without lawful authority.

On the fourth ground, the issue was regarding evidence. The City submitted that Mr Savage’s evidence at trial regarding the number of trees cleared was inconsistent with an email he wrote to the City and this cast doubt over Mr Savage’s credibility, accuracy and reasonableness. His Honour noted that for an appellate court to challenge the findings of fact in a trial, it must be shown that the trial judge failed to use or had acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence or was glaringly improbable. His Honour held that nothing contained in Mr Savage’s email was inconsistent with the facts or glaringly improbable.

The Court held that the City failed on all four grounds and the appeal was dismissed.

Conclusion

Development in planning law is now a well-understood concept, which is legally constituted by either changing a use or carrying out physical alternations to land. In assessing whether or not a particular action or activity constitutes development, the Court will take into account matters of fact and degree.

In this case, while the Court accepted that the clearing of trees to create firebreaks led to the physical alternation of the land, when considering the circumstances, the Court concluded that clearing undertaken to comply with the Notice did not constitute ‘development’. Two matters were considered that led to this conclusion.

First, a relevant matter of fact considered by the Court was that the Notice issued by the City created a statutory obligation for the Company and Mr and Mrs Savage to bring the Property up to the standard required by the City for the purpose of creating firebreaks. Therefore, a notice by a local government authority that creates a statutory obligation to be complied with is a relevant fact to be considered in the assessment of whether an activity constitutes development that requires approval by that same local government authority.

Second, a relevant matter of degree considered by the Court was that the City had not proved whether the clearing of the trees in question had been undertaken by Mr and Mrs Savage or the firefighters. In order to assess the degree of clearing that constitutes development, a person must be found to have carried out the activity resulting in physical alteration of land. Where this cannot be found, it is unlikely that such an activity would be of a degree that would constitute development. In particular, where clearing had already occurred, the moving of trees that had been cleared by another person would not constitute development.


[1] [57].

[2] [64].

Team photo of the team Policy Makers with Chelsea White, Daniel Morey and Emiko Watanabe of Glen McLeod Legal with teammates from Torrens Legal, Solomon Brothers and the Law Society of WA

The Law Society of Western Australia’s Young Lawyers Committee hosted the annual mixed netball competition on Friday, 20 November 2020. The event saw 12 teams in friendly competition for the top spot and prize. Chelsea White, Daniel Morey and Emiko Watanabe of Glen McLeod Legal joined the team Policy Makers, which included lawyers from Torrens Legal, Solomon Brothers and the Law Society of Western Australia. The team was proud to make it into the semi-final round and come equal third. The netball competition was a great way to spend a Friday evening!

Conservation covenants are voluntary agreements entered into between a landholder and an authorised body to conserve or enhance the natural, cultural or scientific values of land. They take the form of landowners undertaking to act or to refrain from acting in relation to the specified land.

Conservation covenants have taken many statutory forms, with various bodies authorised to be a party to the covenant. The most recent legislative code for such covenants is the proposed Part VB of the Environmental Protection Amendment Bill 2020 (EP Bill).

This article outlines some of the existing conservation covenant mechanisms, and will then discuss those introduced by the EP Bill, which at the time of writing had almost completed passage through Parliament.

Biodiversity Conservation Act 2016

The Biodiversity Conservation Act 2016 (WA) (BC Act) provides two methods of protecting environmental values of private land: a biodiversity conservation agreement and a biodiversity conservation covenant. The major difference between the two is that biodiversity conservation agreements may bind the State or landowners to provide financial and other assistance. On the other hand, biodiversity agreement covenants are used to prevent or require action in relation to land.

Biodiversity Conservation Agreements

While not technically a covenant and operating as a type of contract, the biodiversity conservation agreement is the cousin of the biodiversity conservation covenant. If the certificate of title of land contains an endorsement or notation of the biodiversity conservation agreement, then this is binding on successive owners or occupiers.[1]

The content of biodiversity conservation agreements is nominally unrestricted, provided the covenant is for the purpose of biodiversity conservation or promotion. Generally, this subsection allows the State to promise to assist landowners. This assistance can be financial, technical or managerial, and includes the direct provision of goods and services. In return, the landowner may agree to conditions, such as to restrict their use of the land, carry out or refrain from carrying out any actions, permit access, repay money, and return goods.

The BC Act does not require biodiversity conservation agreements to run for a specific amount of time. Once the agreement is no longer needed for the purpose for which it was entered into, or is no longer capable of achieving that purpose, the Minister may cancel the agreement.[2]

Biodiversity Conservation Covenants

An owner of land may enter into a covenant with the CEO of the Department of Parks and Wildlife to set aside some or all of their land for protection, conservation, management or scientific purposes.[3] This can include taking actions such as creating and implementing a land management plan, or allowing third parties to undertake conservation efforts on the land.

Biodiversity conservation covenants can have effect for a specified time or in perpetuity. A breach of the covenant carries a fine of $2,500 for an individual or $12,500 for a body corporate.[4]

Environmental Protection Amendment Bill 2020

The EP Bill proposes changes to the Environmental Protection Act 1986 (WA) including the introduction of Part VB – Environmental Protection Covenants.

