AUSTRALIAN ENVIRONMENTAL LAW DIGEST | November 2015 · ISSN: 2203-935X. AUSTRALIAN ENVIRONMENTAL...

ISSN: 2203-935X

AUSTRALIAN ENVIRONMENTAL LAW DIGEST | November 2015 Welcome to the latest edition of the Australian Environmental Law Digest.

Subscribe to the Digest for a quarterly selection of quality analysis of environment and climate change law developments around the country.

To contribute articles, please contact us at [email protected]

EDITORIAL The role of environmental litigation has been in the news in the past few months for various reasons, from the interest peaked by successful, innovative actions such as the challenge to the Dutch government’s climate policies, to the Federal Government’s characterisation of third party appeals as “lawfare” following the Federal Court’s decision to overturn the initial approval of the Adani Carmichael mine, and to subsequent attempts to remove the extended standing provisions which have allowed conservation groups to challenge decisions relating to matters of national environmental significance.

As the recent NELA submission to the parliamentary inquiry into those proposed changes noted:

Ensuring environmental groups have access to the courts to challenge the legality of government decisions is fundamental to environmental good governance, a strong democracy and a resilient economy.

Opportunities to enforce and uphold environmental laws remain an important mechanism for securing sustainable outcomes. With that in mind, this edition of the Australian Environmental Law Digest looks at some of the enforcement and compliance challenges experienced in environmental and planning law. Across jurisdictions, issues frequently arise regarding civil enforcement opportunities, the extent of a court’s jurisdiction, the criteria against which decisions are to be reviewed and standing to commence proceedings.

Deputy President of Western Australia’s State Administrative Tribunal, Judge David Parry, examines the Tribunal’s powers in relation to civil enforcement and declaratory relief and identifies areas where enhanced powers would improve the capacity to mitigate and remedy environmental harm.

Lauren Pinkerton, Madeline Wardleworth and Chris Wheeler look at the Dutch climate litigation and the potential for similar action in Australia, while Sean Ryan and Mark Geritz and Patrick Cranley offer differing perspectives on the implications of the Supreme Court decision upholding the approval of the Alpha coal mine.

mailto:[email protected]

http://form.jotform.co/form/42160701189854

In the wake of Japan’s decision to restrict the International Court of Justice’s jurisdiction over its activities, Brendan Gogarty questions the capacity of international laws to influence resource management decisions. Closer to home, Darren Wong considers whether a recent decision makes it any clearer when Cultural Heritage Management Plans will be required for projects involving ground disturbance.

This edition concludes with Sean Helbig’s winning entry in our 2014 essay competition. In response to the topic “Are We Selling Ourselves Short?”, Sean asks whether current legal and policy settings in Western Australia will allow social goals to be achieved and whether changes are needed to encourage renewable energy and to plan more effectively for sustainable, long-term energy security.

The NELA National conference is upon us again, and offers another great line up of speakers facilitating debate on where planning, climate and environmental laws are heading and whether we’re getting there fast enough. Hopefully we’ll see lots of you there!

IN THIS ISSUE

A Tale of Two States: Civil Enforcement of Planning Laws in Western Australia 3 and Victoria Judge David Parry, State Administrative Tribunal of Western Australia

Climate Change Liability: A World First 20 Lauren Pinkerton, Madeline Wardleworth and Chris Wheeler, King & Wood Mallesons

Strengthening the Rule of Science in Law 22 Brendan Gogarty, University of Tasmania

CHMPs and Significant Ground Disturbance: The Challenge Continues 24 Platinum King Investments Pty Ltd v Manningham CC [2015] VCAT 1484 Darren Wong, Maddocks

Perspectives on Coast and Country Association of Queensland Inc v Minister for Environment and Heritage Protection & Ors [2015] QSC 260

Case Update: Alpha Coal Judicial Review 26 Sean Ryan, EDO Queensland

Are “Net Benefit” and Scope 3 Emissions Relevant in Land Court 28 Objections Hearings? Mark Geritz and Patrick Cranley, Clayton Utz

NELA Conference update 31

The Road Toward Sustainable Energy in Western Australia: What Legal and 32 Policy Settings Could Make the South West Interconnected System Renewable? Sean Helbig

http://www.kwm.com/en/au/people/chris-wheeler

Australian Environmental Law Digest 3 www.nela.org.au

A tale of two States – Civil enforcement of planning laws in Western Australia and Victoria Paper delivered at the 2015 National Environmental Law Association (WA) State Conference

Judge David Parry, Deputy President, State Administrative Tribunal of Western Australia1

Abstract

The effective civil enforcement of planning laws is a matter of significant public interest in terms of both access to justice and the protection of the environment. The State Administrative Tribunal of Western Australia (SAT) was established in 2005, in part, as a specialist planning tribunal. In SAT's Annual Reports commencing in 2006-2007, each of the first three Presidents of the Tribunal have suggested that s 216 of the Planning and Development Act 2005 (WA), which permits a responsible authority to apply to the Supreme Court of Western Australia for an injunction to restrain a contravention of that Act, an interim development order, a planning scheme or a condition of development approval, should be amended to confer concurrent jurisdiction on SAT constituted by or including a judicial member. In SAT's Annual Reports commencing in 2007-2008, the Tribunal's Presidents have also suggested that jurisdiction should be conferred on SAT constituted by or including a judicial member to make declarations of right in relation to any right, obligation or duty imposed by or under planning, heritage and related laws. The Annual Reports have contrasted SAT's lack of jurisdiction in relation to civil enforcement of planning laws with equivalent jurisdictions in Australia, including the Victorian Civil and Administrative Tribunal (VCAT), which has jurisdiction to make enforcement orders on the application of a responsible authority or any other person to restrain and remedy breaches of planning laws.

This paper firstly outlines the suggestion for law reform in relation to civil enforcement of planning laws made in SAT's Annual Reports, the consideration of that suggestion in the Western Australian Legislative Council's Inquiry into SAT, and a concurrent suggestion made in SAT's Annual Reports for law reform in relation to civil enforcement of heritage laws which has, in effect, been taken up in terms of the draft Heritage Bill 2015 (WA). The paper then provides an overview of the legislative provisions in relation to civil enforcement of planning laws in Western Australia and Victoria before surveying 15 VCAT decisions which usefully illustrate the types of matters in which civil enforcement of planning laws has been sought in Victoria and would presumably be sought in Western Australia if equivalent jurisdiction were conferred upon SAT. The paper concludes with several reasons why the conferral of this jurisdiction upon the Tribunal would aid effective and prompt enforcement of planning laws in this State and mitigate and remedy environmental harm.

A suggestion for law reform in relation to civil enforcement of planning laws in Western Australia

The State Administrative Tribunal of Western Australia (known as SAT) was established in 2005, in part, a specialist planning tribunal. SAT exercises review jurisdiction under Pt 14 of the Planning and Development Act 2005 (WA) (PD Act) and under other written laws, such as planning schemes, in relation to a range of planning matters, including subdivision (s 251 of the PD Act), land use and development (s 252 of the PD Act) and directions given by responsible authorities under s 214 of the PD Act to restrain and remedy unlawful development (s 255 of the PD Act).

1 I wish to gratefully acknowledge research undertaken by my Associate, Mr Ross Fletcher, for the purposes of this paper and to thank Ms Helen Gibson, Deputy President of VCAT’s Planning and Environment List, for reviewing this paper and making helpful comments. Any errors in this paper are, of course, my own.

Australian Environment Law Digest 4 www.nela.org.au

Section 150(5) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) authorises the President of the Tribunal to report to the Attorney General about SAT's jurisdiction and functions or any matter connected with the exercise of that jurisdiction or the carrying out of those functions. In SAT's Annual Reports commencing in 2006-2007, each of its first three Presidents have made suggestions to Government for law reform in relation to civil enforcement of planning laws in Western Australia. In particular, in the 2006-2007 and subsequent Annual Reports, it has been suggested that s 216 of the PD Act, which permits a responsible authority to apply to the Supreme Court of Western Australia for an injunction to restrain a contravention of the PD Act, an interim development order, a planning scheme or a condition of development approval, should be amended to confer concurrent jurisdiction on SAT constituted by or including a judicial member.2

As stated at page 17 of the 2013-2014 Annual Report3:

The reason for this suggestion is that the Tribunal has been established, in part, as a specialist planning tribunal which already has jurisdiction under section 255 of the PD Act, to review directions given by local governments under section 214 where development is undertaken in contravention of a planning scheme, an interim development order, a planning control area requirement or a condition of approval. The Tribunal undertakes a very similar enquiry under section 255 to the enquiry which would be undertaken in determining an application for civil enforcement under section 216. The only real difference is that section 255 applications are commenced by the recipient of a direction, whereas section 216 applications are commenced by the issuer of a direction.

The Tribunal has judicial members familiar with planning laws who will be able to effectively exercise this jurisdiction. Responsible authorities are familiar with the Tribunal. The practice and procedure of the Tribunal, including its statutory objectives to act as speedily as is practicable and to minimise costs to parties, would seem to make it attractive to responsible authorities seeking to enforce planning laws. The effective enforcement of planning laws is a matter of significant public interest.

The Tribunal's Annual Reports have contrasted SAT's lack of jurisdiction in relation to civil enforcement of planning laws with the availability of that jurisdiction in similar bodies elsewhere in Australia. These include the Victorian Civil and Administrative Tribunal (known as VCAT), the first State super-Tribunal and the model for SAT, which, as discussed later in this paper, has jurisdiction to make enforcement orders to restrain and remedy breaches of planning laws in Victoria.

In SAT's Annual Reports since 2007-2008, each of the Tribunal's first three Presidents have also suggested that jurisdiction should be conferred on SAT constituted by or including a judicial member to make declarations of right in relation to any right, obligation or duty imposed by or under planning, heritage and related laws. The Annual Reports have noted that s 91 of the SAT Act enables a judicial member to make a declaration concerning any matter in a proceeding instead of or in addition to any other order the Tribunal makes in the proceeding. However, as stated at page 18 of the 2013-2014 Annual Report:

… this power is only exercisable when an enabling Act confers jurisdiction on the Tribunal. Where there is no enabling Act that confers jurisdiction on the Tribunal, citizens have no choice but to commence proceedings in the Supreme Court for a declaration. Supreme Court proceedings typically take longer and are more costly to conduct than the Tribunal proceedings. The Supreme Court is also generally not as familiar with planning, heritage and related laws and considerations as are the judicial members of the Tribunal.

Consideration of suggestion for law reform by Legislative Council Inquiry

Under s 173 of the SAT Act, a committee of the Western Australian Legislative Council was required to conduct an inquiry into SAT's jurisdiction and operation as soon as practicable after the end of a period of two years from the commencement of the Tribunal. On 7 June 2007, the Legislative Council charged

2 Under s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), a 'judicial member' means the President (who must be a judge of the Supreme Court: SAT Act s 108(3)) or a Deputy President (who must be a judge of the District Court: SAT Act s 112(3)). 3 http://www.sat.justice.wa.gov.au/_files/SAT%20AReport%202013-2014.pdf

http://www.sat.justice.wa.gov.au/_files/SAT%20AReport%202013-2014.pdf


the Standing Committee on Legislation with the task of undertaking this inquiry. In May 2009, the Standing Committee on Legislation published a lengthy report in relation to its inquiry4.

At [2.326] and [2.327] of its report, the Standing Committee on Legislation noted SAT's suggestion in the 2006-2007 and 2007-2008 Annual Reports that s 216 of the PD Act should be amended to confer concurrent jurisdiction on the Tribunal constituted by or including a judicial member. At [2.328] of its report, the Committee noted that “the SAT is able to grant interim injunctions under section 90 of the SAT Act, but that this power is only exercisable by the SAT in matters which are within its jurisdiction” and that “[c]urrently, applications pursuant to section 216 of the PD Act cannot be considered by the SAT.” The report then states as follows at [2.329] - [2.330]:

[2.329] The Committee also noted that, since the English Judicature Acts of 1873 and 1875 were re-enacted in Australian jurisdictions, the administration of equitable principles, including the granting of remedies of an equitable nature, such as injunctions, has been traditionally regarded as the special purview of the Supreme Court, although limited jurisdiction has been granted by statute to the District Court, Magistrates Court and other inferior adjudicative bodies such as SAT. This fundamental legal convention was acknowledged by the President of the SAT:

There is a great reluctance, I think, by superior courts around Australia, including the Supreme Court of Western Australia, to see inferior courts and tribunals like ours exercising equitable powers. For lawyers, putting it lightly, equity is something that should only be held at the highest levels by very careful hands, and there is insufficient trust for it to be handled lower down the chain, … The same issues apply to the Magistrates Court and even the District Court.

[2.330] The [Department of the Attorney General] did not express a view on the SAT's suggestion, instead referring the Committee to the [former Department for Planning and Infrastructure, now the Department of Planning], the department administering the PD Act and the President of the SAT. The [Department] agreed with the suggested amendment. In fact, the [Department] supported the amendment of section 216 of the PD Act so that applications for injunction under that section could only be dealt with by the SAT, rather than giving a responsible authority the option of applying to either the Supreme Court or the SAT.

At [2.331] of its report, the Committee stated that it 'did not support widening the scope of SAT's powers to grant injunctions'. However, the Committee did not provide any reasons for this view and did not provide any further discussion or analysis of this issue. As the report did not support the suggestion for the conferral of jurisdiction on SAT in relation to civil enforcement of planning laws, the WA Government's response to the report did not make reference to this issue.

Notwithstanding the support expressed by the former Department for Planning and Infrastructure to the Legislative Council Inquiry for the conferral of exclusive jurisdiction in relation to civil enforcement of planning laws upon SAT, the Tribunal's suggestions for law reform in this area have not been taken up by Government.

A suggestion for law reform in relation to civil enforcement of heritage laws in Western Australia

However, interestingly, a concurrent suggestion made in SAT's Annual Reports commencing in 2006-2007 for law reform in relation to civil enforcement of heritage laws in Western Australia has, in effect, been taken up in the draft Heritage Bill 2015 (WA) (Heritage Bill) which was released for public comment on 12 August 2015. The Heritage Bill is intended to replace the Heritage of Western Australia Act 1990 (WA) (HWA Act).

In SAT's Annual Reports, its Presidents have suggested that consideration should be given to amending s 69 of HWA Act, which enables the Minister, the Heritage Council or any other person to bring proceedings for an injunction to restrain a breach of a conservation order in the Supreme Court or the District Court, to confer concurrent jurisdiction on SAT constituted by or including a judicial member.

4 Report 14 Standing Committee on Legislation Inquiry into the Jurisdiction and Operation of the State Administrative Tribunal (May 2009) http://www.sat.justice.wa.gov.au/_files/Report_14_on_SAT.pdf

http://www.sat.justice.wa.gov.au/_files/Report_14_on_SAT.pdf


Clause 122(1) of the Heritage Bill, if enacted, would confer jurisdiction on SAT, concurrently with the Supreme Court and the District Court, on the application of the Minister for Heritage or the Heritage Council, to 'make such order or orders as the … Tribunal thinks fit for the purpose of securing compliance with this Act or [another] written law [by operation of the Act] and giving effect to the objectives of this Act, including an injunction or other order directing a person to do or refrain from doing a specified act, and any ancillary order deemed to be desirable in consequence'. Clause 122(2) of the Heritage Bill, if enacted, would confer jurisdiction on SAT, concurrently with the Supreme Court and the District Court, to 'grant an interim injunction ex parte pending final determination of an application under this section'.

The Heritage Bill does not require that SAT is to be constituted by or is to include a judicial member in order to exercise jurisdiction under cl 122, leaving the constitution of the Tribunal to be as specified by the President under s 11(1) of the SAT Act. However, it is likely that such an application would be listed for determination by a judicial member or by a panel with a judicial member presiding.

Legislation for civil enforcement of planning laws in Western Australia

Section 216 of the PD Act states as follows:

Breach of Act etc. or development approval, injunctions as to

(1) Without prejudice to any proceeding for an offence against this Act, if -

(a) a person contravenes a provision of this Act, an interim development order or a planning scheme; or

(b) a responsible authority grants an application for approval of development subject to conditions and the development is commenced, continued or completed contrary to or otherwise than in accordance with any condition imposed by the responsible authority with respect to the development

the Supreme Court may, on application by the responsible authority, grant an injunction -

(c) if the application is with respect to a contravention of the Act, an interim development order or a planning scheme, restraining the person from engaging in any conduct or doing any act, that constitutes or is likely to constitute a contravention of this Act, the interim development order or the planning scheme;

(d) if the application is with respect to the commencement, continuation or completion of a development contrary to or otherwise than in accordance with any -

(i) in the case condition imposed by the responsible authority with respect to the development where the development is commenced but not carried out, restraining the continuation or completion of the development or any use of the development; or

(ii) in the case where the development is completed, restraining the use of the development, until the condition is complied with.

(2) An injunction granted under subsection (1) -

(a) has effect for the period specified in the injunction or until further order of the Court; and

(b) may be varied or rescinded by the Court.

It appears that, since the commencement of the PD Act on 9 April 2006, no local government or other responsible authority has sought an injunction from the Supreme Court under s 216 of the PD Act to restrain any breach of planning law. Certainly, there is no published decision of the Supreme Court in relation to any such application.

One might speculate that this is due to the time and cost involved in Supreme Court proceedings. However, another reason may be suggested by the survey of Victorian civil enforcement cases below, namely that the type of matters in which civil enforcement of planning laws is typically sought before VCAT, while significant in terms of effective civil enforcement of planning laws and protection of the environment, largely involve routine, run-of-the-mill planning mattes which may not be seen as sufficiently complex or significant to warrant Supreme Court proceedings.


