Banksia Tree leaves

The team at Glen McLeod Legal was delighted to attend the Urban Development Institute of Australia (UDIA) Breakfast on Wednesday 5 September. The topic for this event was ‘Navigating the Environmental Approval Process’.

The breakfast provided an opportunity to hear from Dr Tom Hatton, Chairman of the Western Australian Environmental Protection Authority, and Darren Cooper, Chair of the Independent Review of the Strategic Assessment for the Perth and Peel Regions (SAPPR).

Darren Cooper’s presentation was as entertaining as it was insightful as he stepped the audience through the status of the SAPPR. He indicated that under the current timeline the SAPPR was expected to be finished in two years’ time. This, he explained, was in part due to the immense scale of the review, which dwarfs similar interstate reviews, namely, the Urban Growth Boundary Review in Victoria and the South West Growth Area Review in New South Wales.  He suggested that the SAPPR set an ambitious target, but that it should not be abandoned. Rather, he advocated for a more strategic approach.

Dr Tom Hatton’s presentation provided guidance on what the Environmental Protection Authority’s (EPA) approach would be until the SAPPR review is finalised. He indicated that the EPA intends to make the decision about whether to assess a proposal at an earlier stage. He also indicated that the EPA website would provide proponents model examples of proposals that would be most likely to pass the assessment process.

Dr Hatton indicated that the actions proponents could take until the SAPPR review is finalised include:

  1. developing already cleared land;
  2. avoiding proposals which break up a large areas of existing native vegetation; and
  3. siting developments in a manner which maintains vegetation corridors.

In a concluding question and answer session, the audience queried the stringent protection that is afforded to the Carnaby’s Cockatoo and how this can adversely impact the environmental approval process for development.

envrionement-and-planning-law-events

We are pleased to announce that a number of our lawyers will be partaking in upcoming environment and planning law events.

Law Society of Western Australia

The Rise of the Sleeping Giant – Community Consultation in the Land Development Industry

Tuesday, 11 September 2018 

Glen McLeod, Principal of Glen McLeod Legal, will be chairing a presentation which will focus on the emergence of the power associated with community interests as part of the development assessment process.  The legislative starting point is a system where there are no third party appeal rights in Western Australia. Despite lack of rights vested in the community, in respect of planning decisions, the emergence of communities’ influence has been seen in recent years with several successful judicial review applications in the Supreme Court.  Planning authorities, particularly joint development assessment panels, are now inundated with deputations from community representatives, particularly, large projects, sometimes controversial, where significant exercise of discretion is required in order for an approval to be obtained.

 This momentum is starting to gain traction with decision makers and also those that are charged with the responsibility of planning reform.  The premise of the paper and associated discussion will be as with Gulliver’s Travels, the need to deal with the rising giant, lest the possible destruction of meritorious planning proposals.

For more information please click here.


National Environmental Law Association National Conference 2018

Innovation in Environmental Law

Friday 14 September 2018

The National Environmental Law Association’s 2018 National Conference will be held at the Parmelia Hilton Hotel in Perth on Friday 14 September 2018. The conference will explore the topic of environmental innovation and the role to be played by the legal system in facilitating change. The conference will include presentations on where Australia sits in regard to global innovative trends, how emerging technology is being applied in practice and discussions on how the legislative framework supports or prohibits innovation.

Glen McLeod, Principal, will be presenting on Innovation and the Regulation of Greenhouse Gas Emissions in Western Australia as part of a session focusing on Challenges and Opportunities in environmental law.

Jess Hamdorf, Lawyer, will be chairing a session on Innovation in Practice with representatives from BHP Nickel West, InfraNomics, Martin Biopower and Power Ledger.

Connor Fisher, Lawyer, will be chairing a panel session titled Future Focus with representatives from various sectors interested in the future of environmental law.

For more information please click here.

Laptop on desk showing google

In the recently published judgment of Trkulja v Google LLC [2018] HCA 25 the High Court of Australia (HCA) held that Google may be liable for publishing potentially defamatory material.

Google had tried to obtain summary judgment on the basis that the case against it had no reasonable prospect of success. Google argued that their search engine did not publish the material and that the material was not defamatory of Mr Trkulja (Plaintiff). The trial judge rejected that application.

