Community Activists’ 4-year legal odyssey ends in win

The Environmental Defenders Office (EDOWA) is thrilled to announce victory in a long-running litigation matter, a defamation action brought against community activists who have, to date, successfully opposed an urban development in Wattle Grove, a rural part of the Kalamunda Shire.

 

The EDOWA and Barrister Dr Johannes Schoombee represented Jane Genovese, one of three defendants alleged to have defamed local developer, Ross Leighton, in a lawsuit he filed in the WA Supreme Court in April 2012.

 

The EDO had previously provided legal advice and assistance to Ms Genovese and other local residents regarding environmental and planning issues related to the development and took on Ms Genovese’s defence based on that prior assistance and the public interest in defending community members’ right to free speech regarding environmental issues.

 

In a judgment released on the 29 April 2016, Justice Rene Le Miere dismissed Mr Leighton’s action for want of prosecution. On 28 July 2015, Justice Le Miere had placed Mr Leighton’s case on the Court’s Inactive Cases List because he’d taken no steps to advance the case in the preceding 12 months. At the July hearing, the Court advised Mr Leighton that if he took no steps to re-activate the case, it would be dismissed after six months’ time.

 

When Mr Leighton took no action, EDOWA and the other defendants’ lawyers applied to have the action dismissed on 1 March 2016. Mr Leighton opposed dismissal – and particularly the award of costs that would flow from dismissal – leading to two hearings on 1 April and 15 April 2016.

 

Ultimately, the Court agreed with the EDOWA’s application to dismiss the case for want of prosecution. Justice Le Miere’s decision in Leighton v Garnham [No. 4] [2016] WASC 134 can be found on the WA Supreme Court’s website, under “Judgments”, or accessed here:

http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf/judgment.xsp?documentId=49E83D20A37702D948257FA400153AF3&action=openDocument&SessionID=EE798YJVYE.

 
In conjunction with the dismissal of the plaintiff’s action, Justice LeMiere ordered Mr Leighton to pay the defendants’ costs in the case from May 2012 to 29 February 2016, and to pay them 50% of their costs associated with their efforts to dismiss the matter after 1 March 2016.

 

On receiving the Court’s decision, EDOWA’s Principal Solicitor, Patrick Pearlman, asked:

“Please join us in wishing Jane congratulations on ending a very trying, painful four-year trip through WA’s complex law of defamation and the very best of wishes in getting on with her life”.

For media enquiries please contact Patrick Pearlman:  08 9221 3030 or edowa@edowa.org.au

Make your voice be heard: Objecting to rezoning 32 Gavour road Wattle Grove (Amendment 57)

groundhog-day-bill-murray

The movie “Groundhog Day” is about a man (Phil Connors, played by Bill Murray) who is stuck in a time loop, reliving the same day over and over again.

 

The people of special rural Wattle Grove must feel a bit like the character Phil Connors – stuck in a bad version of this film with the Shire of Kalamunda’s recent decision to initiate the rezoning of 32 Gavour road, Wattle Grove (Amendment 57) for the fourth time.

 

This proposal was before council in 2004, 2007, 2009 and 2013.

 

That’s 4 times in less than 10 years.

 

Residents now have less than 60 days to make a submission outlining their concerns.

 

The good news is this won’t be hard to do because here’s the thing:

 

Nothing seems to have changed with the latest proposal.

 

The documentation submitted by the proponent is 297 pages long and leaves people with the impression that something specific is going to be built.

 

However the Shire of Kalamunda states in a letter that was recently sent out to local Wattle Grove residents the following –

 

“Attached is a concept plans however this schematic only and does not form part of the amendment. Issues relating to built form, site layout, servicing, traffic and other matters will be addressed at the development application stage if the amendment is approved by the Minister for Planning”

 

This begs the question – Is there any guarantee of high-end aged care accommodation being built on the site?

 

At the end of the day, I believe we’re still dealing with the same flawed proposal.

 

If approved by the Shire of Kalamunda and the Minister for planning (John Day), it will give way to a dense urban development in the middle of a special rural area.

 

And if poor planning decisions can happen here, they can happen anywhere.

 

The same objections apply for this rezoning application as they did to the previous applications. The main objections are as follows:

 

  1. The land cannot be serviced by reticulated sewerage system. The Shire of Kalamunda has finally conceded that fact, as advised by ratepayers and the Water Authority since 2009.

 

  1. The Amendment is inconsistent with orderly and proper planning of the Wattle Grove locality and the Shire of Kalamunda by reason of its ad hoc and incremental approach to planning and development (Stated by the Secretary of the Western Australian Planning Commission on the 14th July 2009 in respect to 32 Gavour road, Wattle Grove).