The range of matters in the Victorian cases will be familiar to Western Australian planning lawyers. The same types of allegations of unlawful development routinely arise in this State as well. However, in the absence of equivalent civil enforcement jurisdiction in SAT as in VCAT, it is likely that local governments and other responsible authorities faced with similar cases would give a direction seeking to restrain and remedy an alleged breach of planning laws under s 214 of the PD Act and/or prosecute the developer before the Magistrates Court under s 218 of the PD Act, rather than seek an injunction from the Supreme Court under s 216 of the PD Act.

Although a failure to comply with a direction constitutes an offence under s 214(7) of the PD Act, the recipient of the direction may not comply with it, or may seek review of the direction by SAT under s 255 of the PD Act and a stay of the direction under s 25(2) of the SAT Act until the determination of the review proceeding. The Magistrates Court is not a specialist planning jurisdiction with experience in planning law, policy and practice. Furthermore, a successful prosecution will not directly and promptly remedy a breach of planning law and any associated environmental harm or restrain an ongoing or future breach.

Section 214(2) and (3) of the PD Act authorises local governments and other responsible authority to give directions to restrain and remedy unlawful development in the following terms:

(2) If a development, or any part of a development, is undertaken in contravention of a planning scheme or an interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the planning scheme, interim development order or planning control area requirements.

(3) If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development -

(a) to remove, pull down, take up, or alter the development; and

(b) to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.

Section 255(1) of the PD Act confers jurisdiction on SAT to review a s 214 direction in the following terms:

A person to whom a direction is given under section 214 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision to give the direction.

As observed in SAT's Annual Reports, the Tribunal undertakes 'a very similar inquiry' in an application for review under s 255 of the PD Act to the inquiry which would be undertaken in determining an application for civil enforcement under s 216. Indeed, proceedings under s 255 of the PD Act, in effect, involve civil enforcement of planning laws although, somewhat curiously, only on the application to SAT of the alleged unlawful developer, and not on the application to SAT of the responsible authority seeking to restrain and remedy a breach of planning laws. The nature of applications under s 255 of the PD Act being, in effect, civil enforcement proceedings, is recognised by the terms of s 255(2) which states as follows:

If the State Administrative Tribunal confirms or varies the direction, it may, by written notice served on the person to whom the direction was given, direct the owner to comply with the direction as so confirmed or varied, within a period of not less than 40 days after service of the notice, as is specified in the notice.

In Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 at [61] - [63], the Tribunal identified five non-exhaustive 'important matters for consideration' in the exercise of discretion under s 214 of the PD Act which guide the Tribunal's consideration of applications under s 255 of the PD Act. Significantly, the survey of Victorian Civil enforcement cases later in this paper indicates that essentially the same matters for consideration apply in civil enforcement proceedings in VCAT.


The five matters for consideration as stated in Morea Architects and Town of Vincent at [63]5 are as follows:

• it is in the public interest of orderly and proper development (including use) of land that planning laws should generally be complied with. It is expected that, normally, those who use or physically develop land should comply with the planning legislation and any applicable approval in relation to that activity;

• the impact of the contravention of the scheme on the affected locality and environment;

• the factual circumstances in which the contravention of the scheme took place;

• the time which has elapsed since the development was undertaken in contravention of the scheme; and

• the expense and inconvenience which would be involved in remedying the contravention of the scheme.

Finally, in relation to legislation for civil enforcement of planning laws in Western Australia, it is to be noted that SAT, when constituted by a judicial member, has power under s 90(1) of the SAT Act to 'grant an interim injunction in any proceeding if it is just and convenient to do so' and under s 91(1) of the SAT Act to 'make a declaration concerning any matter in any proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.'

Section 90(1) and s 91(1) of the SAT Act do not confer jurisdiction upon the Tribunal, but rather confer power to grant an interim injunction and to make a declaration in a proceeding commenced under an enabling Act that confers jurisdiction upon the Tribunal, such as s 251 of the PD Act in relation to subdivision, s 252 of the PD Act in relation to land use and development and s 255 of the PD Act in relation to a direction to restrain or remedy unlawful development. However, when the Tribunal has jurisdiction in relation to a matter under one of these enabling Acts, it can also, in effect, undertake a form of civil enforcement of planning laws under s 90(1) and s 91(1) of the SAT Act when constituted by a judicial member.

A recent planning case in which the Tribunal granted an interim injunction is Franco and City of Nedlands [2015] WASAT 39. Mr Mario Franco sought review by the Tribunal under s 252(1) of the PD Act of the deemed refusals by the City of Nedlands of three development applications for single houses or adjoining properties at Jutland Parade, Dalkeith. Following six mediation sessions, culminating in modified development proposals, the City of Nedlands was invited by the Tribunal to reconsider its decisions pursuant to s 31(1) of the SAT Act. In accordance with its invitation, the Council granted conditional development approval for each of the proposed developments. The following day, the Chief Executive Officer of the City received a rescission motion proposing the revocation of the Council's decisions and reconsideration of reports in relation to the development applications. The City arranged for a Special Meeting of the Council to consider the rescission motion the next evening. Mr Franco then sought an interim injunction under s 90 of the SAT Act to restrain the Council from revoking its decisions made upon reconsideration and from making any further decisions in relation to the development applications until further order.

At [13] - [14] of the decision in Franco and City of Nedlands, the Tribunal referred to the applicable principles in relation to an application for an interim injunction as follows:

[13] As noted earlier, s 90(1) of the SAT Act confers a power on the Tribunal constituted by a judicial member to grant an interim injunction in any proceeding 'if it is just and convenient to do so'.

[14] In Madden and Shire of Broome [2007] WASAT 117; (2007) 54 SR (WA) 1 (Madden), the Tribunal's inaugural President, Barker J, considered the principles which are applicable in relation to an application for an interim injunction and said the following at [26] - [27]:

5 See also Drake and City of South Perth & Anor [2005] WASAT 271 at [93] - [97]


[26] It is usual to say when an interlocutory injunction is sought in court proceedings, as in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, that there are a number of principles that normally have to be established to get the injunction. The first is that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability at the trial of the action that the plaintiff will be entitled to relief; secondly that the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and thirdly that the balance of convenience favours the granting of an injunction.

[27] Those principles were laid down in the context of the principles governing the grant or refusal of interlocutory injunctions in private law litigation. They have also been applied in constitutional cases. Those principles are not entirely relevant in an administrative review context where the Tribunal has a statutory power to grant an interim injunction. However, they provide some guidance to the exercise of the statutory power in an administrative review context.

In Franco and City of Nedlands at [38], the Tribunal noted the suggestion of Beech J in Dengold Holdings Pty Ltd v Real Quality [2014] WASC 108 at [18] that “[t]here are questions as to whether the inadequacy of damages is a separate requirement for a consideration.” At [40], the Tribunal held that the considerations set out by Barker J in Madden and Shire of Broome [2007] WASAT 117; (2007) 54 SR WA 1 at [26] - [27] 'are not closed' and that other considerations may be relevant in relation to whether an interim injunction should be granted in the exercise of discretion.

At [15], the Tribunal found that it is 'just and convenient' to grant an interim injunction until there is an opportunity for a determination of a foreshadowed application for a declaration under s 91 of the SAT Act that the City of Nedlands may not lawfully revoke its substituted decisions made pursuant to s 31 of the SAT Act to grant conditional development approval to the proposed developments and cannot lawfully set aside the substituted decisions and substitute new decisions unless one of the circumstances set out in paragraphs (c), (d) or (e) of s 26 of the SAT Act applies. The Tribunal found at [21] that there was 'a serious question to be tried and a prima facie case … that, under s 26 of the SAT Act, the Council is now expressly precluded from varying the substituted decision, or setting aside the substituted decision and substituting another decision, unless one of the circumstances set out in paragraphs (c), (d) or (e) of s 26 of the SAT Act applies.' (Section 26 of the SAT Act provides that, after the commencement of a proceeding for the review of a decision, the original decision-maker cannot vary the decision or set aside the decision and substitute its new decision unless 'that is permitted by the enabling Act' (paragraph (c)), or 'the parties to the proceeding consent' (paragraph (d)), or 'the decision-maker is invited under s 31 to reconsider the decision' (paragraph (e)).

The Tribunal also found that 'the balance of convenience lies firmly in favour of granting an injunction to restrain the City from revoking its decisions' (at [30]), because there was potentially significant detriment to Mr Franco if the revocation motion were considered and if the decisions to grant development approval were revoked, because, pursuant to s 31 of the SAT Act, he had the benefit of development approvals granted to him by the City, following significant litigation, and although he maintained a right of review by the Tribunal of any substituted decision by the City, 'that merit assessment [by SAT] may come to a different conclusion from that conclusion reached by the City' (at [34]). In contrast, the Tribunal found that there was 'no injustice or prejudice to the City in enjoining it from considering the revocation proposal and from making a fresh determination in relation to the development applications' (at [36]).

However, s 90(1) of the SAT Act does not authorise the Tribunal to grant a final injunction to restrain a breach of planning laws and that provision and s 91(1) of the SAT Act do not authorise the Tribunal to grant an injunction or to make a declaration for the civil enforcement of planning laws unless, again somewhat curiously, a review proceeding is commenced by a person alleged to have undertaken development in breach of planning laws.


The relevant local government or other authority responsible for enforcement of planning laws has no independent standing to commence a proceeding in the Tribunal for an injunction or a declaration for the effective civil enforcement of those laws.

Legislation for civil enforcement of planning laws in Victoria

VCAT was the first State super-tribunal in Australia. SAT, which was the second State super-tribunal in Australia, was largely modelled on VCAT. Although there are differences between VCAT and SAT in terms of jurisdiction, both are, in part, a specialist planning tribunal, and both have judicial and other members with specialist experience in relation to planning law, policy and practice.

Section 114 of the Planning and Environment Act 1987 (Vic) (PE Act) confers jurisdiction on VCAT to grant enforcement orders for the civil enforcement of planning laws in Victoria. Section 114 of the PE Act states as follows:

Application for enforcement order

(1) A responsible authority or any person may apply to the Tribunal for an enforcement order against any person specified in subsection (3) if a use or development of land contravenes or has contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under section 173.

[Sub-section (2) was repealed by Act No. 52/1998, s 188(1)(b)]

(3) An enforcement order may be made against one or more of the following persons -

(a) the owner of the land;

(b) the occupiers of the land;

(c) any other person who has an interest in the land;

(d) any other person by whom or on whose behalf the use or development was, is being, or is to be carried out.

Applications to VCAT for enforcement orders under s 114 of the PE Act are made regularly by local governments and others. VCAT's Annual Reports during the period 2004-2005 to 2010-2011 and subsequent data provided by VCAT's Principal Registrar, Mr Jim Nelms, indicates that, during the decade from 2004-2005 to 2013-2014, an average of about 165 applications for enforcement orders were made to VCAT each year.

Section 119 of the PE Act prescribes what an enforcement order can provide for in the following terms:

What can an enforcement order provide for?

An enforcement order made by the Tribunal -

(a) must specify -

(i) the use or development which contravenes or has contravened or will contravene this Act or the planning scheme, permit condition or agreement; and

(ii) any other prescribed information; and

(b) may direct any person against whom it is made to do any one or more of the following -

(i) to stop the use or development within a specified period; or

(ii) not to start the use or development; or

(iii) to maintain a building in accordance with the order; or

(iv) to do specified things within a specified period -

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or


(B) to otherwise ensure compliance with this Act, or the planning scheme, permit condition or agreement under section 173.

Section 120 of the PE Act confers power on VCAT to grant 'an interim enforcement order' in 'an urgent case' where a responsible authority or other person has applied under s 114 of the PE Act for an enforcement order. As will be seen from the discussion of Metroll Victoria Pty Ltd v Wyndham CC [2007] VCAT 748 below, the principles applied by VCAT in relation to an application for an interim enforcement order are essentially the same as the principles applied by SAT in relation to an application for an interim injunction under s 90(1) of the SAT Act.

Section 121 of the PE Act enables VCAT to cancel or amend an enforcement order or an interim enforcement order.

Section 124 of the PE Act makes any enforcement order or interim enforcement order served on an owner or occupier of land 'binding on every subsequent owner or occupier to the same extent as if the order had been served on that subsequent owner or occupier.'

Although, like SAT, VCAT is under judicial leadership of a President who is a Justice of the Supreme Court and Vice Presidents who are County Court (the equivalent of the Western Australian District Court) Judges, the exercise of its jurisdiction in relation to applications for enforcement orders is not restricted to judicial members. Indeed, none of the published decisions of VCAT that I have readily found involve decisions of judicial members, but rather are decisions of ordinary members or senior members of the Planning and Environment List who otherwise routinely determine planning review applications of the nature also routinely heard by ordinary members and senior members of SAT.

Finally, Ms Helen Gibson, Deputy President of VCAT’s Planning and Environment List, has advised that VCAT has adopted the practice of referring most enforcement proceeding to a compulsory conference (which have taken over from mediations as VCAT's preferred method of facilitative dispute resolution). Ms Gibson observes that:

In many cases, there is little or no dispute that a breach of the planning scheme or planning permit has occurred. It is more a matter of negotiating how it will be remedied and adopting realistic time frames for compliance. Of course, a hearing is still required if the breach is disputed.

It is interesting to note that SAT’s experience in another area of alleged civil 'wrongdoing', namely vocational disciplinary proceedings, is precisely the same – in most vocational disciplinary matters referred for mediation, there is no dispute that the alleged misconduct occurred (although there is likely to be if the matter were adjudicated) and the focus is on the appropriate disciplinary consequence of the conduct, an equivalent discussion to how a breach of planning of law will be remedied and adopting realistic time frames for compliance.

Survey of Victorian civil enforcement cases

I have selected 15 published VCAT decisions which usefully illustrate the types of matters in which civil enforcement of planning laws has been sought in Victoria and would presumably be sought in Western Australia if SAT were conferred civil enforcement jurisdiction under s 216 of the PD Act or under a similar suite of provisions as s 114 to s 124 of the PE Act.

With a few exceptions, the surveyed cases do not establish or even apply any significant planning law or principle. The cases also, on the whole, do not involve any complex factual disputes. In fact, the surveyed cases largely involve routine, run-of-the-mill planning matters in circumstances with which delegates at this conference would be familiar from their own experience.

While no doubt each of the surveyed cases was of significance to the parties before VCAT and some were of wider public interest to the affected local community and beyond, their key importance is that they reflect the availability of a jurisdiction for the effective civil enforcement of planning laws in a similar tribunal setting to SAT which is also, in part, a specialist planning tribunal where, like in SAT, the emphasis is on speed, minimisation of formality and technicality, minimisation of costs to parties, focus on the substantial merits of cases, and proportionality.


Mornington Peninsula SC v Impe (No 1999/98542, 9 March 2001, Mr RC Horsfall, Deputy President)

The Tribunal found that the respondent had breached the provisions of the applicable planning scheme by clearing vegetation from a large portion of the site in Portsea on the Mornington Peninsula, by excavations of more than one metre on the site and by commencing the construction of a building and other works without necessary planning permits. The Tribunal made an enforcement order requiring (i) the building and works to be removed within 14 days; (ii) the land to be reinstated 'as far as possible to its natural state prior to the commencement of the building and works' to the satisfaction of the Council within 14 days; (iii) 'Landscaping with trees, shrubs and groundcovers indigenous to the locality of varieties, numbers and locations to the satisfaction of the Responsible Authority must be established on the subject land to the satisfaction of the Responsible Authority' within 14 days; (iv) 'Landscaping re-established in accordance with this order must be maintained to the satisfaction of the Responsible Authority; and (v) 'No use or development is to be carried out on the subject land without a planning permit as required by the Mornington Peninsula Planning Scheme.'

Mildura Rural CC v Crisera & Ors (No 2000/94609, 15 March 2001, Mr RC Horsfall, Deputy President)

The Tribunal found that the owners and occupiers of land in a country town were in breach of a condition of a planning permit permitting the use of the site for the compressing and storage of waste paper which required that the permitted use 'not cause injury to or prejudicially affect the amenity of the locality … by reason of the appearance of any … materials or by reason of the emission of … waste products …'. The Tribunal found a breach of this condition by reason of the untidy appearance on the site of materials, namely waste paper and other waste products, and by reason of the emission of waste paper and other waste products from the site. The applicant Council had received complaints and the owners and occupiers of the site had done little to clean it up. The Tribunal made an enforcement order requiring that the site 'must be tidied up and all waste paper neatly stacked and tied in a manner which ceases to cause an adverse effect [sic] on the amenity of the area to the satisfaction of the Responsible Authority' within 21 days or such further time as is allowed by the Tribunal or the Council.

Casey CC v Verduci & Ors [2002] VCAT 595

The Tribunal found that the retail use of the site, which was zoned Rural under the applicable planning scheme, was in breach of conditions of the planning permit which only enabled the sale of 'primary produce'. Following the review of evidence and a view of the site, the Tribunal characterised the use as a 'shop' (and, more particularly, a 'green grocers') which was a prohibited use in the zone, given that, as well as equally large quantities of fruit and vegetables, other food items were being sold, the majority of which could not be characterised as ancillary to primary produce. The Tribunal made an enforcement order requiring the respondents to cease the use of the site 'for any purposes other than for the permitted use of primary produce sales' within 14 days.