The trial judge’s decision was appealed to the Victorian Court of Appeal (VCA), which found in favour of Google. The VCA found it unnecessary to decide whether Google was the publisher of the material and found that the Plaintiff had no real prospect of successfully proving defamation.

On appeal by the Plaintiff, the HCA upheld the trial judge’s ruling in favour of the Plaintiff, in a strong judgement that was highly critical of the Court of Appeal’s approach and decision.

Paragraph 31 of the judgement, summarises the test for defamation. The published material associated the Plaintiff with criminal elements. The material came up on Google searches. The HCA concluded that at least some of the material published by Google had the capacity to be defamatory. The Plaintiff therefore had a reasonable prospect of success. The case may go back to the trial judge for the hearing to be conducted in full, unless of course Google decides, in view of the HCA’s ruling, that it should try to settle now, which would have to be an option.

The case clarifies the law relating to publication of defamatory material on the world wide web and should make it easier to stop defamatory material from being published through that medium. This may be particularly relevant to those who may have been seen as easy targets for web abuse. As well as suing perpetrators, they can sue Google, seek damages and endeavour to stop publication by an injunction.

planning-reform-symposium

Glen McLeod Legal was proud to co-organise with Murdoch University School of Law a symposium on the independent review of the WA planning system. The review, which was commissioned by the Minister for Planning, proposes reforms to make the WA planning system more efficient, open and understandable.

The lead independent reviewer, Evan Jones presented on five key reform areas identified in the Green Paper, being strategic leadership, legibility, transparency, efficiency and delivering smart growth. The following contains a brief summary of each proposed reform.

Strategically led: the key reform will be to put strategy at the centre of the WA planning system. This will involve amending the Planning and Development Act 2005 (WA) (PD Act) to define ‘strategic planning’ and ‘sustainable development’, as well as making strategic planning for sustainable development the purpose of planning in WA. The core concept of ‘sustainability’ is proposed to be defined in a State Planning Policy (SPP), with steps on how to balance economic, social and environmental factors for land use planning.

Legible: the reforms propose to:

(a)  consolidate all SPPs together into a single concise State Planning Framework spanning less than 200 pages;

(b) reorganise SPPs into common elements that are used directly for regional plans and local planning schemes (LPS);

(c) create a Comprehensive Local Planning Scheme for each local government, which contains all local planning strategies, legal provisions, maps and local planning policies. This will be published in a single, easy-to-navigate, standardised format; and

(d) create a set of standardised zones, land uses and land use permissibility to apply in Perth and major regional centres.

Transparent: the reforms propose to establish a Community Engagement Charter for more active community participation and to improve the Development Assessment Panel (DAP) system to increase transparency and community trust in the decision-making process. This includes making information about DAP meetings available online, providing reasons for all DAP decisions, appointing a state based pool of expert DAP members for complex matters and appointing a Chief Presiding Member to oversee the quality and consistency of DAP decisions.

Efficiency: the Green Paper recommends extending delegations from the Western Australian Planning Commission (WAPC) to the Department of Planning, Lands and Heritage (DPLH) and local government. The long term idea is that:

(a) the WAPC will only be responsible for matters of state and regional strategic planning significance;

(b) the DPLH will be responsible for the operation of the state planning system and provide leadership and guidance to local government; and

(c) local government will be responsible for local policies, development and small infill subdivision in accordance with a local structure plan.

Other goals for reform include fast-tracking certain development approvals, reducing the timeframe in which additional information can be sought and providing upfront agreements on the scope and content of Local Structure Plans (LSP).

Connected and Smart Growth: the planning system needs tofocus on planning and delivering key urban infill locations of activity centres, urban corridors and station precincts. This will require the development of a Connected Smart Growth SPP and clearly defining the different roles to be played by the State Government.

The symposium concluded with an engaging panel discussion between Evan Jones, Paul Kotsoglo (Managing Director, Planning Solutions), Len Kosova (CEO, City of Vincent) and Jane Bennett (Director, CLE Town Planning + Design).