 

  1. The rural zone of the metropolitan region is an inappropriate location for aged persons accommodation and facilities, which should be provided within or contiguous to established or planned urban areas with ready access to facilities and amenities and closer integration with established communities (Stated by the Secretary of the Western Australian Planning Commission on the 14th July 2009 in respect to 32 Gavour road, Wattle Grove).

 

  1. This proposed rezoning conflicts sharply with the rural character of the surroundings and is inconsistent with orderly and proper planning.

 

  1. The land use and development facilitated by the proposed amendment would constitute an undesirable precedent for use and development of the locality and foothills generally, especially having regard to the current lack of urban services and utilities including readily available reticulated sewerage (Stated by the Secretary of the Western Australian Planning Commission on the 14th July 2009 in respect to 32 Gavour road, Wattle Grove).

I encourage everyone to make a submission to both the Shire of Kalamunda and the Western Australian Planning Commission (WAPC) outlining their concerns.

 

Submissions are due by the 30th of May 2014.

 

You can download a submission form here.

 

The fight to keep Wattle Grove rural continues

On the 26th of August 2013 the Kalamunda council held a special council meeting to yet again initiate the rezoning of 32 Gavour road, Wattle Grove from special rural to dense urban (to read the minutes of this meeting, click here).

Only 10 months ago the Minister for Planning John Day rejected the rezoning application.

An advertisement about the meeting was placed in the Hills Gazette paper (a paper not delivered to Wattle Grove residents) by the Shire of Kalamunda on the 24th of August, giving residents very little notice about this meeting.

kalamunda ad for web

This rezoning proposal has been put forward 4 times in a 9 year period. It has been rejected 3 times based on planning grounds, mainly due to the fact that the area is not appropriate for such a facility. Nothing has changed with the latest proposal.

But it was no surprise that the current council voted unanimously to initiate the rezoning at the special council meeting.

This decision goes against common sense, proper planning legislation, the needs of the elderly and the Ministers decision to reject the proposal made less than 10 months ago.

The land still cannot be connected to reticulated sewerage and the minister when rejecting the proposal was aware that on-site sewerage disposal was an option. The endorsed local planning strategy does not designate Wattle Grove as urban, either now or in the future.

The proposal is still inconsistent with many of the recommendations contained within the Shire’s Aged Accommodation Strategy (2008). This document recommends aged persons accommodation be located around the town centres or shopping areas. The Wattle Grove site does not satisfy this recommendation.

There are known environmental risks associated with on-site treatment and disposal of sewerage. A substantial discharge of waste water into the local environment which is connected to the Swan/Canning system via Crystal Brook poses a serious risk that the current council is willing to take.

For the Kalamunda council to unanimously pass a motion to initiate the rezoning of this land raises the question – who is this council really serving? Or has this become a personal battle between them and Wattle Grove residents?

They can’t be serving the elderly because the site is not appropriate being far away from essential services. I am also aware that there are a number of other sites being considered.

We’ll keep you posted on what happens next in relation to this rezoning application.

ECHO Newspaper Front Page Story: Rezoning Application Rejected

Here is the front page story of this weeks ECHO newspaper (click on the image to download a PDF version of the story). Sarah Brookes documents the reactions of Kalamunda Shire President Donald Mckechnie, The Wattle Grove Action Group and landowner Ross Leighton to the Minister for Planning’s decision to not approve the rezoning application of 32 Gavour Road, Wattle Grove.

Minister Rejects Amendment 18: Successful End to an 8 Year Community Battle

The Wattle Grove community welcomes the news that Minister for Planning John Day has rejected the proposal to re-zone the rural land at Lot 500 Gavour Road Wattle Grove.

The purpose of the rezoning was to develop 182 residential units for sale to over 55s with the promise of an aged care facility at some time in the unspecified future. This decision comes 8 years after the proposal was first submitted to council back in 2004.

The proposal was rejected by two previous Kalamunda Shire councils, before being adopted by a third council as a result of a legal challenge.

It marks the end of a long, heated debate within Wattle Grove and the Kalamunda Shire regarding the proposed rezoning of the land. 85% of local Wattle Grove residents had opposed the proposal to rezone and develop the parcel of land.

Residents had expressed opinions that the rezoning of the land was inappropriate and at odds with the rural use and low density character of the existing suburb.

They also expressed beliefs that more suitable locations for aged care facilities were available and feared the rezoning would result in other high density re-zonings in the surrounding area.