Mornington Peninsula SC v Voller [2002] VCAT 758

The respondents filled an area of approximately 600m² without a planning permit as required by the planning scheme. They sought retrospective planning approval from the Council. The Council applied to VCAT for an enforcement order requiring the removing of the fill and the restoration of the site to its original state. The respondents sought review by VCAT of the refusal of their application for a planning permit. The two applications were heard together in the same way as applications for review of the refusal of a development application (under s 252(1) of the PD Act) and for review of a direction to restrain or remedy unlawful development (under s 255 of the PD Act) are heard together in SAT. The Tribunal heard engineering evidence called by the respondents, which was not contested by the Council, that the fill would not have any adverse impacts in terms of stormwater seepage to an adjoining property, environmental damage or effect on drainage patterns, in part because of a proposal to revegetate. Although the Council argued that the change to the topography of the site created a viewing platform that overlooked the neighbouring property and interrupted the natural character of


the area, the Tribunal determined that the development application warranted approval in the exercise of planning discretion, given that it was not dissimilar to the flat areas on the neighbouring property and that the impacts were generally consistent with the character of the area.

This case usefully highlights the utility of having both planning review and civil enforcement of planning law matters dealt with concurrently by a specialist planning tribunal. In another case before VCAT where this occurred, although the Tribunal considered that most of an existing development warranted retrospective planning approval, it was able to make a limited enforcement order to require cessation of the part of the development that it did not consider warranted approval: The Club Cape Shank Resort v Mornington Peninsula SC [2001] VCAT 1260 at [99] - [101].

Bowen v KFT Investments Pty Ltd & Ors [2003] VCAT 797

The applicants operated a dairy farm with an ice cream factory and milk depot on their rural property downstream from an aerodrome. The applicants alleged that as a result of contaminated fill material used on the aerodrome site and changes to engineering plans, run-off from that site had exceeded the levels specified in a planning permit and had resulted in increased turbidity and salinity levels in the applicants' dam, making the water unusable for cleaning dairy equipment, ice cream manufacturing equipment and domestic uses on their property. The Tribunal was not satisfied on a balance of probabilities that fill placed on the aerodrome site had resulted in increased turbidity and salinity levels in the applicants' dam, given that the sediment ponds on the site had only overflowed twice, there were other local factors which may well have resulted in increased turbidity in the applicants' dam, and the large size of the dam.

Although the Tribunal was satisfied that there was 'some tardiness' in testing of water quality as required by a planning permit, it determined in the exercise of discretion that this was 'not a sufficient basis for the making of an enforcement order' (at [87]). The application for an enforcement order was therefore dismissed.

Campaspe SC v Wright [2004] VCAT 991

The Tribunal found that the respondent, a licensed plumber, was using his property in a predominantly residential part of a small rural settlement, for the recycling, storage and sale of plumbing supplies. Although the respondent sought a retrospective planning permit, he did not seek review of the Council's refusal of his application. The Council, supported by local residents, contended that the use of the site was inappropriate in the zone and compromised the visual environment. The Tribunal found that the visual impact of the use remained significant and unacceptable, and had an adverse impact on the amenity of the locality, even though the respondent had taken steps to remove materials from the site and to take care when parking vehicles on the site. The Tribunal made an enforcement order requiring the respondent to cease use of the site 'for the purpose of the collection, storage, recycling and/or selling of scrap metals' within two months and to remove those materials from the site within three months, which was one month longer than sought by the Council as the Tribunal was 'mindful of the practical realities in removing materials' (at [21]).

Greater Geelong CC v Falls [2007] VCAT 291

The applicant City sought an enforcement order requiring a landowner to modify a first floor bedroom window to be of obscure glazing or externally screened to the satisfaction of the City. When the City granted the planning permit for the construction of the dwelling, it required the first floor windows to be obscure glazed. It did so following an objection from a neighbour who was concerned about visual privacy. However, the City subsequently endorsed building plans which showed the relevant window to have clear glass and the building was subsequently built in accordance with the building plans and then sold to the current owner. The City was prepared to meet the cost of the modification. However, the landowner objected on the basis that the window was the only window to the bedroom for her two children.


The Tribunal sought to mediate the matter and the member who conducted the hearing even sought to resolve the matter through facilitative dispute resolution during the hearing, but ultimately observed that 'no settlement has been possible' (at [11]). The Tribunal found that 'what is now built does not, actually or in spirit, accord with [the condition requiring obscure glazing]' (at [17]). The Tribunal determined that the City's request for an enforcement order 'is appropriate so as to rectify a valid concern' (at [18]). However, the Tribunal was keenly aware of the 'understandable' concern of the landowner of having the only window to her children's bedroom being entirely opaque glazed.

The Tribunal, therefore, being a specialist planning tribunal, fashioned a creative planning solution requiring the landowner to affix a solid or louvered external screen or fin 'so that views into the rear open space of [the adjoining property] are restricted or prevented while still allowing occupants of the bedroom to gain longer range views from the window as well as morning sunlight and good daylight' (at [20]). The Tribunal required the external screen to be fitted within 45 days. This case highlights the utility of civil enforcement proceedings in relation to planning matters being dealt with by a specialist planning tribunal familiar with development assessment and approval and able to fashion creative and sensible outcomes in terms of both development assessment and civil enforcement of planning laws.

Metroll Victoria Pty Ltd v Wyndham CC [2007] VCAT 748

The applicant, which manufactured building products and employed 70 people in its industrial premises at Laverton North, sought an enforcement order to restrain the respondent from operating a recently constructed gas fired power station from premises across the road. The locality was zoned Industrial under the applicable planning scheme. The applicant alleged that the gas fired power station was being operated in breach of a condition of the planning permit which required the use, in the opinion of the responsible authority, to not 'adversely affect the amenity of the locality by reason of the processes carried on …'. There was strong and uncontested evidence that, since the power station commenced to operate about four months prior to the hearing, it caused significant vibration and noise levels within the applicant's building and that this caused adverse health impacts, including headache, earache, nausea and dizziness for a large number of the applicant's employees.

The applicant sought an interim enforcement order under s 120 of the PE Act to restrain the gas fired power station from operating until the final determination of the proceeding for the enforcement order. The Tribunal observed that the purpose of an interim enforcement order 'is to halt some harm on an interim basis until the full hearing can occur and all [the factual issues] can be resolved' (at [30]). In an application for interim relief, the Tribunal's task 'is not to make final findings about whether a breach of condition 3 of the permit has occurred and is continuing to occur, [but] rather … [to] consider whether there is a serious question to be tried and the likelihood (or probability) of the applicant's success' (at [29]). Relevantly, the determination of whether there was a serious question to be tried and the probability of the applicant's success at the final hearing involved an assessment of 'whether there is a prima facie breach of the permit and the probability of the application for enforcement order ultimately being successful' (at [57]). The Tribunal also observed that, in deciding whether there is a serious question to be tried, 'I need to be satisfied that there is a prima facie breach of the permit conditions and that the breach is real, not spurious or fanciful' (at [64], citing Marson Constructions Australia Pty Ltd v Hillcrest Manor Pty Ltd [2000] VCAT 29 at [11]). The Tribunal held that a second principal matter for consideration in determining whether to grant an interim enforcement order is 'where the balance of convenience lies' (at [58]). In this context, the Tribunal also referred to the statement of principle by the former President, Justice Stuart Morris, in Stonnington City Council v Blue Emporium Pty Ltd [2003] VCAT 1954; (2003) 15 VPR 267 at [7] that 'the [T]ribunal should take the course which appears to carry the lower risk of injustice'.

It is to be noted that the principles applied by VCAT in relation to an application for an interim enforcement order are essentially the same as applied by SAT in relation to an application for an interim injunction under s 90(1) of the SAT Act in cases such as Franco and City of Nedlands [2015] WASAT 39 discussed earlier.


Applying these principles, the Tribunal found that, on the basis of the uncontested evidence, that the power station was adversely affecting the health and wellbeing of the applicant's employees and interfering with their ability to work by reason of the emission of noise and vibration and the fact that the applicant's development and use of its land was not an unusual or 'super sensitive' use and pre-dated the power station use, there was a serious question to be tried at the hearing of the enforcement order application in the sense that there was a prima facie breach of the condition of the permit in terms of adverse effect on the amenity of the locality. The Tribunal also found that the balance of convenience favoured the making of an interim enforcement order restraining the power station from operating during the normal business hours of the applicant, namely 8.00 am to 5.00 pm Monday to Friday (except on public holidays or in the event of an emergency), which effectively addressed the concerns of the applicant but did not preclude operation of the power station when the applicant's business was not generally operating.

In an impressive decision, both in terms of the analysis of the principles and issues and the promptness of its determination, the Tribunal ultimately balanced the competing considerations at [107] of its reasons as follows:

It seems to me that the most important competing interests that I must weigh up are those of financial loss compared to human health. I consider it is more important to protect the human health of Metroll employees even though this may result in some financial loss to Snowy Hydro. The adverse health effects are not trivial or easily put up with. They are not theoretical or potential. Rather, they have occurred; they are continuing to occur; and they are likely to continue until the present levels of noise and vibration stop.

South Gippsland SC v Dimopoulos [2008] VCAT 2172

The Tribunal found that the respondents were using their Farming zoned property for Intensive Animal Husbandry, and in particular as a piggery, without a planning permit, in breach of the applicable planning scheme. The Tribunal found that this use gave rise to significant offsite odour impacts, environmental harm in terms of effluent and high nutrient runoff, which had contaminated or had potential to contaminate gullies and waterways, the escape of pigs onto neighbouring land which had caused damage to pasture, and the escape of pigs onto nearby roadways which had caused risk to drivers' safety. Although the use was capable of approval by a planning permit, the Tribunal noted that 'it is far from certain that a permit will issue for the use of this land for Intensive Animal Husbandry (piggery)' and that, even if a permit were granted, 'there is no certainty that the permit holders would act on the permit to comply with its requirements which are likely to be onerous and involve the provision of additional infrastructure on the land' (at [17]). The Tribunal, therefore, determined that there was 'no logic in deferring an Enforcement Order until such time as a permit application may be made and determined' (at [18]), particularly given the evidence of ongoing and potential harm to the amenity and environment of the locality.

The Tribunal, therefore, made an enforcement order and carefully fashioned its terms to address the risks posed by the development. The Tribunal required the respondents, (i) within 10 days, to install diversion drains in areas identified by the Council in conjunction with the Environment Protection Authority to prevent runoff and effluent from entering gullies and waterways; (ii) within three weeks, to remove all pigs and dogs from the land to the satisfaction of the Council; (iii) within three weeks, to remove all waste, fencing, materials and structures associated with the use of the piggery from the land; and, (iv) during a nominated two week period in approximately two months, to use farm machinery to plough all excrement from all areas where pigs had been kept and to re-sow all ploughed areas with a suitable species of grass, to the satisfaction of the Council.

Alpine SC v De Pasquale [2010] VCAT 1782

The applicant Council alleged that an existing residence had been unlawfully converted to four dwellings and sought an enforcement order requiring works to revert the residence to its pre-conversion state. Following the commencement of the proceeding, the respondents carried out some works to the building in order to address the Council's concern that the single residence had become four


dwellings. With the benefit of plans, photographs, expert evidence and a view, the Tribunal undertook a detailed assessment of the characteristics of each of the four parts of the building, including areas capable of being used as kitchens, bathrooms, lockable doors and post boxes. The Tribunal found that 'objectively, the building has … been converted from a single dwelling (in its original form, in accordance with the building permit) to a different form of accommodation, being two dwellings (on the first floor) and two accommodation units (other than dwellings) (on the ground floor)' (at [30]).

The Tribunal therefore made an enforcement order

• requiring the removal of three deadlocks on internal doors and the replacement of the deadlocks with unlockable door handles;

• restraining the respondents from carrying out or causing to be carried out any further building works that would enable any of the relevant doors from being locked from either side; and

• restraining the respondents from re-installing either or both of the kitchen sinks in the two kitchens on the ground floor (which had been removed following the commencement of the proceeding and which the Tribunal found from its inspection during the view 'could be returned with little difficulty, having regard to the temporary installation of the cut-outs and the existing nearby capped plumbing facilities' (at [23])).

Casey CC v Robinson [2011] VCAT 2123

The Tribunal found that the respondent was using her rural property for the keeping of more than five animals without a current planning permit for 'animal keeping' as required by the applicable planning scheme. There was a history of VCAT litigation in relation to this use, with the most recent planning permit having been cancelled at the direction of the Tribunal only three months earlier. The respondent sought six to nine months to remove the animals, while the Council sought the removal within two months. The Tribunal made an enforcement order requiring the removal of all but five animals from the property within three months.

Yarra Ranges SC v Nicholas & Anor [2011] VCAT 2150

The Tribunal found that the storage of two shipping containers and miscellaneous building materials on Green Wedge zoned land involved the use of the land for 'storage' which was prohibited under the applicable planning scheme. The Tribunal made an enforcement order requiring the removal of the shipping containers and the building materials and the making tidy of the land to the satisfaction of the Council by a specified date within approximately three months.

Casey CC v Ploudias [2012] VCAT 95

The Tribunal found that the storage of unregistered motor vehicles and motor vehicle parts and boats on Green Wedge zoned land was properly characterised as 'materials recycling' which was a prohibited use unless the land was used in conjunction with a refuse disposal or transfer station (which was not the case) under the applicable planning scheme. The Tribunal made an enforcement order requiring the cessation of the use of the land for materials recycling and removal of all unregistered vehicles and motor vehicle parts and boats to the satisfaction of the Council within three months.

Whittlesea CC v Tenovski [2012] VCAT 102

The Tribunal found that the respondent had constructed sheds and was keeping chickens on a semi-rural property on the northern outskirts of Melbourne without having obtained a planning permit and in circumstances where the planning scheme regarded the area as having been inappropriately subdivided and, therefore, only enabled the granting of a permit on land that had first been 'restructured', usually by consolidating it with a number of adjoining properties. The Tribunal rejected the respondent's arguments that he had been 'victimised' by the Council and that he did not have the capacity to comply with an order. The Tribunal observed that other buildings in the locality shown in the respondent's photographs may have been approved with a permit or may have pre-dated the


current planning framework. The Tribunal also found that removing the rudimentary buildings and works would not involve a major expense. The Tribunal, therefore, made an enforcement order requiring the removal of all structures (other than boundary fencing) from the site, cessation of the use of the site for storage of building materials and restoration of the site as nearly as practical to its pre-development condition, to the satisfaction of the Council within two months.

Vandermeer v Mornington Peninsula SC [2013] VCAT 1914

The applicant, who owned a property in a harbour residential development on Port Phillip Bay, known as Martha Cove, and who was also a member of the management committee which managed the common property including the waterways, jetties and pontoons within the development, opposed what he contended to be the unauthorised use and development of the common property for berthing personal watercraft such as jet skis and boat tenders. He contended that the berthing of these watercraft in the waterways on the common property gave rise to various safety, security and environmental concerns. Having had little success in persuading the local government to bring enforcement proceedings about the personal watercraft moorings, the applicant applied to VCAT for an enforcement order to, in effect, require cessation of the use of the common property for mooring personal watercraft and removal of the floating pontoons in these moorings. The Owners Corporation applied to the local government to amend a condition of the permit to allow the 22 'small vessel moorings' in the common property and the Council issued a notice of decision amending the condition to authorise 21 'pontoon moorings' in the common property. The applicant then commenced a third party appeal against that decision which was scheduled for hearing three months after the Tribunal's decision in relation to the enforcement order proceeding.

The Tribunal undertook a careful assessment of the number of moorings in the common property in comparison to the conditions of the planning permit and found that 14 personal watercraft moorings within the common property constituted a use and development of that land which was not authorised by the permit. Although the appeal in relation to the approval of the 21 additional 'pontoon moorings' was pending, the Tribunal determined that the longstanding contravention of the planning permit should be remedied. The Tribunal, therefore, required 'as stage 1, the Corporation to take whatever steps are required to promptly stop the use of the personal watercraft moorings' (at [46]). As 'stage 2' to its order, the Tribunal also required the removal of the floating pontoons in the 14 personal watercraft moorings if, in the planning review proceeding, the Tribunal ultimately refused to amend the permit. The Tribunal's ability to fashion this order also highlights the practical utility of having both planning review and civil enforcement of planning law matters before the same specialist planning tribunal.

Conclusion

The effective civil enforcement of planning laws is a matter of significant public interest in terms of both access to justice and the protection of the environment. SAT was established, in part, as a specialist planning tribunal. It comprises judicial and other members with experience in planning law, policy and practice. In its Annual Reports over the last seven to eight years, each of SAT's first three Presidents have suggested the need for law reform in relation to civil enforcement of planning laws in Western Australia. In particular, it has been suggested that concurrent jurisdiction should be conferred upon the Tribunal, when constituted by or so as to include a judicial member, to grant injunctions under s 216 of the PD Act and that jurisdiction should be conferred upon the Tribunal, when constituted by or so as to include a judicial member, to make declarations of right in relation to any right, obligation or duty imposed by or under planning, heritage and related laws.

SAT already, in effect, carries out civil enforcement of planning laws when, under s 255 of the PD Act, it reviews directions given by local governments and other responsible authorities to restrain and remedy alleged unlawful use and development of land. When constituted by a judicial member, SAT also, in effect, undertakes a form of civil enforcement of planning laws when, under s 90(1) of the SAT Act, it considers whether to grant an interim injunction in a review proceeding concerning development for


which development approval is sought or concerning alleged unlawful development. Similarly, when constituted by a judicial member, SAT also, in effect, undertakes a form of civil enforcement of planning laws when, under s 91(1) of the SAT Act, it considers whether to make a declaration concerning a matter in a proceeding instead of any orders that it could make, or in addition to any orders that it makes, in the proceeding, when the proceeding involves the review of a decision concerning development for which development approval is sought or concerning alleged unlawful development.

