Planning Prosecution for Land Clearing
The overlap between planning and environmental laws was displayed in a recent Magistrates Court proceeding. The Shire of Augusta Margaret River (Shire) prosecuted two parties for carrying out unlawful development under the Planning and Development Act 2005 (WA) (PD Act).
McLeod Fisher & Hamdorf acted for a defendant, Powerwide Pty Ltd (Powerwide). The charge related to clearing of native vegetation that had been undertaken by a contractor at the co-accused’s tree plantation in the south-west of Western Australia.
The Shire prosecuted the defendants for an alleged offence under the PD Act. Local governments can also refuse applications for development approval and issue directions notices under the PD Act, which can direct a party to cease or alter development on their land. Parties can also be criminally prosecuted by the Department of Water and Environmental Regulation (DWER) for clearing offences under the Environmental Protection Act 1986 (WA) and be issued with various protection notices to revegetate land or undertake specified investigations.
Powerwide was ultimately acquitted, but the co-accused party was convicted and fined $141,000 plus costs.
In another recent decision, the Shire also refused a development application to remove 97 peppermint trees from a property¹. This decision was affirmed in the State Administrative Tribunal. Whilst this matter involved an administrative decision to refuse an application to clear native vegetation, it highlights the Shire’s anti-clearing policies and its desire to restrict and limit clearing activities in the locality.
These cases are timely reminders that legal advice should be sought if clearing of land is required as part of any development, particularly if it involves clearing of native vegetation. Seeking prior advice can prove timely and cost effective in proactively managing proposed development.
McLeod Fisher & Hamdorf will be pleased to answer questions on the above.
[1] Hutchings and Shire of Augusta Margaret River [2023] WASAT 96.