There was also a diverse range of input from the audience consisting of architects, environmental consultants, local government representatives and legal professionals. Questions centred around the new dynamic between state and local government in delivering the proposed reforms, the delivery of the reforms as ‘Day 1’ changes or a gradual roll out, and whether the office of an Independent Planning Reviewer should be established.

We would like to thank the panel members and audience for making the symposium a successful event.  Special thanks also to Professor Jürgen Bröhmer, Dean of Murdoch Law School, for generously providing the facilities at Murdoch University.

The Green Paper is available for download on the website of the DPLH here.

Glen McLeod Legal is very pleased to welcome back an Associate Sam Lander, after an absence of a year, in which he gained further experience in complex projects and corporate transactions.

Sam says that he is pleased to be back with the firm, where he started work in 2014.  He is looking forward to helping clients achieve outcomes in the areas of land compensation, planning and environmental applications and appeals, clearing prosecutions and remediation of contaminated sites.

Sam is contactable at sam@glenmcleodlegal.com or on 08 6460 5179.

Government's-town-planning-reform-paper

An important Government consultation paper on reforming the State’s planning system was published today.

The paper is the product of the Independent Planning Review commissioned by the Minister for Planning, the Hon. Rita Safiotti MLA, and led by eminent planning expert Evan Jones.

We conducted and sponsored a seminar with Murdoch University in February of this year at which Mr Jones introduced the reform process and spoke to its principal themes, in particular the emphasis on strategic planning.

The five key proposals are for a planning system that is:

1. Strategically-led

2. Legible

3. Transparent

4. Efficient

5. Delivering smart growth

The Government’s summary of the proposals includes the following comment:

‘Why is reform needed? There is some concern that Western Australia’s planning system has become overly complex and focusses too much on individual applications for development. Also, most people only engage with the planning system to react to a development proposal in their neighbourhood, rather than contributing to the future form of their community. The planning system has many out-of-date and overlapping policies and guidelines. As a result, decision-makers often respond to individual development proposals, rather than setting a vision for an area to which the development industry can respond. Strategic planning encourages early involvement by the community to shape their future and assists landowners to clearly understand what is the vision for their area and what is permitted on their lots. Many of the proposals within the Green Paper give precedence to strategic planning. A strategically-led system establishes a line of sight through State and local government strategies to explain how they work together to inform decision-making. Shifting from statutory-led to strategically-led planning is long overdue.’

The full published paper on the reform proposals can be found here.

Submissions can be made here or by emailing planningreform@dplh.wa.gov.au. The closing date for submissions is Friday 20 July 2018.

petrol station fuel nozzles

Presiding member of the southern joint development assessment panel V dcsc pty ltd [2018] WASC 145

The recent approval of a development application for a ‘convenience store’ in Dunsborough illustrates the potential complexity of town planning law and policy.

On 10 May 2018, the Supreme Court of Western Australia (Supreme Court) dismissed a challenge against the development approval of a convenience store on Lot 108 Dunn Bay Road, Dunsborough (Land). The development included a Puma Energy Service Station as a component of the usual retail convenience store use.

The appeal was brought by the Presiding Member (JDAP Member) of the Southern Joint Development Assessment Panel (JDAP), which had initially refused the development application. DCSC Pty Ltd (Developer) had applied successfully to overturn the JDAP’s decision in the State Administrative Tribunal (SAT).

The application sought approval for a ‘convenience store’ under the City of Busselton Local Planning Scheme No 21 (Planning Scheme). The JDAP’s refusal was partly on the basis that the proposed use should be characterised as a ‘service station’ under the Planning Scheme and not a ‘convenience store’.

Under the Planning Scheme, ‘convenience store’ was a permitted use and ‘service station’ a discretionary use. Therefore, it was only if the proposal was a ‘service station’ that the JDAP had the power to refuse the  application.

The overarching question for the SAT was whether the proposal should be approved. A preliminary issue was whether, in planning terms, the proposed use should be characterised as  a ‘convenience store’ or a ‘service station.’ If it was a ‘convenience store’ an approval authority could only impose conditions on the approval.

On 25 August 2016, the SAT determined that the proposal was a ‘convenience store’ and was therefore a permitted use under the Planning Scheme (Preliminary SAT Decision).