However, unlike VCAT, which is a similar body to SAT and which also includes a specialist planning jurisdiction, SAT does not have express and direct civil enforcement jurisdiction in relation to planning laws and, somewhat curiously, SAT can only undertake a form of civil enforcement of planning laws in review proceedings brought by developers. Local governments and other authorities responsible for the enforcement of planning laws do not have standing to seek orders from SAT for the civil enforcement of those laws.

It is not for me as a serving Judge to advocate for law reform, even in relation to the effective civil enforcement of planning laws, a topic that has been near and dear to my heart for most of my professional career. I will leave it to NELA and its members and delegates to connect the dots and to consider whether law reform in this area is warranted.

However, having reviewed the Victorian provisions in relation to enforcement order applications and provided a survey of some illustrative cases showing the application of those provisions by VCAT, I would observe that if the suggestion of successive Presidents of SAT for conferral of injunctive and declaratory jurisdiction upon the Tribunal is considered to be 'a bridge too far' for a civil and administrative tribunal (even if that jurisdiction were exercised only by Judges), a practical solution for effective civil enforcement of planning laws in Western Australia would be the adoption of the Victorian model of conferring jurisdiction to make enforcement orders and interim enforcement orders on SAT.

Indeed, there would appear to be a number of benefits in adopting the Victorian model of enforcement order applications in Western Australia over the conferral of concurrent jurisdiction under s 216 of the PD Act and declaratory jurisdiction on SAT constituted by or including a judicial member.

First, the adoption of the Victorian model would enable all SAT members with appropriate experience in planning law, principle and practice, and not just judicial members, to exercise this jurisdiction. This is consistent with the s 255 of the PD Act and cl 122 of the Heritage Bill which do not restrict the exercise of review jurisdiction in relation to directions given by responsible authorities under s 214 of the PD Act and the exercise of enforcement jurisdiction in relation to heritage laws to judicial members of SAT.

Secondly, for this reason, it would more readily enable concurrent determination of applications for retrospective development approval and enforcement applications concerning the same development.

Thirdly, although SAT has power under s 73(1) of the SAT Act 'to make any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power', which may authorise orders to remedy the consequences of development of land in breach of planning laws (if the Tribunal were conferred with jurisdiction to grant injunctions to restrain breaches of planning laws), it would be preferable for there to be express statutory authorisation for SAT to make orders for the removal of unlawful development and the restoration of land such as is prescribed in the case of VCAT by s 119(b) of the PE Act.

Fourthly, the Victorian model provides for more effective enforcement of planning laws, because it confers open standing on any person to seek an enforcement order, and does not restrict standing to local governments and other responsible authorities. Vandermeer v Mornington Peninsula SC [2013] VCAT 1914 provides an example of a case in which the responsible authority refused to commence enforcement proceedings and enforcement proceedings were successfully brought by a third party to restrain a longstanding breach of a planning permit.

Finally, given the critical role of facilitative dispute resolution and in particular mediation in most types of proceedings in SAT, including planning proceedings, the option of the Victorian model, as opposed to a


suggestion to restrict civil enforcement to judicial members, would more readily and efficiently enable the resolution of planning enforcement matters by consent orders made by non-judicial members following resolution through mediation.

As I said, it is not my role to advocate for law reform. However, having studied the Victorian legislation and VCAT’s decisions surveyed above, in my view, the conferral of jurisdiction along the lines of the Victorian model upon SAT is likely to result in more effective and prompt enforcement of planning laws and mitigation of harm to the environment and to amenity associated with breaches of planning laws. I have formed this view for the following eight reasons.

First, SAT and in particular its planning jurisdiction is well known to local governments and other responsible authorities. If responsible authorities had standing to seek enforcement orders from SAT, then they are likely to do so, as they regularly do in VCAT.

Secondly, SAT’s main objectives (set out in s 9 of the SAT Act) and general approach to its work emphasises speed, minimisation of formality and technicality, minimisation of costs to parties, focus on the substantial merits of cases, proportionality, facilitative dispute resolution rather than adjudication, and use of the specialist knowledge and experience of its members.

Thirdly, SAT’s membership comprises judicial and other members with specialist experience in planning law, principle and practice, including interpretation and application of planning laws and development assessment.

Fourthly, SAT’s full-time and sessional membership includes subject matter experts in fields such as planning, architecture, engineering, surveying and environmental science.

Fifthly, as the Victorian cases show, there are great benefits in related applications for retrospective development approval and for enforcement of planning laws to be resolved concurrently in the same specialist forum, both in terms of speed, efficiency and minimisation of public and private costs, and also in terms of the range of planning outcomes and solutions that can occur.

Sixthly, as also borne out by VCAT’s experience, SAT’s emphasis upon and success in facilitative dispute resolution and in particular mediation is likely to result in more prompt, creative and lasting solutions, because parties are able to fully address underlying environmental planning issues, without fear that what they say or concede will harm their interests in the proceeding or otherwise, and because they are able to create their own planning solutions, with the assistance of a SAT member who is an independent subject matter expert.

Seventhly, and in consequence of the foregoing reasons (and as demonstrated by the Victorian cases), civil enforcement proceedings in SAT would readily be able to result in creative and detailed planning solutions to enforcement cases which are not available in civil injunction or criminal prosecution proceedings.

Finally, although external enforcement of SAT decisions is available through filing in the Supreme Court under s 86 of the SAT Act, criminal prosecution under s 95 of the SAT Act and even possible contempt proceedings following a report by the President to the Supreme Court under s 100 of the SAT Act, external enforcement is unlikely to be required, both because most enforcement proceedings are likely to be resolved by the parties fashioning their own solutions, with the assistance of SAT members, through facilitative dispute resolution, and because even those matters that require adjudication would be resolved by an independent specialist tribunal after affording natural justice to the parties.

Australian Environmental Law Digest 20 www.nela.org.au

Climate change liability: a world first Originally published on 2 September 2015

Lauren Pinkerton, Madeline Wardleworth and Chris Wheeler6

What is it?

In a world first, the Hague District Court (Court) has ordered the Netherlands government to take increased action to reduce greenhouse gas (GHG) emissions by reducing Dutch GHG emissions by 25% by 2020 (as compared to 1990 levels). The court considered whether there was a breach of duty of care for taking insufficient measures to prevent dangerous climate change? The answer from the Court was affirmative.

The action was brought by the Urgenda Foundation as a class action representing 886 individual co-plaintiffs. Urgenda – a contraction of Urgent Agenda – supports the transition to a sustainable society and asserted that the Dutch state should be held responsible for its role in causing dangerous climate change.

The Court:

• Followed the guidelines of the Intergovernmental Panel on Climate Change (IPCC) that developed countries should reduce their GHG emissions by 25-40% by 2020 (compared to 1990 levels); and

• Found that the government has a duty of care to the public to mitigate damage caused by climate change because of the severity of the consequences in failing to act and the degree of risk of hazardous climate change occurring; and

• Accepted the position that there is a class of anthropogenic GHG emissions, thus there was no dispute that human activity contributes to and causes a degree of climate change.

The finding marks the first time a court has ordered a state to limit GHG emissions without specifically relying on statute. The decision has potential for a significant ripple effect for establishing climate liability around the world and in Australia is broad.

Does the decision represent a ‘sea change’?7

After the decision was announced, Urgenda was inundated with requests for assistance in commencing like litigations around the globe. Urgenda has indicated through its lead attorney Roger Cox that their team is working with colleagues in Brazil, Austria, England, Ireland and Australia.

In Belgium, a similar non-government organisation (representing over 1,000 plaintiffs) filed a similar action against federal and particular regional governments. The Belgian challenge centres on ‘inadequate policies concerning climate change.’ A similar proceeding is afoot in Norway, and Greenpeace indicates that it aims to commence a similar action in the Philippines.

According to Urgenda’s director and co-founder Marjan Minnesma, the likelihood of many other European states bringing similar actions is low due to the majority of EU governments already complying with the IPCC guidelines for the reduction of GHG emissions.

What might it mean for Australia?

The legal landscapes of the Netherlands and Australia are different. The Netherlands has a civil legal system and a constitutional requirement to keep the country habitable and to protect and improve the environment. Australia has a common law legal system and any case must be founded first on an appropriate cause of action. There is no similar express constitutional requirement.

6 Partner, King & Wood Mallesons. Click here to contact Chris. 7 As suggested by Columbia University’s Professor Michael Gerrard, Director of the Sabin Centre for Climate Change law.

http://www.kwm.com/en/au/knowledge/insights/climate-change-liability-world-first-20150902




Despite this, the Dutch decision strikes a chord with current public debate in Australia. Urgenda has indicated that it is sharing its expertise with Australian counterparts and is presenting its research to the Environmental Defenders’ Office (EDO) in Queensland. Both the Queensland EDO and the New South Wales EDO have revealed that they are setting up a fund with a view to working collaboratively to explore the possibilities of bringing climate change litigation on home soil. It remains to be seen whether there is scope to achieve this under existing laws, constitutional argument or whether there may be an attempt to change existing laws to enable action.

The Australian Government position

The Dutch decision suggested a federal government would need to consider emissions trading, relevant tax measures, or introduce renewable energy sources. The Australian government’s push to retain and expand coal based energy stands in contrast to the principles of the Dutch Court view that the government (in this case the Netherland state) is obliged to reduce GHG emissions and work towards sustainable living utilising renewable energy sources.

Given the government’s recent stance against the aesthetic of wind farming, it will be interesting to observe whether this momentum around climate change liability and renewables will result in further development of and Commonwealth investment in solar and wind power across Australia or an adjustment to Australia’s targets for the reduction of GHG emissions.

The statistics

Netherlands Australia

GHG emissions reduction target (pre-case): 17% by 2020 against 1990 levels

Current GHG emissions reduction target: 5% by 2020 against 2000 levels

% of CO2 emissions: 0.5 % of CO2 emissions: 1.5

Whilst Australia’s current target is 5%, the Climate Change Authority has recommended in its final report dated 2 July 2015 that at the climate conference in Paris in December, Australia commits to a target of:

• 30% below 2000 levels by 2025; and

• 40-60% below 2000 levels by 2030.

Possible impact if an Australian court reaches the same decision

If climate change liability is established in Australia, or if an Australian court finds that anthropogenic climate change is a fact, the impact is likely to resonate at various levels, including local, state and territory and Commonwealth government. To use just one example, decisions by councils to approve development applications within coastal zones will need to be carefully considered in light of rising sea levels.

Insurers will also be concerned about their exposure and possible risk minimisation strategies, including possible legal actions.

As recently as 21 July 2015, the Queensland government has decided to redraw coastal zone boundaries in consideration of rising sea levels, which will increase the number of developments around coastlines that will require assessment under the local Sustainable Planning Act 2009, impacting on the workload and potential long term planning decisions of local governments.

Mining and resources

The Dutch decision may lend additional credence to raise objections to applications for mining leases on environmental and planning grounds. The decision may also inspire a spike in third party objections.


Legislation across Australian jurisdictions provides varying mechanisms for third parties to challenge mining and environmental approvals. Several jurisdictions provide third parties with objection avenues. Some third party objections are grounded in environmentalist groups’ climate change concerns. The Queensland EDO objection to Adani’s Carmichael Mine is a key example. In that six-week hearing, the EDO argued that Adani’s proposed Galilee Basin mine is an unacceptable danger to climate change. The recommendation of the Land Court has not yet been handed down.

Where to from here?

The Court’s decision does create fertile ground for creative minds seeking a cause of action to sue the Commonwealth, other governments and authorities for inaction on climate change. Areas of particular focus would be mining, resources and agriculture sectors - their regulatory and approval environments. Not to mention the politics and broader policy considerations across the country.

Japan’s whaling gambit shows it’s time to strengthen the rule of science in law Originally published in The Conversation on 21 October 2015

Brendan Gogarty8

Earlier this week it was revealed that Japan has prevented the International Court of Justice from hearing cases about its controversial whaling program.

The declaration follows the highly publicised 2014 ruling by the court that Japan’s previous scientific whaling program (JARPA II) was “not for the purposes of scientific research”, making it contrary to international law.9 Japan concluded JARPA II and announced a new program, NEWREP-A10 which proposes to kill up to around 4,000 whales over 12 years, beginning this summer.

Japan’s declaration effectively stops the International Court of Justice reviewing or ruling on the legality of NEWREP-A in the future, unless Japan consents to a case being brought against it (hint: that’s incredibly unlikely).

Is Japan’s action legal?

Generally the International Court of Justice can only exercise its power if countries agree to its jurisdiction.11 They may do this within a treaty, or agree to the court’s power generally, subject to specific limitations.

Japan’s declaration12 is in the latter category, accepting broad jurisdiction with the exception of “any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea”. This is clearly tailored to the provisions of the International Convention for the Regulation of Whaling, but also excludes review by the court of its other fishing programs.

Japan’s declaration is therefore permitted by international law. It is also something other nations have done. In fact, Australia made a similar declaration in 2002, limiting the jurisdiction of the court over resource

8 Law Lecturer, University of Tasmania. Click here to see Brendan’s profile. 9 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014, p. 226. See Press, T. “Whaling in the Antarctic: Japan’s Scientific Program Illegal” in The Conversation, 1 April 2014. https://theconversation.com/whaling-in-the-antarctic-japans-scientific-program-illegal-23824 10 For an outline of the program, go to http://www.jfa.maff.go.jp/j/whale/pdf/outline-of-newrep-a.pdf 11 The Statute of the International Court of Justice, Chapter II 12 For the text of the declaration, go to https://treaties.un.org/Pages/Declarations.aspx?index=Japan&chapter=1&treaty=311

https://theconversation.com/japans-whaling-gambit-shows-its-time-to-strengthen-the-rule-of-science-in-law-49488

https://theconversation.com/profiles/brendan-gogarty-146584

http://www.smh.com.au/federal-politics/political-news/japan-rejects-international-court-jurisidiction-over-whaling-20151018-gkc7rm.html

https://theconversation.com/japans-new-whaling-program-is-a-small-win-for-whales-but-34420

http://www.icj-cij.org/documents/?p1=4&p2=2%23CHAPTER_II

https://treaties.un.org/Pages/Declarations.aspx?index=Japan&chapter=1&treaty=311

https://iwc.int/convention

https://iwc.int/convention

https://theconversation.com/profiles/brendan-gogarty-146584

https://treaties.un.org/Pages/Declarations.aspx?index=Japan&chapter=1&treaty=311


disputes.13 This was done to block a potential court challenge to exploitation of oil and gas reserves by Australian companies in contested areas of the Timor Sea.14

The International Convention of the Regulation of Whaling regulates all forms of whaling and since 1982 has imposed a moratorium on commercial whaling. The exception is Article VIII which allows killing whales “for the purposes of scientific research” and which was the subject of the previous legal challenge against JARPA II in the International Court of Justice.

Japan’s declaration doesn’t affect previous rulings. However the court’s JARPA II ruling specifically avoided addressing questions of “scientific merit or importance” about whaling.15 Rather the court restricted its decision specifically to Japan’s justification for JARPA II, providing limited guidance on how to demarcate between legitimate and illegitimate scientific claims in international law in the future.

The limited ruling, combined with Japan’s limitation on jurisdiction, means we are unlikely to be able to say whether, or when, killing whales in the name of science is truly legal or not.

Weak law, weak science

Japan’s actions (and indeed Australia’s) points to a wider problem in how international law manages the global commons - resources and regions outside of national jurisdiction, such as the open ocean, the deep sea floor, and Antarctica.

Global treaties have historically assumed that science is a matter of common interest (rather than individual, state interest) and therefore not the source of potential legal disputes. There has been an assumption that the achievement of that common interest will be promoted in a more open, and less prescribed, governance framework. Treaty makers have historically treated science as a discipline which relies on disagreement and self-reform to advance, and hence there has been caution about drafting laws which might interfere with it, or limit its advancement.

This means commons treaties tended towards broad, non-prescriptive definitions of scientific research, leaving states to interpret and apply themselves as science grew and advanced, without interference from other bodies or authorities. While that approach may have been historically justified it is increasingly showing signs of strain.

Whaling is not the only scientific disagreement in contemporary international affairs. The near intractable disagreements about state obligations under the United Nations Framework Convention on Climate Change (UNFCCC) are a prime example of that.

Like the Whaling Convention, the UNFCCC is based around broadly defined scientific terminology which states are left to interpret and apply internally to themselves. Like the Whaling Convention, the UNFCCC contains no compulsory arbitration provisions.

Of the three states which produce more than half of the world’s carbon emissions (China, the United States and India), only India accepts the compulsory jurisdiction of the International Court of Justice at all, but does so in a way that would prevent the court from reviewing its obligations under a climate change convention.16 This has effectively stymied attempts by small island states facing disastrous sea level rise to create certainty about the relationship between science and state obligations under that convention.

Subjecting science to the rule of law

While it is true that Japan may be exploiting an apparent loophole so are many states, including Australia. These matters have much further-reaching consequences than just whaling.

13 Declaration made 22 March 2002, https://treaties.un.org/Pages/Declarations.aspx?index=Australia&chapter=1&treaty=311 14 See Smith, M. 2011. “Australian Claims to the Timor Sea’s Petroleum Resources: Clever, Cunning, Or Criminal?”. Monash University Law Review. Available at http://www.austlii.edu.au/au/journals/MonashULawRw/2011/28.pdf 15 See Judgment at n9, paragraph 88. 16 See https://treaties.un.org/Pages/Declarations.aspx?index=India&chapter=1&treaty=311

https://treaties.un.org/Pages/Declarations.aspx?index=Australia&chapter=1&treaty=311

http://www.austlii.edu.au/au/journals/MonashULawRw/2011/28.pdf

https://treaties.un.org/Pages/Declarations.aspx?index=India&chapter=1&treaty=311


The problem Japan’s declaration highlights is not one of law, but one of philosophy; an arguably redundant philosophy which views science as something beyond state self-interest and outside the core competency of international courts. Concerningly, this was a view reflected by the International Court of Justice in the whaling case.17

Yet that view is not necessarily supported by contemporary scientific or legal practice. Journals use peer review to evaluate the scientific veracity of claims. Similarly, the World Trade Organisation (along with domestic courts) has a legal framework to distinguish the better of two or more competing scientific claims.

