Compliance, Enforcement and Emerging Risk

1. Compliance, Enforcement and Emerging Risk A presentation by: Dr Stephen Willey Senior Assistant State Solicitor State Solicitor’s Office 1 September 2017 State Solicitor’s Office

2. Compliance, Enforcement and Emerging Risk • Work predominately in the Development & Resources stream of the State Administrative Tribunal. • Propose to discuss cases where the issue of risk has been (or is) a central consideration.

3. Compliance, Enforcement and Emerging Risk • These cases include consideration of risk arising from: • Management of bushfire; • Gas pipelines; and • Coastal processes.

4. Bushfire • Is now a central land use planning issue • Keelty Report following the Perth Hills Bushfire in 2011 • Recommendations outlined that land use planning had a greater role to play in Bushfire management

5. Bushfire • WAPC and FESA responded with a comprehensive policy setting – including SPP 3.7 • SPP 3.7 is a State planning policy. SPPs have status under the Planning and Development Act 2005

6. Bushfire • SPP 3.7 adopts the precautionary principle if there is a concern that the relevant policy measures have not been addressed.

7. Bushfire • The Tribunal’s decision in Rigg and WAPC [2017] WASAT 19 considered, for the first time, SPP 3.7 • Proposal for three survey strata lots of a ‘purple title’ lot held between three owners. • Two dwellings (one by way of a non conforming use right) were located on the property.

8. Bushfire • Approval to the subdivision would have enabled each lot to have a dwelling. • Property was 48ha in area and located in Yallingup, immediately east of the Leeuwin Naturaliste National Park.

9. Bushfire • Subject Land

10. Bushfire • Pursuant to new policy arrangements, DFES gave expert evidence (from a fire control officer) on bushfire. • The evidence outlined the risks to both dwelling occupants and emergency services in bushfire events.

11. Bushfire • Tribunal’s conclusions (at [56]):  • The Tribunal finds that the subdivision proposal is an intensification of land use at the subject site that must be considered in light of the extreme bushfire hazard at the subject site. To quote the language of Mr Parker [from DFES], the Tribunal is persuaded that approval of the subdivision proposal would “make a bad situation worse”.

12. Implications • There, of course, needs to a balance between the need to make prudent land use decisions but also to take account of the desire of many people to live in rural settings. • Rigg provides support for proposition that any intensification of land use in an extreme fire hazard area should not be supported.

13. Gas pipelines • Dampier-Bunbury Pipeline is 1600km long high pressure gas pipeline which is a critical state asset. • It was constructed in the 1980s and is now privately owned.

14. Gas pipelines • The pipeline is not constructed to a uniform standard. • As the Perth-Peel conurbation expands, Rural sections of the pipeline will be closer to settlements.

15. Gas Pipelines

16. Gas pipelines • This creates issues for land use planning as to: • The inherent risks associated with pipelines; • Buffer and setback requirements; • Potential upgrade of the pipeline and the liability for that upgrade.

17. Gas pipelines • The WAPC has prepared a draft DC policy 4.3 to deal with planning at the interface of high pressure gas pipelines. • The draft policy puts the burden of managing the risk on developers and provides that pipe upgrades can be imposed as a condition of approval.

18. Implications • Draft DC 4.3 provides a clear policy position that it if planning is the agent of change – then the responsibility of managing the interface risks is the subdivider/developers to bear.

19. Coastal planning • WA’s coastline is almost 21,000kms long. • Climate change has and will continue to impact some areas of the coastline. • This presents challenges and risks for landowners and governments.

20. Coastal planning • SPP 2.6 is the WAPC’s policy position on planning and managing coastal environments. • Adopts a planning timeframe of 100 years. • Like SPP 3.7, SPP 2.6 references the precautionary principle as a relevant consideration.

21. Coastal planning • SPP 2.6 will be considered at the centre of a number of matters before the SAT which involve: • a structure plan where the original foreshore reserve is no longer adequate; and • a subdivision for a partially implemented development in circumstances where sea level change has become a significant issue.

22. Summary • Instances where risk is a significant factor in environmental planning decision-making appear to be on increase. • Based on the issues discussed above, the management of risk in land use decision making is a factor that needs to be considered and evaluated at a policy level by (generally) adopting a precautionary approach.