On 4 August 2017 the definition of ‘service station’ under the Planning Scheme was amended. This amendment was made prior to the SAT’s final hearing at which it was determined whether the proposal should be approved.

The development would likely meet this new definition which would preclude the proposal being characterised as a convenience store. This would have given the SAT a discretion to refuse the proposal. Of course, it could also have decided to approve the application on its merits.

Nevertheless, on 23 August 2017, the SAT delivered its decision on the overarching question (Final SAT Decision) without considering the amended definition of ‘service station.’ On the basis that the proposal was a ‘convenience store’ as decided by the Preliminary SAT Decision, the SAT determined that the Developer’s application should be approved subject to conditions.

APPEAL TO THE SUPREME COURT

The JDAP appealed the Final SAT Decision to the Supreme Court. Appeals of this nature must be in respect of legal issues stemming from the SAT’s decision. The main appeal point was that the SAT had not considered the 4 August 2017 amendment.

The Supreme Court held that the JDAP Member’s failure to appeal the Preliminary SAT Decision meant it had binding effect on the parties and must be applied by the SAT when making the Final SAT Decision. The Supreme Court said:

the determination of the preliminary issue in this matter (that is, the proper classification of the use of the land in the proposed development was ‘service station’ as defined in [the Planning Scheme] prior to 4 August 2017) was and is binding upon the parties and the Tribunal in making the final decision and is not a matter open to be challenged in this appeal.

The Supreme Court also made important observations on the issue of accrued rights. The Preliminary SAT decision was, for the Developer, an accrued right.

The Supreme Court said that ‘[a]ccrued rights are rights that are to be determined under a law as it stood when the right accrued.’ It went on to say that the Developer:

had a right to have the legality of the remaining matters determined in accordance with the decision on the preliminary issue made under the previous law.

Therefore, a right accrued to the Developer to have the Final SAT Decision determined in accordance with the Preliminary SAT Decision that the appropriate classification was ‘convenience store.’

CONCLUSION

The Supreme Court’s dismissal of the appeal allowed the Developer to begin constructing the convenience store. It remains to be seen whether the JDAP Member will appeal to the Court of Appeal.

It is noted that generally a planning application is to be determined on the basis of the law and policy as it stands at the time of the determination, whether by an original decision-maker or on review. The decision in the present case is not contrary to that principle because the Preliminary SAT Decision became part of the body of law to be considered when the Final SAT Decision was made. Also, a legal determination by the SAT at a preliminary hearing may confer rights on the land owner which if not challenged after the preliminary decision, will bind the SAT when the final determination is made.

circular window

‘USING PRODUCTS IN A CLOSED LOOP SYSTEM’

WORKING SESSION AT THE INTERNATIONAL BAR ASSOCIATION SECTION ON ENERGY, ENVIRONMENT, NATURAL RESOURCES AND INFRASTRUCTURE LAW
LISBON, 9 APRIL 2018

At the International Bar Association’s (IBA) Biennial Conference of the Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL) held on 9 April 2018 Michelle Ouellette[1] and Glen McLeod[2], moderated a breakout session on the emerging new circular economy.

This session introduced the circular economy model, which is focused on using products in a closed loop system.  It explored incentives and initiatives, policies and regulatory regimes that enable more sustainable production practices and promote sustainable consumption. The panel members were from diverse backgrounds, including the private business sector, government, non-for-profit organisations and international organisations.

Carrie Snyder, Founder of CSS Consulting and instructor at Harvard Extension School, Virginia Beach, Virginia introduced the concept of the circular economy and described how a closed system operates. A closed system exists where a product design does not require new material inputs and the product can be re-used, recycled or composted at its end-of-life. The idea is to design waste out of the system, produce repairable products and sell services designed to keep products in repair.