Unlike most global commons regimes, the WTO operates on the assumption that scientific claims might be used to undermine the free-trade purposes of the regime and be the source of interstate conflict. Hence it sets out rules to evaluate competing scientific claims, and mandates resolution of scientific disputes by an external body in a manner which cannot be avoided by declaration.

CHMPs and significant ground disturbance: the challenges continue Originally published on 21 October 2015

Darren Wong18

A recent Tribunal decision has highlighted the complexities associated with deciding whether significant ground disturbance has occurred, and considers the implications of when direct evidence is led regarding significant ground disturbance.

The decision in Platinum King Investments Pty Ltd v Manningham CC (Corrected) (Includes Summary) (Red Dot)[2015] VCAT 1484 (Platinum King Investments) serves as a caution to councils and permit applicants against too readily concluding that a cultural heritage management plan (CHMP) is not required.

The Tribunal considered the decision in Azzure Investment Group Pty Ltd v Mornington Peninsula SC (includes Summary) (Red Dot) [2009] VCAT 1600 (Azzure), and determined that the concept of a ‘material part’ of a site adopted by the Tribunal in Azzure did not apply because there was direct evidence disclosing that significant ground disturbance had not occurred.

Background

Manningham City Council (Council) initially considered that the land had been subject to significant ground disturbance after applying the contextual approach. Council relied on the urban context of the subject land and the previous industrial and residential uses, building work, provision of services and demolition works that had been undertaken on the land.

At a practice day hearing, the Tribunal did not accept the position of Council and the permit applicant that the land had been subject to significant ground disturbance. On its own initiative, the Tribunal listed the matter for a preliminary hearing.

Prior to the preliminary hearing, the permit applicant filed expert evidence detailing the results of a soil profile survey which involved digging a number of bore holes. The evidence concluded that about 3020 square metres of the land had been subject to significant ground disturbance but an area of about 212 square metres had not been subject to significant ground disturbance. More specifically, about 105 square metres had not been subject to any significant disturbance, and about 107 square metres had been subject

17 See Gogarty, B and P. Lawrence. "The ICJ Whaling Case: science, transparency and the rule of law" (2014/2015) 23(2) Journal of Law, Information and Science 134 18 Senior Associate, Maddocks – Planning. For more information regarding this case, contact Darren.

https://www.maddocks.com.au/reading-room/chmps-significant-ground-disturbance-challenges-continue/



to disturbance, but the cause of that disturbance could not be identified which meant that it had not been subject to significant ground disturbance.

After considering this evidence, Council revised the earlier expressed view and argued that part of the land had not been subject to significant ground disturbance.

The arguments

The permit applicant argued that these two smaller areas should not be regarded as a ‘material part’ of the land having regard to the Tribunal’s approach in the Azzure case. When Deputy President Dwyer applied the contextual approach in Azzure, his assessment was based on contextual information about the development history of the land, as opposed to an assessment based on direct evidence about the level of disturbance. In this context, Deputy President Dwyer considered it was relevant to ask whether a part of a site which had not been subject to significant ground disturbance based on contextual information/evidence (as opposed to direct evidence) was a material part of the land. The permit applicant sought to rely on this reasoning and argued the two disputed areas could be disregarded because they were not a ‘material part’ of the land.

Council argued that the Tribunal applied the concept of ‘materiality’ in Azzure to fill in the evidentiary gaps that arose from the contextual approach and the concept cannot be used to counter direct evidence that significant ground disturbance had not in fact occurred.

The decision

The summary to the Platinum King Investments decision captures the essence of the decision. The Tribunal said:

The reasons and conclusions in Azzure deal with how a contextual approach might be applied to determining whether small areas of a lot, particularly in an urban context, might be assessed to resolve questions about significant ground disturbance in the absence of definitive evidence. It is also clear that the goal is to determine whether all of the activity area has or has not been subject to significant ground disturbance. It is in this very specific context that the Tribunal in Azzure expressed the view that what is needed to resolve this difficulty in the absence of such evidence is to read a reference to a part of the land in the [Aboriginal Heritage Regulations 2007] to mean ‘a material part of the land’.

The Applicant in this proceeding essentially sought to carry through the concept of ‘materiality’ into r.6 of the AH Regulations. When taking a purposeful approach to the [Aboriginal Heritage Act 2006] and Regulations, I have concluded that there is no such discretion and that this was not the intention of the concept when discussed in Azzure.

Although the Tribunal appears to have unilaterally dismissed the applicability of the ‘materiality’ concept when there is direct evidence, we suspect there remains some work for this concept to do, particularly if the direct evidence discloses that only a miniscule part of a site has not been subject to significant ground disturbance. We expect that further disputes will likely arise in this space. We will need to wait and see how the Tribunal will apply Azzure and Platinum King Investments in such circumstances.

Without specifically criticising the permit applicant, the Tribunal then made some general observations about the approach adopted by some permit applicants by saying:

It is becoming increasingly apparent to the Tribunal that the degree of effort and activity expended by some proponents and assessors, for whatever reasons, to pursue an exemption from preparing a CHMP could equally be directed into preparing a CHMP and so avoid delays and frustrations at the review stage.

…

Under the framework established under s.52 of the AH Act, proponents and assessors are afforded an opportunity early in the preparation of planning applications to assess and weigh up the relative strength of a case for claims about significant ground disturbance. Where there are elements of doubt, particularly about the strength of evidence to be relied upon, it may well be of lesser risk to project timelines and overall expenditure of effort to sponsoring a CHMP at first instance.


The Tribunal also recognised the technical expertise needed to assess the need for a CHMP and the challenges this presents to councils by observing:

The events leading up to this hearing also highlight a difficulty for responsible authorities, which is that they may not have the necessary expertise to assess and determine whether significant ground disturbance has occurred across an activity area. Indeed, it may well be a burden for councils that they cannot reasonably address.

From this view point, expression of frustrations about delays caused by reconsidering assessments of significant ground disturbance and the intention of the AH Act for timely resolution of these matters seemingly being thwarted have some validity. This, I think, is a matter that warrants further attention from the Office of Aboriginal Affairs Victoria for clearer directions about the operation of the regulations and who ultimately is the appropriate authority to decide questions about significant ground disturbance.

We expect that many councils will be keen to see another body, other than the local council, deciding questions about significant ground disturbance and whether a CHMP is required.

Skirmish avoided, but for how long?

The permit applicant also questioned the correctness of Stanley Pastoral Pty Ltd v Indigo SC (includes Summary) (Red Dot) [2015] VCAT 36 (Stanley Pastoral). The recent decision of Stanley Pastoral stands for the proposition that the Tribunal has no jurisdiction to accept a failure review under section 79 of the Planning and Environment Act 1987 in circumstances where the responsible authority has not subsequently made a decision and a CHMP is required but has not been prepared. In Stanley Pastoral, this led to that application for review to be struck out for a lack of jurisdiction. The permit application in Platinum King Investments was keen, for obvious reasons, to avoid a similar fate.

In Platinum King Investments, as Council had made a decision to refuse the permit application, even though it had not issued a notice of refusal, the Tribunal was prepared to amend the application for review from a failure application to a refusal application. This avoided the need for complex jurisdictional arguments to be advanced regarding the correctness of Stanley Pastoral. A potential Supreme Court challenge was avoided. We expect this argument will be pursued down the track in other cases.

Update: Alpha coal judicial review Originally published on 10 September 2015

Sean Ryan19

On 4 September 2015, the Supreme Court delivered judgment in respect of two judicial review applications brought by EDO Queensland client, conservation group Coast and Country Association of Queensland (CCAQ): one against the decision of the Queensland Land Court and another against the decisions of the Ministers responsible for granting the Mining Lease (ML) and Environmental Authority (EA).20

Background

Hancock Coal Pty Ltd (Hancock) proposed the Alpha Coal Project in 2008, seeking approval for a 30 million tonne per annum thermal coal mine, 360km south-west of Mackay in the Galilee Basin. The mine is expected to draw down groundwater levels by up to 10 metres within a 5km radius of the mine.

In February 2013, CCAQ objected to the grant of the ML and EA for the project in the Queensland Land Court, due to the impacts of the project on groundwater, climate change and economics. Early on, the

19 Senior Solicitor, EDO Queensland 20 Coast and Country Association of Queensland Inc v Smith & Anor; Coast and Country Association of Queensland Inc v Minister for Environment and Heritage Protection & Ors [2015] QSC 260 (14/4249) Douglas J 04/09/2015

http://www.edoqld.org.au/news/case-update-alpha-coal-judicial-review/


Court rejected the attempt to file and read an affidavit in support of the assertion by Hancock that the proceedings were instituted to delay or obstruct.21 The Court stated that:

I believe that all parties, when they come before the Court at first instance, unless they already have a finding against them in another place (such as: that they are a vexatious litigant) should be seen as coming before the Court with clean hands. That is the presumption until proven otherwise, or until conduct suggests otherwise. 22

In April 2014, after hearing the full evidence in the matter, the Land Court found that “[g]iven the unsatisfactory nature of the evidence relating to groundwater, good reason has been shown for a refusal to grant the mining lease”.23 The Land Court ultimately recommended that the EA and ML be refused or subject to additional conditions in respect of groundwater.24 Acknowledging that the Land Court may not have had the power to make recommendations in the alternate, the Court made it clear that if it were to make a singular recommendation it would be for the refusal of the applications for the EA and ML.25

On the basis of the success in relation to ground water one of the landholder objectors sought and were awarded costs against Hancock.26

In relation to climate change the Land Court decision took significant steps forward in the recognition of climate change, finding that the emissions from the burning of the coal were legally relevant as part of the requirements to consider the public interest.27 The Land Court also found that the quantity of emissions from the project, representing 0.16% of global emissions, were ‘real and of concern’ and ‘cannot be dismissed as negligible’.28 However after finding the emissions from the burning of coal overseas to be legally relevant the Court came to the factual finding on the evidence that global emissions ‘will not fall if Alpha does not proceed as the coal will simply be sourced from somewhere else’.29

In August 2014, following the Land Court decision and recommendations, the Minister for the Environment decided to grant the EA, in part relying on the Minister for Mines to impose some of the conditions recommended by the Land Court.

CCAQ challenged some aspects of the Land Court’s decision, including whether the Land Court:

• can make alternative recommendations for both refusal and approval;

• was required to consider whether the project would result in a net benefit;

• recommendation was not sufficiently final as it required further assessment under the Water Act; and

• properly considered emissions from the burning of coal.

The CCAQ subsequently challenged the decision of the Environment Minister to grant the EA, relying on the Land Court recommendation, and the decision and/or conduct Mines Ministers provided some assurances regarding proposed conditions on the ML, upon which the Environment Minister relied.

Decision

The Supreme Court dismissed the applications for Judicial Review, finding that:

• the Land Court is entitled under the relevant statutes to recommend refusal with an alternate recommendation for approval with conditions;

• the Court would not read into the legislation a requirement that the project demonstrate a net benefit;

• the recommendations of the Land Courts are not final decisions and do not require finality; and 21 Hancock Coal Pty Ltd v Kelly & Ors [2013] QLC 9 22 Hancock Coal Pty Ltd v Kelly & Ors [2013] QLC 9 at [3]. 23 Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4) [2014] QLC at [399]. 24 Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4) [2014] QLC 25 Ibid at [426]. 26 Hancock Coal Pty Ltd v Cassoni (No. 5) [2014] QLC 33 27 Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4) [2014] QLC at [218]. 28 Ibid at [208]. 29 Ibid at [229]

http://pan.search.qld.gov.au/search/click.cgi?rank=1&collection=qld-gov&url=http%3A%2F%2Fwww.courts.qld.gov.au%2F__data%2Fassets%2Fpdf_file%2F0009%2F272349%2FMRA082-13-etc-4-12.pdf&index_url=http%3A%2F%2Fwww.courts.qld.gov.au%2F__data%2Fassets%2Fpdf_file%2F0009%2F272349%2FMRA082-13-etc-4-12.pdf&auth=CuSR2GZAw8l4diYGIyOfgw&search_referer=http%3A%2F%2Fwww.courts.qld.gov.au%2Fcourts%2Fland-court%2Ftips-for-searching%2Fsearch-decisions&query=CCAQ%20L%3ALandcourt%2520Decision&profile=djag&identifier=1445862625.84295


• the Land Court considered the emissions from the burning of coal as part of the consideration of the public interest but gave no weight to those emissions due to the factual finding that the emissions of the product coal would be substituted by another project elsewhere if this mine did not proceed.

The last point is a significant finding which clarifies for the first time in the Supreme Court that emissions from the burning of coal are relevant in the assessment of coal mines in Queensland – an issue that had been hotly debated until now. It is now clear that each coal mine may be required to argue on the facts whether the mine will in fact increase global emissions.

Some commentators have suggested that the law should be amended to prevent objections in relation to the emissions from the burning of coal to ensure the argument is not run again however it would be misguided to change the law in response to factual findings in one or two cases. Few of our criminal laws would be left standing if they were repealed on each finding of ‘not guilty’.

The Decision of the Supreme Court has been appealed to the Queensland Court of Appeal in respect of the findings in relation to climate change. The hearing is expected early next year.

Are "net benefit" and scope 3 emissions relevant in Land Court objections hearings? Originally published on 17 September 2015

Mark Geritz30 and Patrick Cranley

Summary

The Mineral Resources Act and Environmental Protection Act should be amended to make it clear that objections cannot be lodged on the grounds of scope 3 emissions or the "net benefit" test.

The Queensland Supreme Court has confirmed, among other things, that proponents for mining lease applications are not required to show their mine will create a "net benefit" to the community, and may not need to consider the potential impact of Scope 3 greenhouse gas emissions from their mine.

The case of Coast and Country Association of Queensland Inc v Smith & Anor; Coast and Country Association of Queensland Inc v Minister for Environment and Heritage Protection & Ors [2015] QSC 260 involved the hearing of two applications for judicial review of:

• the decision of the Land Court to recommend, in the first instance, the refusal of both of Hancock Coal Pty Ltd applications for a mining lease (ML) under the Mineral Resources Act 1989 (Qld) (MRA), and for an environmental authority (EA) under the Environmental Protection Act 1994 (Qld) (EP Act) for the Alpha Coal Mine, and in the alternative, that the applications be granted subject to conditions deferring the resolution of certain matters to a separate approvals process under the Water Act 2000 (Qld); and

• the decision of the EP Act Minister not to refuse but to grant an EA under, as it was then, section 225(1) of the EP Act for the Alpha Coal Mine, subject to certain conditions, and the decision or conduct of the MRA Minister by which he assured the EP Act Minister that a condition would be attached to the grant of a ML for the mine under the MRA requiring further assessment of groundwater impacts under the Water Act.

30 Partner, Clayton Utz. Click here to contact Mark.

http://www.claytonutz.com/publications/edition/17_september_2015/20150917/are_net_benefit_and_scope_3_emissions_relevant_in_ml_and_ea_land_court_objections_hearings.page




http://www.claytonutz.com/people/geritz_mark/home.page


Judicial review of Land Court recommendation

The Land Court recommendations were challenged by Coast and Country Association of Queensland Inc (CCAQ) on four grounds:

• it was not open to Member Smith to make alternative recommendations;

• Member Smith should have assessed whether approval of the mine created a net benefit for the local economy;

• the Land Court decision lacked finality; and

• Member Smith erred in his conclusions regarding the adverse impacts of greenhouse gas (GHG) emissions (scope 3 emissions) firstly on the basis that it was a relevant consideration and not considered, or in the alternative to the extent it was considered, Member Smith erred in concluding that the mine would have "no impact" on such emissions, because "the coal would simply be sourced from somewhere else".

In dismissing CCAQ's application, the Supreme Court made the following comments in relation to CCAQ's grounds of appeal.

Power to make alternative recommendations

CCAQ argued that the use of the word "or" in sections 269(2)(a) of the MRA (ie. a recommendation that the application for the ML be granted or rejected) and, as it was then, section 222(1)(a) and (b) of the EP Act (ie. the application for the EA be granted on basis of draft EA or granted on stated conditions different to the draft EA or the application be refused) meant the Land Court did not have the option of making alternative recommendations to either refuse or approve a proposed ML or EA.

In dismissing this ground, the Supreme Court agreed with the submissions of Hancock, being that the Land Court must make a recommendation after a hearing, and the range of recommendations must be drawn from those set out in section 269 of the MRA and, as it was then, section 222 of the EP Act, but the type or types of recommendations to be made is up to the Land Court to decide, which Justice Douglas stated should logically extend to the making of recommendations on alternative bases.

It was held that as the purpose of these provisions is for the Land Court to make recommendations, it was impractical to construe the provisions to limit the range of recommendations that the Land Court may make so strictly, and ultimately the alternative recommendations made by Member Smith were recommendations that could be made under the MRA and EP Act.

Net benefit test

In submitting the Land Court needed to be satisfied the mine would create a net benefit for the local community, CCAQ relied upon several cases31, [1] in conjunction with the statutory requirements, to support its position.

Essentially, CCAQ had argued in the Land Court that environmental and social impacts should be attributed some numerical cost with such cost to be deducted from any economic benefits associated with the project.