When can an environmental protection covenant be entered into?

Under the EP Bill an environmental protection covenant can be entered into in a variety of circumstances. Most involve the covenant being a condition of approval of a plan, development, change in land use or clearing permit. Each owner or occupier of the land must give written consent to the covenant under proposed section 86I. If a covenant is entered into then it may be registrable on the tile of the land.[5]

Content of the covenant

The covenant must identify the land to which it applies and each owner and occupier of said land.[6] The environmental protection covenant may contain any provisions agreed on by the CEO of the Department of Water and Environmental Regulation and the owner of the land.[7] This may, in regard to the land, include restrictions of its use, the work that may be carried out on it, or requirements for certain work to be carried out.[8]

The covenant may have a specified period of effect or continue in perpetuity. It may be expressed as irrevocable or revocable.[9]

Contravening an environmental protection covenant will be an offence by the new section 86O(1) in the EP Bill. The penalty is up to $25,000 for an individual and $125,000 for a body corporate.


[1] Environmental Protection Amendment Bill 2020, s 86K.

[2] Environmental Protection Amendment Bill 2020, s 86J(1).

[3] Environmental Protection Amendment Bill 2020, s 86J(3).

[4] Environmental Protection Amendment Bill 2020, s 86J(4).

[5] Environmental Protection Amendment Bill 2020, s 86J(5).

[6] Biodiversity Conservation Act 2016, s 118.

[7] Biodiversity Conservation Act 2016, 116(4).

[8] Biodiversity Conservation Act 2016, ss 122(1­), 112(2).

[9] Biodiversity Conservation Regulations 2018, Schedule 9.

Truck crushing bricks

Waste not, want not: Valuing waste as a resource’ (Discussion Paper) was released in September by the Department of Water and Environmental Regulation (DWER). The paper addresses two key changes to the current legislative framework, by proposing amendments to the definition of ‘waste’ and introducing  ‘waste-derived materials determinations’ (WDM Determinations).

This Discussion Paper builds on an issues paper of the same name released in June 2019 and accounts for feedback received on that paper.

Notably, the Discussion Paper proposes an amendment to the Environmental Protection Act 1986 (EP Act) to empower the Chief Executive Officer of the DWER to grant WDM Determinations. A WDM Determination will specify circumstances in which a waste-derived material would cease to be waste and would therefore not attract the waste levy.

Two types of WDM Determinations are proposed:

  • general WDM Determinations for common waste-derived materials for which contaminant thresholds are known; and
  • WDM Determinations issued on a case-by-case basis for specific people or operators.

WDM Determinations would be subject to conditions. A right of review of these conditions is proposed. The right of review would be to the Appeals Convenor.

No right of review is proposed for a refusal to grant a WDM Determination or for third parties.

To allow for the above, the definition of waste in the EP Act, Waste Avoidance and Resource Recovery Act 2007 and Waste Avoidance and Resource Recovery Levy Act 2007 is also proposed to be amended to include materials that are wholly or partly comprised of waste, or wholly or partly derived, recovered or produced from waste, unless that material is used in accordance with a WDM determination.

The Western Australian Government is currently seeking submissions on the proposed framework. The submission period closes on 18 December 2020.

2020 has been an interesting year for both waste and environmental protection reform. Glen McLeod Legal is glad to be involved in these areas.

Recently, the National Environmental Law Association, Waste Management and Resource Recovery Association of Australia and the Piddington Society hosted seminars to consider environmental law reform and opportunities and challenges in recovering construction and demolition material (C&D).

On Wednesday, Chelsea White of this firm in her role as a member of the Waste Management and Resource Recovery Association of Australia, assisted in arranging a seminar on the opportunities for reusing C&D waste in Western Australia and its interplay with the waste levy.

The following day, Lea Hiltenkamp of this firm chaired the Piddington Society’s seminar on ‘Environmental Law – are we in an era of reform?’

Both seminars included passionate and insightful presentations for leaders in the field, who gave their candid views on the current state of environmental legislation and the progress made in reusing construction and demolition products.

impact-of-structure-plans-on-the-rights and obligations of landowners

The State Administrative Tribunal (Tribunal) has clarified the nature of structure plans in the Western Australian planning system in its recent decision in Rpoint Land Pty Ltd and Western Australian Planning Commission [2020] WASAT 92.

RPoint Land Pty Ltd (Applicant) had applied to the Western Australian Planning Commission (Commission) for approval of amendments to the Anketell North Local Structure Plan (Application). The Application incorporated land both owned and not owned by the Applicant. The Application was refused by the Commission. Anketell Property Investments Pty Ltd (Proposed Intervener) sought to intervene in the proceedings as it owned land covered by the Application and was also a party to other Tribunal proceedings relating to its own proposed amendment to the Anketell North Local Structure Plan. The main contention concerned whether the Proposed Intervener had grounds to intervene by virtue of being affected by the Application.

