Rolling green hills

Glen McLeod, Principal at Glen McLeod Legal, recently contributed an article to the Australian Environment Review. Using the recent Western Australian state election as a reference point the article titled, ‘Environment and planning issues in Western Australia pre- and post- the 2017 state election’, examines three Western Australian Court decisions and their implications. A summary of the article follows.

Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482 turned on whether, under the proper construction of Part IV of the Environmental Protection Act (1986) (EP Act), the Environmental Protection Authority (EPA) had failed to consider a mandatory relevant consideration. The decision at first instance was reversed by the Supreme Court of Appeal which determined there had been no failure on the EPA’s part (Jacob v Save Beeliar Wetlands (Inc) (2016) 50 WAR 313). The observation made was that competing statutory interpretations can arise when complex legislation is the subject of a contemporary, contextual and purposive examination. Though the case did have the practical effect of delaying the project for it to be terminated by the new government.

The decision for Erujin Pty Ltd v Jacob [2017] WASC 35 was handed down one month before the state election and consisted of a judicial review of the environmental appeals process, focusing primarily on the issue of procedural fairness. Currently, appeals against environmental decisions are reviewed under the EP Act’s ministerial appeals system. The Court found that the system as it applied in this case did not create a breach of procedural fairness. Though a criticism levied at the ministerial appeals system is that it appears to be ‘deliberately designed to minimise the potential for litigation’.

Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279 concerned a challenge against the recommendations made by the State Administrative Tribunal (SAT) that a subdivision application within close proximity of the Kwinana Industrial Area and within the Kwinana Buffer Area be refused. The appellant argued that the SAT had taken into account irrelevant considerations. In his judgement, Chaney J concluded that the challenge be dismissed citing health, sustainability and precautionary reasons.

The existing buffer is under pressure from developers and local government due to a shortfall in legislative protection. The former WA Government promised legislative protections for the Kwinana Buffer Area, though it is not clear whether the new government will follow through with these plans.

These cases highlight some unusual features of the Western Australian appeals system, particularly the strong involvement of the executive arm of government in environment and planning decision making. The cases discussed in this article will be added to the body of precedent cited in future planning and environmental matters.