Hancock distinguished its position from each of the cases for various reasons, including that:

• some were decided under a different regime;

• the requirement was for the Land Court to be satisfied the circumstances warrant a recommendation having regard to the purposes for which the Crown should give a right to mine its minerals;

31 Those cases included Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473; Armstrong v Brown [2004] 2 Qd R 345; Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd (2007) 155 LGERA 322, 339-340 at [53]; and Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure (2013) 194 LEGRA 347 on appeal, Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 307 ALR 262.


• the requirement was not that there be a "net benefit" but rather that the Land Court is to consider all matters set out in the MRA and EP Act irrespective of whether an objection relates only to limited criteria; and

• the cases did not establish a requirement for a "net benefit" test.

In agreeing with Hancock, Justice Douglas did not find that a net benefit test was a statutory requirement under either the MRA or EP Act, and he was not prepared to add such a concept to the statutory considerations already imposed.

Although not mentioned in the Supreme Court decision, a practical difficulty with the argument run by CCAQ is that there is very little agreement amongst experts in this area as to how these environmental and social impacts should be costed.

Lacking finality

In quickly dismissing this ground of review, Justice Douglas stated that the decision of Member Smith to recommend grant subject to further statutory approvals under the Water Act does not have the effect of involving the decision maker in deferring matters for later decision by itself. Rather it recognises that if the ML and EA are decided to be granted, the issues relating to the use and supply of water will need to be addressed by the future statutory process under the Water Act before the mine can proceed. He stated that this is not a lack of finality in the recommendation, but a recognition of reality.

Scope 3 emissions

GHG emissions commonly fall into three categories. Scope 1 and Scope 2 GHG emissions relate respectively to the release of GHG emissions as a direct result of an activity of a facility, and the release of GHG emissions as a result of activities that generate electricity, heating, cooling or steam that is consumed by that facility, but do not form part of the facility itself.

Scope 3 emissions are the "indirect" emissions, or emissions released as a consequence of the activities of a company, but from sources not owned or controlled by the company. For instance, extraction and production of purchased materials, transportation of purchased fuels and use of sold products and services (including the burning of coal).32

The Supreme Court agreed that GHG emissions are a relevant issue for both the EA and the ML. Under the EP Act, GHG emissions are a relevant issue through the requirement to consider the "standard criteria" under, as it was then, section 223(c), including the principles of ecologically sustainable development, the character, resilience and values of the receiving environment, submissions made by the applicant and submitters and the public interest.

Under the MRA, it was held that scope 1 and 2 emissions fall to be considered under ss269(4)(i) and (j) which both refer to the operations to be carried on under the authority of the proposed ML, but scope 3 emissions fall to be considered under s269(4)(k), being the requirement for the Land Court to consider the potential impact to the public right and interest.

The Court ruled this view is supported by the decision of Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-Op Ltd (2012) 33 QLCR 79 where President MacDonald took the view that the transportation and use of coal did not fall within the "operations" carried out under the ML referred to in section 269(4)(j) (and necessarily, section 269(4)(i)).

In concluding that the scope 3 emissions from the Alpha Coal Mine should not be taken into account as impacting the public right and interest, Member Smith's reasoning was that the facts showed there would not be any reduction of GHG emissions if the Alpha Coal Mine was refused, and in fact, depending on the replacement coal sourced, such replacement coal could increase the level of emissions.

This position was supported by Justice Douglas, who held that "although the objective of the [EP Act] is environmental protection in the context of ecologically sustainable development, it does not require the

32 Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 12 at [204]


learned member to ignore what is likely to happen elsewhere in the world, even if this particular mine does not go ahead".

Ministers' decisions and conduct In dismissing this second application, Justice Douglas considered the main issue to be whether the conduct of either Minister lacked finality. He stated that the aspect left undecided was something which neither Minister had power to grant, namely a water licence. The EP Act Minister had decided the application for the EA and the MRA Minister had decided that if it were to grant the ML, it would be conditioned to require a water licence to be obtained. As such, the conduct or decisions of both Ministers would satisfy the finality principle.

Where to from here? Given that the same arguments relating to scope 3 emissions have now been run in a number of Land Court matters and now the Supreme Court with the same result, it would seem appropriate for amendments to be made to the MRA and EP Act to make it clear that objections cannot be lodged on this ground.

Similarly, to avoid repetition of argument and associated significant time delays, the same position could be taken on the "net benefit" test. This would also support the desire of industry as recently supported by Government to ensure that Land Court processes can be completed within a more appropriate timeframe and that significant time and costs are not incurred by experts arguing the same position as has been already argued and decided by the Courts particularly given that these issues are essentially matters of government policy.

NELA NATIONAL CONFERENCE 2015 PLANNING, CLIMATE & ENVIRONMENTAL LAW: WHERE TO FROM HERE?

13 NOVEMBER 2015, PULLMAN SYDNEY, HYDE PARK Join us for a not-to-be-missed opportunity to discuss the present and future challenges facing environmental law with passionate local and international experts, including judges, politicians, lawyers, consultants and economists. Topics include:

CLIMATE LAW AFTER PARIS: SETTING A NEW AGENDA FOR AUSTRALIA

Featuring Professor Michael B Gerrard, John Connor, Martijn Wilder and Ketan Joshi.

LEAVING IT TO MARKET FORCES TO CONSERVE NATURAL CAPITAL

Featuring Peter Cosier and Dr Cameron Holley.

STRIKING THE RIGHT BALANCE IN PLANNING

Commencing with an address by the Hon. Minister Rob Stokes MP, and featuring presentations from Tamara Brezzi, Stuart Moseley, Malcolm Snow and Rachel Walmsley.

THE INTERSECTION OF LAND USE, PLANNING, ENVIRONMENTAL PROTECTION AND NATURE CONSERVATION

Featuring Philip Clay SC, Professor Jan McDonald, Martin Fallding and Alan Key.

ENVIRONMENTAL LAW IN AUSTALIA: WHERE ARE WE NOW?

Moderated by The Hon. Justice Rachel Pepper, and featuring Jeff Smith, Claire Smith and Dr Hanna Jaireth.

For the full programme and to register, go to http://www.nela.org.au/NELA/Documents/NELA_2015_national_conference.pdf

http://www.nela.org.au/NELA/Documents/NELA_2015_national_conference.pdf


The road toward sustainable energy in Western Australia: what legal and policy settings could make the South West Interconnected System renewable? Original submission to NELA Essay Competition 2014, “Are we selling ourselves short?”

Sean Helbig*

1. Introduction

Energy, in all its forms, underpins our economy and standard of living. It is the combining factor and metaphorical mode of transport for all activities that make our societies what they are. Because energy is the cornerstone of our way of life, the utmost attention and strategizing must be applied to the way we generate, distribute and use energy over time.

The South West Interconnected System (SWIS) is unique in the Australian context. Due to the geographical divide, it is disconnected from the national electricity grid. This distance means it is highly unlikely that the SWIS and the national grid will ever be connected33. The SWIS has its own legislative state jurisdiction and has independent regulations34. These factors allow for the opportunity for progressive reform in the SWIS.

This discussion asks the question: is our current planning for the SWIS selling us short in terms of future electricity generation methods and achievement of social goals?

In addressing this, it will be argued that developing a long sighted, fully sustainable energy system based on renewable energy generation is the socially responsible, and most low risk, outcome for the SWIS. Furthermore, achieving this keeps Western Australia in line, if not ahead, of international norms. The legal and policy reform pathways, in conjunction with existing and potential regulatory and governance issues, will be analyzed to outline reform pathways that could be used to achieve this goal.

This discourse will focus primarily on legal and policy reform. Whilst the overlap is often indiscernible, market reform will be considered only by consequence. The analysis is built upon four assumptions:

1. Political leadership and commitment to sustainability35 is forthcoming;

2. A decision to change the law is apparent;

3. The Government has a strategic and progressive economic disposition;

4. Community support for reform exists.

My focus will be on the role of the Western Australian State Government and the challenges of electricity generation and distribution whilst energy efficiency and demand side management will be briefly addressed.

* Winner of NELA Essay Competition 2014, Masters of Environmental Law student, Environmental Services Contractor. To contact Sean, email [email protected] 33 Delphine de Bablinea, Tania Urmeea & Jamie Ally, ‘Prospects and problems of increasing electricity production from mid-size renewable energy generation on the South-West Interconnected System (SWIS) in WA’ (2012) Procedia Engineering 49, 57 – 65, 26 34 Ibid, 26 35 Alleen McHarg, ‘Regulating for sustainable electricity market outcomes in Britain: Asking the law question’ (2013), 30 Environmental Planning and Law Journal, 289, 292

http://www.nortonrosefulbright.com/people/24704/elisa-de-wit



2. Characteristics of the SWIS

The SWIS network supplies electricity to around 1.1 million customers over an area of 261,000km2. It is bordered by Kalbarri in the north, Kalgoorlie in the east, and Albany in the south (Figure 236). This network was designed to transport electricity from centralized generation facilities to consumers across a broad network.

The SWIS market is referred to as the Wholesale Electricity Market (WEM)37.

In 2006 the energy sector in Western Australian underwent a historic reform where “the state owned vertically integrated electricity utility …disaggregated into four entirely separate corporate business entities’38. The resulting SWIS businesses are:

• Western Power - ownership and operation of the SWIS which connects generators to consumers;

• Synergy - retailing; and

• Verve Energy - ownership and operation of power stations connected to the SWIS39.

36 Australian Energy Regulator, State of the energy market 2007 - Chapter 7 Beyond the national electricity market, 26 July 2007, State of the energy market 2007 <https://www.aer.gov.au/sites/default/files/Chapter%207%20Beyond%20the%20national%20electricity%20market%202007.pdf> 37 Delphine de Bablinea, Tania Urmeea & Jamie Ally, ‘Prospects and problems of increasing electricity production from mid-size renewable energy generation on the South-West Interconnected System (SWIS) in WA’ (2012) Procedia Engineering 49, 57 – 65. 38 Above n 27 39 Above n 27

Figure 1: Operation of the SWIS / WEM Taken from: Perth Energy, Market & Consumers, (2014) Perth Energy – Power to choose <http://www.perthenergy.com.au/index.php/electricity-market/market-and-consumers>


The SWIS is governed by the Office of Energy and the Department of Finance (Public Utilities Office) who support the State Government and the Minister for Energy40. The Western Australia Economic Regulation Authority (ERA) regulates the WEM and the Independent Market Operator (IMO) operates the WEM41.

Owing to high summer temperatures, today the retail market dictates that the SWIS is a summer peaking system. In 2013-14, the summer peak was 3,702 MW, while the winter peak was 3,069 MW42. The IMO 2014 review states that

peak demand is forecast to increase at an average annual rate of 2.1 per cent between 2014-15 and 2023-24 …sent out energy is forecast to grow at an average annual rate of 1.8 per cent between 2014-15 and 2023-24 … [and] no new capacity will be required in the SWIS until 2023-2443

This is because current total generation capacity was 6087MW in 2013-1444.

As shown in Figure 3, in 2011, renewable energy made up 2% of total electricity generation. ‘Electricity production from renewable energy for the SWIS is fairly small and not constant, and the use of coal and gas dominates the rest of the electricity generation’45 (see Figure 4). Some coal, but primarily gas electricity generation, accounts for almost all of the remaining 98% of supply. If gas truly is the transition fuel from fossil fuels to renewables46, then it would seem that WA is well on its way down this path.

However, it would appear that in the SWIS, this phenomenon is a function of circumstance and resource convenience, rather than a transitional low emissions strategy.

40 Honorable Dr Mike D. Nahan 41 Australian Government, Department of Industry, Energy White Paper: Green Paper 2014 – to inform preparation of a white paper, (September 2014), 41 42 Independent Market Operator, SWIS Electricity Demand Outlook, (June 2014), 17 43 Ibid 3 44 Perth Energy, Market & Consumers, (2014) Perth Energy – Power to choose <http://www.perthenergy.com.au/index.php/electricity-market/market-and-consumers> 45 Above n 27, 58. The current breakup of electricity generation between renewable and non-renewable sources within the SWIS can be seen in Figure 3. 46 R.E.H. Sims, R.N. Schock, A. Adegbululgbe, J. Fenhann, I. Konstantinaviciute, W. Moomaw, H.B. Nimir, B. Schlamadinger, J. Torres-Martínez, C. Turner, Y. Uchiyama, S.J.V. Vuori, N. Wamukonya, X. Zhang, 2007: Energy supply. In Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [B. Metz, O.R. Davidson, P.R. Bosch, R. Dave, L.A. Meyer (eds)], Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA <https://www.ipcc.ch/pdf/assessment-report/ar4/wg3/ar4-wg3-chapter4.pdf>

Figure 2: Electricity infrastructure map—Western Australia Taken from: Australian Energy Regulator, State of the energy market 2007 - Chapter 7 Beyond the national electricity market.


Figure 3: Existing Renewable capacity of the SWIS Taken from: Independent Market Operator, SWIS Electricity Demand Outlook, (June 2014), 46

Figure 4: Renewable and non-renewable electricity generation, 2007 to 2013 Taken from: Independent Market Operator, SWIS Electricity Demand Outlook, (June 2014), 47


3. Motivation for Reform: Climate Change

“It is the duty of the law to keep pace with changing times and scientific developments”47. Climate change is the long term, integrate science of the state of our earth. It is the science of change, the science of flux, of micro and macro processes and transcends fourteen orders of magnitude over space and time48. Most importantly for the law, is that over the last three and a half decades, the realization of anthropocentric influences on the natural climate system has meant climate change has become the science of the longevity of the global community and has caused households, nations and the world, to question our place within it.

Climate models allow scientists to predict future scenarios depending on various emissions and land use pathways. Based on current levels of information, the most likely climate scenario for the South Western Region regarding temperature change to the year 2050 is a 1–2 degree rise in average summer temperatures and 1–1.5 degree rise in annual temperature (Figure 5)49.

But this data begs the question, why should we take note of climate data and act to reform our energy sector? Australia's per capita CO2 emissions are nearly twice the OECD average and more than four times the world average.50 Electricity generation is the largest source of these emissions. A view to protect the status quo would go on to note that “Australia generates about 1.5% of global greenhouse gas emissions”51. But, from a state perspective, energy production accounted for 75.7% of total emissions52 in Western Australia in 2009. These statistics still do not necessitate reform in themselves, unless the negative externalities of GHG emissions are accounted for.

The simple motivation for this discussion permeates from historical and current events in the WA political cycle. Much of the policy platform for ‘Opportunities for Renewable Energy Generators’ to enter the Western Australian market were as “a result of national greenhouse policy drivers, including the national renewable energy target and the introduction of carbon pricing”53. In the years since these state policies were developed, the national carbon pricing legislation has been repealed54 and the national renewable energy target has been down-graded. In addition, the themes, strategies and plans of the Energy 2031 Directions Paper55 (WA) are currently under review, with Phase 2 designed to realise the reform options.56

47 Adrian Bradbrook ‘NUISANCE AND THE RIGHT OF SOLAR ACCESS’ Western Australian Law Review, 148 - 186 48 Gavin Schimdt, ‘The emergent patterns of climate change’ (Speech filmed at TED2014, March 2014) https://www.ted.com/talks/gavin_schmidt_the_emergent_patterns_of_climate_change#t-62382 49 Taken from: Australian Government, Western Australia Temperature Change 2050 50th Percentile, (2014) CSIRO; Bureau of Meteorology; Department of Climate Change and Energy Efficiency, <http://www.climatechangeinaustralia.gov.au/watemp20.php> 50 Carbon Neutral, Australia's Greenhouse Gas Emissions, (no date), Carbon Neutral <http://www.carbonneutral.com.au/climate-change/australian-emissions.html> 51 Ibid 52 Australian Bureau of Statistics, 1367.0 - State and Territory Statistical Indicators, 2012 – Carbon Emissions, (27/01/2012) <http://www.abs.gov.au/ausstats/[email protected]/Lookup/by%20Subject/1367.0~2012~Main%20Features~Carbon%20Emissions~6.39> 53 Government of Western Australia, Office of Energy Renewable Energy Handbook 2010 (September 2010) 18 54 Emma Griffiths, ‘Carbon tax scrapped: PM Tony Abbott sees key election promise fulfilled after Senate votes for repeal’, ABC News Online, 17 Jul 2014, 10:18pm <http://www.abc.net.au/news/2014-07-17/carbon-tax-repealed-by-senate/5604246> 55 Government of Western Australia, Office of Energy, Energy2031 Strategic Energy Initiative: Directions Paper - A smarter energy future for Western Australians (March 2011) 56 Department of Finance, Electricity Market Review - Phase 2, Government of Western Australia (15 October 2015), Government of Western Australia < http://www.finance.wa.gov.au/cms/Public_Utilities_Office/Electricity_Market_Review/Electricity_Market_Review_-_Phase_2.aspx>

Figure 5: Western Australia Temperature Change 2050 50th Percentile (Modified from original)

https://www.ted.com/talks/gavin_schmidt_the_emergent_patterns_of_climate_change%23t-62382

http://www.carbonneutral.com.au/climate-change/australian-emissions.html

http://www.carbonneutral.com.au/climate-change/australian-emissions.html


When considered together, these events indicate that the goals and pathways of our energy sector in relation to sustainability and renewable energy are in need of deliberation.

4. What Does Sustainable Energy Mean?

Sustainability can be discussed in a range of dimensions, however in its most fundamental state it refers to maintaining “the conditions under which humans and nature can exist in productive harmony, that permit fulfilling the social, economic and other requirements of present and future generations”57. A sustainable energy future in Australia would “see a shift in focus to meeting energy service needs (rather increased energy consumption)”58.

‘Energy’ can take a number of forms: kinetic, thermal, potential, electrical, chemical, mass and electromagnetic. By definition, energy is the capacity to do work. ‘Work’ is defined as a force applied which creates movement. Most simply, energy is power over a given timeframe59.