The Tribunal found that landowners are entitled to prepare structure plans for land they do not own, provided they own some land in the structure plan area.

In its findings, the Tribunal noted that ‘a structure plan is a strategic planning document for the purposes of guiding the future exercise of discretion.’ Structure plans do not determine the final rights of landowners and as such the question of landowner consent is less intrinsic than, for example, in applications for subdivision or development applications.

The Tribunal distinguished another case involving a third party appeal on the basis that the third party had its rights directly impacted by virtue of a development application rather than a structure plan. Development applications are quasi-legislative, do not have the force of law, and must only be given ‘due regard’. Therefore, while the Application might change the ‘spatial arrangement of land uses’, if it was approved, it would not conclusively affect the rights and obligations of other affected landowners. As such, there was no immediate necessity for the Proposed Intervener to intervene in the proceedings.

This judgement helps clarify the impact of structure plans on the rights and obligations of landowners and whether proposed amendments to structure plans may incorporate land not owned by the proponent.

Room full of people

The team at Glen McLeod Legal brushed up on their trivia for the UDIA Quiz Night last week. It was a pleasure to attend a UDIA social event for the first time since COVID restrictions eased and to mingle with others in the industry. While we did not quite manage first place it was a very enjoyable and fun night out at the Old Pickle Factory. Thank you to Alan Stewart, Len Kosova and Cameron Leckey whose knowledge of music and pop culture was invaluable!

Industrial-shipping-containers

For many years there has been controversy and uncertainty over whether there should be a port at Kwinana and the effect future port plans would have on current freight routes. In what many would hope is the final work on the matter, the independent Westport Taskforce, has produced what may be described as a ‘visionary plan’ for a future container port.

The Westport: Future port recommendations stage 2 report (Report) recommends two port options, both of which aim to increase freight capacity to meet long-term forecast demand. The two options involve the transition of trade from Fremantle to a new port in Kwinana. Option D2 recommends transitioning all freight to Kwinana over time, while Option B recommends moving all freight to Kwinana at once.

Why it is proposed to move the Port

In growth

2018-19, 770,000 twenty-foot equivalent units (the unit of measurement for containers) (TEU) were handled by the Fremantle port. By 2068, that number is expected to grow to 3.8 million TEUs.

The Report details six primary reasons for having a new port.

  1. Increasing road congestion

The areas surrounding the Fremantle port are experiencing growing density levels without increases to road capacity. Removing port traffic will increase social amenity.

  1. Bigger ships

As larger ships begin to service Perth a wider range of accommodation will be needed. This will range from minor upgrades to the deepening of the Inner Harbour channel.

  1. Asset optimisation

The infrastructure assets currently used at the Fremantle Harbour will reach their optimum asset life in the next 20 to 30 years.

  1. Land value

The ‘highest and best use’ of the land currently used for industrial purposes is forecast to change to residential and commercial.

  1. Social licence

The noise, vibration and emission from the existing port will become less compatible with residential areas.

  1. Environment

The regulatory and technological environment will at some point necessitate a rethinking of the port.

Option B

This recommendation is that a port be built in the Cockburn Sound. Option B would be constructed in 3 stages:

Stage 0: Meet short term freight growth with upgrades at Fremantle.

Stage 1: Construction of the Kwinana port. Stage 1 of the Kwinana port could be built to manage up to 1.52 million TEUs.

Stage 2: If ultra large container vessels begin to service Australian ports, the Cockburn Sound access channel can be deepened and widened as necessary.

Stage 3: The capacity of the Kwinana port can be increased to 4.5 million TEUs to meet the forecast growth in freight.

About two thirds of the capacity of the Kwinana port will be serviced by road, through a dedicated freight corridor along Anketell Road and Tonkin Highway. The existing South Western main line rail line with accommodate the other one third.

This option is forecast to cost $4.7 bn.

Option D2

Option D2 is similar to Option B, but instead provides for Fremantle and Kwinana to share the receipt of freight in the short term. The receipt of freight at Kwinana will then gradually increase.

Option D2 is the preferred option as it maximises the value of the Fremantle port, while still transitioning into the same long-term state as Option B.

This option is forecast to cost $4 bn.

Suggested benefits of Options B and D2

The capacity of the proposed Kwinana fort in Options B and D2 exceeds forecast demand and future-proofs the receival of shipping freight in Perth for the next 50 years.

The benefits of Options B and D2 are:

  • Kwinana is more a more flexible location, with less constraints imposed by the land use of the surrounds;
  • Traffic associated with the Kwinana port will be facilitated by Anketell Road and Tonkin Highway and thereby avoid suburban areas; and
  • Fremantle and the Inner Harbour will be open to redevelopment.

Conclusion

The Report is part of a major undertaking and will take some digesting. There are many points of conflict between advocates for the status quo and supporters of the new port. Running in parallel will be a range of issues that will require further investigation, including environmental, traffic, social and logistical issues. Many of the issues have been aired before and a number of potential plans have not survived the electoral cycles and other forces that hit endeavours of this level. It is hoped that this Report and its future implementation will bring the certainty that has been missing in the past.