Dr Kieren Mayers, Director of Environmental and Technical Compliance for Sony Interactive Entertainment, London considered how the concept of the circular economy has become more mainstream and highlighted the implementation of legislation concerning the lifecycle of electronic products in the European Union. Dr Mayers noted that producer responsibility for the ‘take back’ of products at the end-of-life stage has been implemented, though he emphasised that it is important to ensure the steps which are taken for end-of-life management are practical and deliver the intended results. This is particularly important in the development of harmonised product standards and regulations

Professor Christian Piska of the University of Vienna, Vienna commented that the broadly understood concept of waste runs counter to the goals of resource conservation and waste prevention. Professor Piska also noted the potential limits of the circular economy, drawing upon the example of used cars. Assets should be enhanced to last longer, the emphasis being on a service economy. However, it is not in the manufacturer’s interest to prolong the life of a vehicle. He considered that the prolonged use or reuse of an item is the most effective method for conserving resources. In relation to measures taken by the European Union, Professor Piska noted the possibility for overregulation and the potential for unforeseen results to occur. Smart regulation, which generally means as little as possible, is his preferred approach.

Harry Verhaar, Head of Global Public & Governance Affairs for Philips Lighting focused on what is required to progress towards a circular economy. Mr Verhaar highlighted the requirement for comprehensive legislative and regulatory regimes and raised questions about the potential limits posed by existing infrastructure. In general, the focus should be on prolonging the life of infrastructure. Recycling should not be an end in itself because of its use of energy. We need to rethink production, so that the need to recycle is avoided.  Mr Verhaar noted the experience of the lighting sector and the transition from inefficient analogue incandescent light-bulbs towards highly efficient digital LED lights, which last longer, use less energy and reduce the need for recycling. The discussion focussed on why this transition occurred and what the experience of lighting sector might mean for other sectors.

Mr José Eduardo Martins, Partner at Abreu Advogados, Lisbon considered how the European Union produces environmental legislation and the implications of this legislation for the circular economy concept. Mr Martins cited potential risks, namely, that legislation may simply be symbolic or ineffective in trying to address environmental concerns.

A perspective on the circular economy in North America was brought by Jonathon Cocker, Partner at Baker McKenzie, Toronto, Ontario. Mr Cocker observed that there is a migration away from government run waste diversion programs towards the private sector. He noted, for example, the establishment of producer responsibility organisations (PRO), which monitor producer responsibility obligations, held by private brand owners and importers. The PROs are positioned to be central in waste management innovation. However, Mr Cocker noted limitations, including complex legal issues among PROs and the potential impact on other industries and the broader market.

Dr Jordie Bruno, CEO and Chairman of the Board of Amphos 21 Group, Barcelona considered the practical implications of the circular economy. Namely, that the laws of thermodynamics and technical limits on resource recapture make it impossible to achieve a 100 per cent closed loop economy. This has ramifications for the effectiveness of eco efficiency and zero waste initiatives. These external circumstances should be taken into account when establishing the limits and conditions in which a circular economy might work from the economic, social and legal standpoints. It is important to keep products and ultimately waste, as close as possible to the source of the product

Overall, the session provided a range of comprehensive and well considered insights into the circular economy concept and the future of waste management. It is clear that the circular economy concept provides a number of innovative options, though it will be necessary to approach future projects with an open mind and be resistant to creating unrealistic expectations about the short-term outcomes of circular economy models.

[1] Partner, Best Best & Krieger, Riverside, California; Chair of the Environment Health and Safety Committee of the IBA

[2] Principal, Glen McLeod Legal Perth, Western Australia; Council Member, SEERIL

books

Listing of leading Western Australia Planning and Environment law firms

Glen McLeod Legal is pleased to have been recognised as a first tier planning and environment firm in Western Australia.

Glen McLeod, Principal of Glen McLeod Legal has also been recognised as a preeminent planning and environment lawyer.

It is an honour to be acknowledged by our clients and peers, and we look forward to continuing our close relationships in the year to come.

The full guide can be accessed at the links below:

Leading Planning and Environment Lawyers

Leading Planning and Environment Law Firms

Blue sky with clouds

Glen McLeod Legal represented the operators of a recycling plant that was issued with a stop work prevention notice by the Department of Water and Environmental Regulation pursuant to section 73A of the Environmental Protection Act 1986. Following effective negotiations with DWER, measures were put in place at the recycling plant to address issues raised and enable the timely withdrawal of the prevention notice.

Please contact Glen McLeod Legal by telephone on (08) 6460 5179 or by email at glen@glenmcleodlegal.com.au should you require advice concerning notices, orders or directions issued under the EP Act.