‘Sustainable Energy’, therefore, is a form of energy where power exerted over time, exists in productive harmony with humans and nature. The forms of energy which encapsulate the requirements for sustainability are renewable energy sources. These are “resources that can be replenished at a rate equal to or greater than the rate of depletion”60.

5. Toward a Sustainable SWIS: The Western Australian Government and Energy Reform

Climate change mitigation creates the context for this energy system reform discussion. Like any public policy, a range of competing factors are at work. Sustainable energy in WA would entail a system entirely powered by low emission, renewable energy generation sources - but this tells us little about how to achieve such a system. Pears stated:

[W]hen we imagine Australia’s energy future, we need to reflect upon the activities and services that will be needed or desired. These, combined with the technologies available, will determine the requirements for energy’61.

Moreover, energy service requirements will be linked to population trends and the mix of types and the level of economic activity62.

To discuss this issue, a structured approach must be adopted. Dovers63 provides a methodology which delineates Problem Framing from Policy Framing. Problem framing contains the elements of: Debating social goals; Monitoring topicality; Monitoring human/natural systems; Identifying problematic change; Identifying proximate and underlying causes; and Assessing uncertainty and risk. These elements will be used to critique the historic and current ideologies which have resulted in the current energy system. This information will then be utilized to frame policy.

The Honorable Peter Collier MLC, Minister for Energy (WA), in 2010 stated that “the community at large has a genuine desire to embrace low-emission and renewable energy sources”64. Whilst community desires are subject to change over time, the desire of a community to embrace a sustainable energy future is different to most social indicators. In this case, it demonstrates a more pervasive and less volatile community consensus because of the integrated and long-term nature of sustainable energy. The reflective and in-depth consideration required to arrive at a decision for the long-term future (and a wish to embrace renewable energy) is representative of a want for fundamental structural change.

57 United State Environmental Protection Authority, Basic Information: What is sustainability? (no date), United State Environmental Protection Authority <http://www.epa.gov/sustainability/basicinfo.htm> 58 Kinrade, Peter, ‘Toward a sustainable energy future in Australia’ (2007) Futures 39 230–252, Abstract 59 Christopher Dey, ‘Energy: a primer, with an Australian perspective’ (Lecture notes from Energy and Climate Law, delivered at Sydney University on Monday 29 September 2014). 60 Above n 35 61 Alan K. Pears ‘Imagining Australia’s energy services futures’ (2007) Futures 39 253–271, 254 62 Ibid, 254-256 63 Dovers, Stephen, Environment and Sustainability Policy: Creation, Implementation, Evaluation. (The Federation Press, 2005) 64 Above n 47, Foreword


Open recognition that sustainability is a higher order social goal and that it represents a generational-scale challenge, means that policy and institutional responses are contingent and need to evolve65. The Western Australian community arrived at this decision in 2010, thus, policy formulation about the nature of sustainability and the relationship between communities in the SWIS should now begin to move toward practical policy reform.

Insofar as Dovers’ policy framing elements are concerned, the steps of debating social goals and monitoring topicality are addressed by this social consensus. Furthermore, data gathered from the monitoring of natural systems is now robust enough for reasonable conclusions about our region to be drawn regarding climate change.

The remaining ‘problem defining’ elements, are all underpinned by one factor: the assessment of uncertainty and risk. Indeed, “if there was little uncertainty attached to issues such as climate change … or basic human needs, they would not be issues”66. But, uncertainty is socially constructed, and must be navigated politically and through policy67.

The most accepted method for constructively managing uncertainty is the precautionary principle, which states: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures’68. This principle is applicable to uncertainty in all decision making scenarios, not simply those which have a scientific or environmental basis, and is the cornerstone of this discussion.

To frame a policy, the techniques of a Guiding Statement, Policy Statement and Measureable Goals are required69. In developing a pathway to sustainable energy it is important to define each of these element as they exist in the current policies.

The Western Australian State Planning Strategy 2050 (Strategy 2050) provides the high level, guiding principles which dictate the policy and planning landscape of Western Australia. The principles are as follows:

• Community: Enable diverse, affordable, accessible and safe communities;

• Economy: Facilitate trade, investment, innovation, employment and community betterment;

• Environment: Conserve the State’s natural assets through sustainable development;

• Infrastructure: Ensure infrastructure supports development;

• Regional Development: Build the competitive and collaborative advantages of the regions; and

• Governance: Build community confidence in development processes and practices70.

As a ‘consideration of reform’ in the Strategy 2050 document, climate change is described as one of the seven fundamental contextual elements. Strategy 2050 acknowledges the global, regional and localized nature of climate change and its impacts, whilst also making note of Western Australia’s ability to contribute in a mitigative capacity through our abundant renewable energy resources71.

Although climate change impacts are not an exclusive ultimatum of prosperity for developed countries, the Environment principle of Strategy 2050 is the only principle which is intrinsically linked to the remaining five principles. This is especially true of sustainable development, in that without a sustainable environmental interaction, the community, economy, infrastructure, regional development nor governance are optimal, or sustainable.

65 Above n 57 66 Above n 57, 81 67 Above n 57, 83 68 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I) / 31 ILM 874 (1992), Principle 15 69 Above n 57 70 Government of Western Australia, Western Australian Planning Commission, State Planning Strategy 2050 (June 2014), 22 71 Ibid 18


Strategy 2050 provides an Energy Policy Statement in the form of energy planning objectives: to enable secure, reliable, competitive and clean energy that meets the State’s growing demand72. These objectives of policy are echoed by the Energy2031 Strategic Energy Initiative Direction Paper73 (Energy2031). Although it remains the case that policy statements do not always reflect a full and apparent policy process, it is the most viable and visible communication mechanism74.

In essence, a key requirement of a policy statement is that it does not simply communicate the policy decision and direction, but it makes clear the basis upon which these policies have been decided as well as how they will be achieved75. The achievability of a policy statement requires the articulation of measureable goals.

Strategy 2050 addresses this with regard to ‘cleaner and renewable energy’ by stating that the outcome of energy production and consumption that minimises carbon emissions and maximizes affordability76 will be measured by the “intensity of greenhouse emissions from energy production”77 and the “renewable energy contribution to total delivered electricity supplies”78. Clearly, the measurability of this policy outcome not only lacks an empirical element, but provides no clarification of a baseline against which to be measured.

This measurable target stands in contrast to that of the South Australian Government who, as a result of a key recommendation by the Economic Development Board (2009) self-imposed a renewable energy target of 33 per cent79. Since then, the State has now set a 50 per cent target by 202580 and identified renewable energy as an important industry for South Australia’s economic future81.

The basis upon which the Western Australian policy direction has been decided is flawed. The government states that Commonwealth programs remain “the primary driver of renewable energy growth in Western Australia over the short to medium term”82. In 2010, low emissions electricity generation was expected to play an increasing role in the state’s electricity supply because of national greenhouse policy drivers83. However the recent repeal of national level legislation has no doubt changed this outlook.

Moreover, the basis for the policy decision is stooped in the forecast that demand for energy is expected to continue to grow84. Whilst this is historically correct, given the correlation between energy demand and population growth, recent trends in energy markets tell a different story.

Data from the Bureau of Resources and Energy Economics in 2014 has shown an unprecedented plateauing of Australian energy consumption from 2008-201385. This data was a ‘Key Fact’ in Strategy 2050 for Western Australia too, showing “While population growth will increase overall demand for electricity, there has been a 1.5% slowdown in the growth of electricity consumption …when compared with the historical average”86.

The government’s policy, if effectively implemented, further encourages decreased consumption via demand side management techniques in energy efficiency. Three of the seven aspirations of Strategy 2050 with regard to renewable energy are that:

• Energy efficiency improvements continue to be realized through … low emission technologies;

72 Above n 64, 75 73 Above n 40 74 Above n 57, 99 75 Above n 57, 99 76 Above n 64, 77 77 Above n 64, 77 78 Above n 64, 77 79 Government of South Australia, About, (no date) Renewables SA < http://www.renewablessa.sa.gov.au/> 80 Parkinson, Giles & Vorrath, Sophie, ‘South Australia sets 50% renewable energy target for 2025’ RenewEconomy (online) 23 September 2014 < http://reneweconomy.com.au/2014/south-australia-sets-50-renewable-energy-target-for-2025-2020> 81 Government of South Australia, About, (no date) Renewables SA < http://www.renewablessa.sa.gov.au/> 82 Above n 64, 76 83 Above n 47, 18 84 Above n 50, 31 85 Bureau of Resources and Energy Economics, 2014 Australian Energy Update, July 2014, Australian Government <http://www.bree.gov.au/sites/bree.gov.au/files/files//publications/aes/2014-australian-energy-statistics.pdf> 86 Above n 64, 76


• Reduction of per capita household consumption through energy efficiency; and

• The improved availability and uptake of alternative fuels, combined with a shift towards the use of more efficient vehicle technologies and energy efficient modes of transport87.

Each of these demonstrate the government’s commitment to decreasing the demand side consumption of energy across a variety of energy mediums, using both technological and behavioral techniques.

Given these factors, demand as it currently stands, is afforded a significant buffer in the SWIS because of the substantial over capacity of the system. There is no need for an increase in capacity until 2023-2488 because of the current 2300MW over-capacity. The over-capacity is due to the ‘gold plating’ of infrastructure which has occurred over recent years89. Because of the government’s intent to increase energy efficiency, and the dampening effects this would have on demand, this capacity-buffer-forecast could further extend into the future with the plateauing energy consumption trend. Also, a significant proportion of infrastructure in the SWIS is ageing. Strategy2050 identifies the progressive replacement of this infrastructure with newer technologies as a key challenge90.

Surely, a more stable energy system in terms of demand is unlikely – this is the reality of elements which frame current energy policies. Thus, if a transition to a fully renewable system was to occur, now is the time. A decade, perhaps further, is afforded to the SWIS network, to plan and install the necessary policies and infrastructure. This process would also shift the market mechanisms to accommodate a new energy system which would align with the objectives of being secure, reliable, competitive and clean. The associated policy reform would require a number of techniques to facilitate the adjustment. As Newman points out ‘in order for planning to produce the best strategic and economic outcomes, it is essential that the planning regime reflect the realities of local conditions yet remain the driving force behind development regulation’91.

McHarg92 analysed the reform of the British electricity system and explains the five techniques, which, although not exhaustive, have been used to support the transition to regulating sustainable energy generation in Britain.

• the creation of new regulatory institutions (institutional reform);

• the imposition of new statutory duties;

• the creation of legally-binding targets;

• obligations to produce guidance, strategies and plans; and

• legal protections against regulatory change93.

Institutional reform involves the establishment of new, or reorganization of existing, institutions with new personnel and procedures, and wide-ranging responsibility for sectorial regulation94. Because of the disaggregation of the SWIS market in 2006, along with the independent nature of the IMO and ERA, influencing reform cannot be direct. The British system encountered similar issues because of the multi-layered nature of their energy policy.

A hybrid institutional reform system could be developed for the SWIS by using statutory duties. The ERA is an independent statutory authority established by the Parliament of Western Australia95. As such, their

87 Above n 64, 76 88 Above n 36, 3 89 Adam McHugh, ‘The sorry state of WA’s electricity market reform’, The Conversation, (Australia) 30 October 2012 <http://theconversation.com/the-sorry-state-of-was-electricity-market-reform-10340> 90 Above n 64, 76 91 Andrew Newman, ‘Creating the power for renewal: Evaluation of New South Wales’ renewable energy planning law changes and suggestions for further reform’ (2012) 29 EPLJ 498, 503. 92 Above n 29, 293 93 Above n 29, 293 94 Above n 86, 293 95 Economic Regulation Authority, Our Energy Related Work, (no date) Economic Regulation Authority <http://www.erawa.com.au/cproot/10814/2/20120925%20-%20D88550%20-%20Fact%20sheet%20-%20our%20energy%20related%20work.pdf>


responsibilities can be dictated to include new responsibilities for renewable energy programs. Similar to the approach taken in Britain with their regulator, Ofgem, these responsibilities would involve implementation rather than policy development, and are organized separately from its regulatory functions96.

By modifying statutory duties, the ERA can be required to give greater priority to sustainability objectives through regulation and achieve alignment with a medium term vision of renewable energy dominance.

The monitoring process of such regulatory reforms would bring together private and public industry under section 299(1) of the Corporations Act 2001 (Cth). This provision states that as a part of the Annual Directors' Report, Corporations must “give details of the entity's performance in relation to environmental regulation”97. Thereby, the best strategic and economic outcomes of institutional reform can reflect the localized historic regulatory regimes, and future regimes can be monitored accordingly.

Statutory duties which would facilitate this process would primarily be modified within the Economic Regulation Authority Act 2003 (WA). Under the Act, the scope of the ERA is broad. It is to undertake the inquiry, reporting and other functions it is given under the Act98. Furthermore, it must carry out any functions prescribed to it under the Energy Coordination Act 1994 (WA), the National Gas Access Act 2009 (WA) or functions it is given by or under any other enactment99.

This pathway would require a process of introducing amendments to existing legislation relating to the function of the ERA. Amendments would require it to perform the facilitation of integrating renewable energy into the market and the phasing out of fossil fuel generation sources.

Learning from the British experience, and to not contradict the existing functions of the ERA, a hierarchy of responsibilities must be developed. McHarg points out:

[t]he Energy Act 2004 (UK) first inserted a new tertiary duty requiring the regulator to carry out its functions in the manner “best calculated to contribute to the achievement of sustainable development”100.

However, it required amendment to clarify “that it included the interests of future as well as current consumers”101. The preferential use of renewable energy sources in the SWIS must be clear in the statute. Any amendments to statutory duties must explicitly state the intergenerational focus of the ERA’s responsibilities. Once the statutory duties are established, the malleability of the market will necessitate its adaption to the new regulatory environment.

Statutory duties which manipulate the role of the ERA would have trickle down effects; but in order for the market to realistically adapt, facilitation of market mechanisms would need to be complimented by land use planning changes. For instance, provisions to develop ‘smart grid technologies’ and modification of the transmission grid are essential in order to accommodate the growth in renewable electricity sources102.

In Germany, the legislative framework encourages local government to allocate specific sites for renewable energy development. It enforces these obligations by allowing developers to build turbines on vacant land with minimal assessment requirements if a council has not provided a suitable site. “The German plan has a clear philosophical underpinning that recognizes the importance of planning decisions in shaping the social and physical landscape”103.

Adopting this philosophy to streamline the building of renewable energy infrastructure for the SWIS is vitally important because “the principal contribution [for 100% renewable electricity] will have to come from large-scale systems. The transformation cannot be achieved on rooftops alone”104. This facet of renewable energy 96 Above n 29, 293 97 Corporations Act 2001 (Cth) s. 299 (1)(f) 98 Economic Regulation Authority Act 2003 (WA) s. 25 (a) 99 Economic Regulation Authority Act 2003 (WA) s. 25 (b, c, f) 100 Above n 29, 294 101 Above n 29, 294 102 Julie Styles, The US Waxman–Markey climate change bill, (2009) Department of Parliamentary Services, Australia < http://www.aph.gov.au/binaries/library/pubs/bn/2008-09/climatechangebill.pdf> 103 Above n 85, 503 104 Mark Diesendorf ‘Sustainable Energy Policy for Australia’ (23 February 2010) EnergyScience Coalition – Briefing Paper #5 (updated February 2010) www.energyscience.org.au


generations shows that statutory facilitation is required through land use planning tools in the Planning and Development Act 2005 (WA), the Town Planning and Development Act 1928 (WA) and Metropolitan Region Town Planning Scheme Act 1959 (WA).

Western Australia should be guided by lessons learnt from South Australia and Victoria in their attempts to integrate renewable energy so that changes to land use planning laws are not simply of a command-and-control nature. A cross-jurisdictional, community approach is essential.

The former Victorian Labor Government attempted to fast-track legislation for wind precincts that moved control of development from local councils to the State Planning Minister105. The lobbying which resulted from this meant that over time, fewer areas were able to be used as renewable energy generation sites.

The SWIS covers an area larger than the state of Victoria with extensive amounts of open land. Still, in the interest of maintaining community consensus for the greater transition toward renewable energy, as well as upholding the aesthetic values of where residents choose to live, a methodical and holistic consultative process should be adopted.

The increasing dissatisfaction over time of South Australian communities also emphasizes the importance of having equitable tools in Western Australia. The South Australian government adopted a similar fast-tracking legislative approach to Victoria, including giving approval powers to the State Planning Minister106. Whilst this initiative was initially effective, “a growing tide of resistance to wind projects premised on community health and amenity concerns”107 arose. To accommodate the diversity of community opinion within the legislation, the South Australian guidelines now permit ‘mandatory’ community buffers from generation facilities to be waived by mutual consent between the developer and the owner of the property108.

The policy philosophy of encouraging planning flexibility should be used in the SWIS. Policy written in this way facilitates increased renewable energy generation beyond the status quo for those communities who are sympathetic. At the same time, the legislation sets minimum, mandatory development requirements for those who do not share these views.

Statutory duties may appear comprehensive, but they represent only one piece of the renewable-reform puzzle. There must be sufficient alignment between regulatory decisions and government strategy. The modification of Government strategy leads to setting legally binding targets and to obligations to produce guidance, strategies and plans.

Legally-binding targets address the government, specifically Ministers, and “provide harder-edged commitments to achieve specific outcomes by a specified date”109. The Renewable Energy Target sets a national target of 20% of Australia's electricity supply to come from renewable sources by 2020 and a “constitutional corporation need not comply with any law of a State that substantially corresponds”110 to this Act. Nevertheless, insofar as a planning regime reflects the realities of local conditions, the RET is a nationally focused scheme which contains no specific goals or incentives for the SWIS to fundamentally change.

“Any worthwhile policy intervention is meant to cause significant behavior change in society”111. As such, to work toward a policy objective of low emissions over the entire electricity sector, a more ambitious and focused policy goal should be adopted.

Britain, as well as many other countries, have expressed their strategy as a stepped approach. The Climate Change Act 2008 (UK) imposed a set of overarching targets to reduce greenhouse gas emissions by 26% compared with 1990 levels by 2020 and by 80% by 2050, along with an obligation to set legally-binding “carbon budgets” at five-yearly intervals112.

105 Above n 85 106 Above n 85 107 Above n 85 108 Above n 85 109 Above n 29, 297 110 Renewable Energy (Electricity) Act 2000 (WA) s. 7C 111 Above n 57, 75 112 Above n 29, 297


In the United States, the proposed Waxman-Markey Bill113 combined the Renewable Electricity Standard (RES) and Energy Efficiency Resource Standard (EERS) into one standard. This required “retail electricity suppliers to source a certain percentage of their electricity generation from renewable resources and electricity savings. The combined renewable electricity and savings must amount to six per cent in 2012, increasing to 20 per cent by 2020”114.

To adopt such a target for the SWIS, a four step approach could be taken to allow constant monitoring toward a 100% renewable goal by 2050. For example, the combination of legally binding targets for Ministers, in conjunction with statutory duties for the ERA could facilitate a mandatory 15% total consumption of renewable energy (or reduction in greenhouse gas emissions) by 2020 against 2000 levels, 40% by 2030, 75% by 2040 and 100% by 2050. Of course this example is indicative only. Fundamentally, the structure adopted to facilitate a renewable SWIS it must be consistent. As it stands:

Lack of consistency in energy policy greatly reduces opportunities for renewable energy, and blocks the emergence of a strong renewable energy industry operating on the SWIS. Such weaknesses in policy tend to make renewable energy more expensive, and builds the perception that renewable energy is a dangerous investment in WA115.

Whilst these targets can promote consistency, a legally binding target should address both public and private liable entities. The enforceability of a legally binding target against a public entity has been contested, and found wanting, such as in R (Friends of the Earth) v Secretary of State for Energy and Climate Change116. It is therefore important for the liability for achieving renewable energy generation in the SWIS to also include private corporations within the energy sector.

This could mirror the achievements of the National Greenhouse and Energy Reporting Act 2007 (Cth) whereby the ‘responsible member’ of a private company “in accordance with [Section 22X (2)] and in respect of the financial year, [must] provide a report to the Regulator relating to the: (a) greenhouse gas emissions; and (b) energy production; and (c) energy consumption”117. Failure for a private company to comply with this provision would entail a civil penalty of 2,000 penalty units for each day they are in lieu of fulfilling their duties.

Ultimately, the purpose of a legally binding target “is to secure progress towards a policy goal, rather than to ensure strict compliance… they have a high symbolic value … [and] increase policy stability and hence investor certainty”118.

Production of guidance, strategies and plans set, justify and articulate the objectives of the SWIS. These tools work further to increase policy stability and set in place politically symbolic direction on the issues of energy generation, emission reduction, climate change and social responsibility. Usually they are not legally binding, but act as the public communication tool. To be effective they must be “specific, not just about their policy goals, but about the particular means by which those goals will be secured, thus providing additional clarity and certainty”119.

Strategy 2050 and Energy2031 are the most obvious plans which dictate the SWIS. These are effective in communicating their objectives of secure, reliable, competitive and clean energy but the pathways by which cleaner energy sources will be secured are vague, non-obligatory and rely upon federal programs outside their jurisdiction.

A revision of these plans is a critical element to creating a pathway toward making the SWIS fully renewable. As noted by Diesendorf: “Specific policies are needed to encourage the rapid growth of energy efficiency and renewable energy technologies”120, thus the upmost attention should be paid to the articulation of guidelines, strategies and plans.

113 H.R. 2454— The American Clean Energy and Security Act of 2009 114 Above n 96 115 Above n 27 116 R (Friends of the Earth) v Secretary of State for Energy and Climate Change [2009] EWCA Civ 810, 117 National Greenhouse and Energy Reporting Act 2007 s. 22X (2) 118 Above n 29, 298 119 Above n 29, 300 120 Above n 98


Of paramount importance to any governing document is its objective or ‘end goal’. The Australian experience with the Renewable Energy Target (RET) has highlighted how ambiguity in articulating a goal can be problematic. The objectives of the RET are to encourage the additional generation of electricity from renewable sources and reduce greenhouse gas emissions in the electricity sector. Recently, the Report of the Expert Panel of the RET121 (Warburton Review) found that “The RET has encouraged significant new renewable electricity generation.”122 However, amongst other options, the Warburton Report recommends: “In order to reduce the cost of the LRET and its impact on electricity markets, the Panel recommends that the LRET should be closed to new entrants”123.

The objectives of the RET to encourage additional rather than to move toward entire renewable generation, along with the goal of reducing rather than phasing out greenhouse gas emissions, has meant that the success of the RET has acted as a reason to phase out the program, rather than fulfil what might be argued as its intent – to phase out electricity generation from fossil fuel sources.

The articulation of strategies and plans for the SWIS needs to be clear that the intention behind reform and encouraging renewable energy generation sources is to eventually remove fossil fuel electricity generation entirely. Whilst potentially posing short term politically difficulties, these document are the vehicle through which defining ‘hard truths’ must be communicated.

Legal protections address the potential volatility of a policy decision over longer time frames and safeguard against changes in the political landscape. A multi-decadal electricity generation reform will require rigidity and certainty toward the end goal. In this way, legal protections exist for investors in sustainable technologies against regulatory change.

Indeed, the legal protections designed to provide investment certainty to current gas- and coal-based electricity generators in the SWIS, are one of the major barriers of change. Any policy decision which seeks to amend the status quo will need to address (via compensation or other means) the upheaval of existing legal protections in favour of installing new protections. This transition process must be undertaken strategically and fairly. If not, the risk of legal challenges against the government may occur.

In Britain, legal challenge has occurred in a number of instances, from the fossil fuel and renewable energy industries - both of whom are vying for industrial, investment and profit certainty. In Secretary of State for Energy and Climate Change v Friends of the Earth124 there was a dispute regarding a change to the feed-in tariff. The Court of Appeal held that it was inherent in the notion of a [feed-in tariff] that it guaranteed a rate of return on investment and that, in the absence of explicit statutory authority, the tariff rate could not be changed retrospectively125.

But, judicial challenges to regulatory change should not be overstated. Being able to gain standing to validate a claim of obligation in a policy scheme is difficult. This was discovered in Britain in the case Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change126 where their application for judicial review regarding a change in support rates under the Renewables Obligation was dismissed because of a lack of standing.

The role of the judiciary is significant outside simply upholding the intention of policy decisions and pathways. Short of engaging in judicial activism, Preston J explains that it would be acceptable to say that a court can “adopt a construction of the statute which promotes or better implements environmental goals, if to do so is consonant with and required by the principles of genuine interpretation”127. There is a growing body of precedent in public and private case law, both in Australia and overseas, which interprets high

121 Dick Warburton, Renewable Energy Target Scheme Report of the Expert Panel, (August 2014) <https://retreview.dpmc.gov.au/sites/default/files/files/RET_Review_Report.pdf> 122 Ibid, Executive Summary 123 Ibid, Executive Summary 124 Secretary of State for Energy and Climate Change v Friends of the Earth [2012] EWCA Civ 28 125 Above n 29, 301 126 Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change [2011] EWCA Civ 664, 127 Preston, Brian J "The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific" [2005] AsPacJlEnvLaw 6; (2005) 9(2-3) Asia Pacific Journal of Environmental Law 109


greenhouse gas emissions as a matter in conflict with upholding the public interest128. Interpretations made by judges in this ‘up stream’ section of the energy sector, thus hold up a yard stick for the government when deliberating over which energy sources should be used in the SWIS.

Furthermore, these judgments act as an indicator of shifting priorities in communities around the world which should stimulate reflection on which existing Western Australian policy objectives are actually in the public interest.

The use of fossil fuels for energy generation has such wide-reaching global ramifications that judiciaries are now beginning to require analysis of larger spatial externalities. For example, in the United States of America, the case Mid States Coalition for Progress v. Surface Transportation Board129 handled a challenge against a proposed rail line which would facilitate the exploitation of a major coal reserve. In concurrence with the decision, Heaney J noted that ‘The environmental consequences of such an increase [in coal consumption] to other geographic areas should be considered’130.

Some State governments are also showing social stewardship by seeking judicial remedies via challenging utility companies regarding their GHG emissions. In the American case of American Electric Power Company, Inc., et al., Petitioners v. Connecticut et al.131, the State of Connecticut argued that companies’ greenhouse gas emissions create a public nuisance by contributing to climate change. Their claim was ultimately dismissed because the court considered that disputes concerning climate change should be resolved by the legislature. This dismissal reiterates that focus on reforming the high emissions nature of the SWIS should be directed at the Parliament, rather than perused through litigation.

In Australia, Courts and Tribunals are providing clarification to decision makers about the relevant considerations under their statutory obligations. Scope 3 emissions132 were considered in the case of Australian Conservation Foundation v Minister for Planning133. Here, the Victorian Civil and Administrative Tribunal decided that a planning scheme amendment made under the Planning and Environment Act 1987 (Vic) “to allow an expansion of a coal mine, was required to consider the indirect impacts of greenhouse gas emissions resulting from the burning of the coal at a power station”134. By not addressing the effect of the mined coal on the environment, the obligations under the Act were not upheld.

In 2006, this was built upon in Gray v The Minister for Planning & Ors135. In this judicial review application, Justice Pain heard that:

The area of land which constitutes Anvil Hill has a deposit of approximately 150 million tonnes of thermal coal. The proposed open cut mine will produce up to 10.5 million tonnes of coal per annum. The mine is intended to operate for 21 years. The intended use of this coal is for burning as fuel in power stations in New South Wales and overseas. There is an existing contract for sale of coal to Macquarie Generation, which operates the Bayswater and Liddell power stations. About half the coal is intended for export for use as fuel in power stations to produce electricity generally in Japan. There is no dispute that burning of coal will release substantial quantities of greenhouse gases into the atmosphere.136

128 Anna Rose, ‘Gray v Minister for Planning: The Rising Tide, of Climate Change Litigation in Australia’ (2007) Sydney Law Review VOL 29: 725 129 Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003) 130 Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003) [page 34] 131 American Electric Power Company, Inc., et al., Petitioners v. Connecticut et al. No. 10-174 131 S. Ct. 2527 132 Scope 3 emissions include indirect GHG emissions from sources not owned or directly controlled by the entity but related to the entity’s activities. See: US Environmental Protection Agency, EPA’s Greenhouse Gas Emissions Reductions, (2014) <http://www.epa.gov/greeningepa/ghg/> 133 Australian Conservation Foundation v Minister for Planning [2004] VCAT 2029 134 Chris McGrath, ‘Federal Court case challenges greenhouse gas emissions from coal mines’(2006) 135 Gray v The Minister for Planning, Director-General of the Department of Planning and Centennial Hunter Pty Ltd [2006] NSWLEC 720 136 Gray v The Minister for Planning, Director-General of the Department of Planning and Centennial Hunter Pty Ltd [2006] NSWLEC 720 [4]


Ultimately, the Court upheld that ‘the Director-General failed to take into account ESD principles, in particular the principle of intergenerational equity and the precautionary principle’137 and that the GHG implications of a mine should be a consideration of mine approval. This ruling may have a compounding effect on Ministerial Approvals of mines and generation facilities which power the SWIS in years to come.

The implication of judicial decisions is that they should act as a guiding tool for decision makers. The goal of creating a low emissions, renewable energy generated SWIS forms part of the higher principle of achieving ecologically sustainable development. Regarding the consensus around climate change, any decision “inevitably requires [a subsequent] decision to be made for the future by accommodating sets of competing objectives in the overall system”138.

The interaction between judicial rulings and ministerial decisions, at the highest level, is about the decision making framework as it relates to the public interest. Fisher discusses how the public interest is determined according to what criteria are assigned (public, private, economic, social or environmental)139. “There are – and always have been – detailed sets of procedures of an administrative nature in making applications about access to and use of natural resources and in responding to these applications before leading to a final decision”140.

The Electricity Corporations Act 2005 (WA) notes that a corporation must consult the Minister before it enters upon a course of action that in its opinion is likely to be of significant public interest141. Furthermore, the Electricity Industry Act 2004 (WA) specifies in Section 9 that the Authority must not exercise a power conferred by this Division unless the Authority is satisfied that it would not be contrary to the public interest to do so142. This clause is reiterated by Section 11K of the Energy Coordination Act 1994 (WA).

What is persistent, despite the detailed administrative procedures which exist at both the state and federals levels, is the lack of clarity regarding to what extent the public interest penetrates spatial and temporal parameters. “The essence of the concept of the public interest is that it involves a public benefit”143. Beyond this however, it is the interpretations articulated by the Judiciary to which Decision Makers should turn to gain guidance about the length of foresight their policies should encompass. In this case, the high order priority of a low emissions, sustainable and renewable energy system should be the defining factor in our state energy policies.

“The reality is that Australians have a range of demand side and supply side energy options, all of which can help to satisfy our future energy service requirements, and are or can be made cost-effective”144. The choices we are making are, either consciously or unconsciously, dictated by underlying assumptions relating to our cultural and personal priorities. Climate change, judicial decisions, resource constraints and our place in the national and global community should be assessed and the outcomes of these, not simply the enticement of short term economic gains, should shape our energy future.

6. Concluding Remarks

It has been observed internationally that there “is too much focus on short term growth and not enough cooperation on building the new growth platforms needed over the next several decades”145. It would seem that the Western Australian Government has adopted an attitude to their policies which focuses on short term growth in electricity generation. Fortunately for the public, the level of commitment toward renewable

137 Gray v The Minister for Planning, Director-General of the Department of Planning and Centennial Hunter Pty Ltd [2006] NSWLEC 720 [145] 138 Douglas E Fisher, ‘The rule of law, the public interest and the management of natural resources in Australia’ (2014) 31 EPLJ 151 139 Ibid 140 Ibid 141 Electricity Corporations Act 2005 (WA) s. 70 (b) 142 Electricity Industry Act 2004 (WA) s. 9 (1) 143 Chris McGrath, Flying foxes, dams and whales: Using federal environmental laws in the public interest, (2008) 25 EPLJ 324, 325 144 Above n 55, 270 145 Molitor Michael, ‘Decarbonising energy is only way to reach global growth ambitions’ RenewEconomy (online) 13 December 2013 <http://reneweconomy.com.au/2013/molitor-83862>


energy and climate change at the federal and state levels do not need to reflect one other, and are malleable.

The removal of systemic barriers to adopting renewable energy can only be achieved through collaboration amongst the IMO, ERA, Western Power, the Public Utilities Office, relevant state government elected officials146 and all stakeholders in industry and the community. First, the recalibration of policy objectives and passing of statutory duties through legislation are needed to kick start this process.

Whether or not energy reform toward renewable generation occurs is ultimately political. What must be recognized within this however is that low-priced power may not be the same as low-cost power when environmental and social externalities are taken into account. This means we need to recalibrate our system to account for this risk. The Bloomberg Review summarised the challenge as “what countries are willing to pay now for an energy source that may be cheaper and will undoubtedly be cleaner in the long run”147.

This discussion has endorsed using the rule of law to facilitate additional regulation of the SWIS and WEM. Some may see this as a ‘step backward’ toward recreating the natural monopoly that existed pre-2006. Certainly in the short term, increased regulatory involvement would contradict the goals of competition policy. However, the disaggregation has failed to lead to increased efficiency, and lower electricity prices have not transpired148. The sooner this transition is invested in, the sooner it will become the new status quo, and the market will re-calibrate.

By not stepping in and taking control of our collective energy future in the SWIS we are selling ourselves, the global community and future generations short.

Barack Obama recently said in his address to the United Nations General Assembly, “we cannot rely on a rule book written for a different century”149. The centralised, fossil fuel based system, and the rule book that governs it, was built for a different century. It is to the benefit of our industries, our communities, our environment and our children to invest in a cleaner energy system.

NELA Essay Competition 2015 – NOW OPEN Sean Helbig’s article was the winner of the 2014 NELA Essay Competition.

The 2015 competition is now open for entries. Essays addressing any environmental law theme can be submitted by an undergraduate or postgraduate student currently enrolled at an Australian tertiary institution.

Essays should be between 4,000 – 7,000 words in length and comply with the formatting requirements set out in the Competition Guidelines.

The deadline for submissions is 1 December 2015. Winners will receive $1,000 and a 12-month NELA membership.

For more information, check out the 2015 NELA Essay Competition Guidelines.

146 Above n 27 147 Reed Landberg, Solar Energy - Growing Fast, but Nighttime Is Still a Problem, October 12, 2014, Bloomberg <http://www.bloombergview.com/quicktake/solar-energy> 148 Above n 83 149 Barack Obama, ‘President Obama's 2014 UN General Assembly Speech’ (Speech delivered at the United Nations General Assembly, New York, 2014) <https://www.youtube.com/watch?v=7gzFPI11jp8>

http://www.nela.org.au/NELA/Events/Essay_Competition/NELA/Events/Essay_Competition.aspx

https://www.youtube.com/watch?v=7gzFPI11jp8

AUSTRALIAN ENVIRONMENTAL LAW DIGEST | November 2015 · ISSN: 2203-935X. AUSTRALIAN ENVIRONMENTAL...

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