Local Wattle Grove resident Robert Vletter said –

“It shows that if the 150 or so residents of the area are prepared to be proactive for 8 or so years, it is possible to keep what they care about”.

Whilst the Wattle Grove Action Group applauds the minister’s decision, members of the group also feel for the elderly of the Shire of Kalamunda. Clive Garnham from the Wattle Grove Action Group believed residents of the shire had been let down by their council representatives.

Mr Garnham stated –

“For too long some shire councillors and staff have staked their credibility on their wholehearted support of what has been found to be a flawed proposal. We believe the current council chose to ignore other viable alternatives and delayed addressing the needs of the elderly in our community”.

In the Minister’s decision John Day stated that the proposal was inappropriate for a number of reasons including the lack of reticulated sewerage available to the site. Mr Day stated in his press release to the media –

“…all issues considered, the only proper decision is to not approve the Amendment.  To do otherwise would be to continue a false expectation regarding the community’s desire for additional residential aged care facilities on this particular site.”

In relation to the lack of reticulated sewerage to the site, Wattle Grove resident Sharon Genovese stated –

“The shire was made aware by the Water Corporation that the site could not be serviced by reticulated sewerage back in 2009 and yet their officers still continued to make public statements that the site was the most suitable for an aged care facility as it had all the requisite services which included the ability to be serviced by reticulated sewer. This was incorrect and the shire knew it”.

We hope this will be the end of this matter but don’t be surprised if the Shire of Kalamunda who is hell bent on urbanising our wonderful rural area tries to do something else. Watch this space.

Media Release from Environmental Defender’s Office: Defending a Defamation Case against Ross Leighton

A client of the Environmental Defender’s Office (EDO) has had a recent court win in respect of aspects of a defamation case brought against her. Prior resident of Wattle Grove, Ms Jane Genovese, is defending defamation allegations brought against her and two others by a developer, Mr Ross Leighton.

Mr Leighton alleges in the Supreme Court case that the defendants defamed him in relation to a proposed rezoning of rural land in Wattle Grove to allow for an old aged care development at Lot Part 707, Gavour Road, Wattle Grove. In his pleadings Mr Leighton alleged that the defendants, including Ms Genovese, had published articles in the local newspaper and on an internet site (Wattle Grove Vision) containing imputations that Mr Leighton, in his capacity as a developer, was a liar.

The EDO as solicitors for Ms Genovese has engaged a barrister of the independent Bar, Dr J T Schoombee, to act for her in the case.

The alleged defamatory allegations arose in the context of a long, heated debate within Wattle Grove and the Kalamunda Shire regarding the proposed rezoning of Mr Leighton’s land. Nonsupporters of the rezoning and aged care facility development have expressed opinions that the rezoning of the land from ‘Rural’ to ‘Special Use’ is inappropriate and at odds with the rural use and low density character of the existing suburb. They have also expressed beliefs that more suitable locations for aged care facilities are available and fear the rezoning could result in other high density or ‘Special Use’ re-zonings in the surrounding area.

On 2 August 2012, Ms Genovese and the other defendants brought a strike out application against aspects of Mr Leighton’s pleadings in the Supreme Court. One of the issues raised was that the publications relied upon by Mr Leighton could not support an imputation that Mr Leighton was made out to be a liar in his capacity as developer of the relevant site.

The defendant argued further that as a matter of pleading, this allegation was also too imprecise and ambiguous. On 4 September 2012, Justice Le Miere of the Supreme Court ruled that the defendants were right in their second objection in respect of all of the four relevent publications and correct in respect of their first objection in respect of two of the publications.

Hence Mr Leighton’s pleading that he was defamed by saying he was a liar in his capacity as developer of the development, was struck out.

The plaintiff (Mr Leighton) has the leave of the Court to re-plead his case. The next directions hearing is on 25 September 2012, at which time Justice Le Miere will decide how the remainder of the defamation trial will proceed.

For media enquiries please contact Annaleen Harris (Outreach Solicitor at the Environmental Defender’s Office, WA):

aharris@edowa.org.au

Shire of Kalamunda, a Home in the Forest?

I have one word to describe the Special Council meeting that was called to adopt the Local Planning Strategy tonight: Mindless.

Social psychologist Ellen Langer states that when an individual is mindless their thinking is dominated by a narrow perspective, they rigidly rely on narrow categories and fail to take into consideration different perspectives.

Never before have I seen so many councillors mindlessly pass a strategy that will dramatically impact on the natural environment, my community and future generations.

It became apparent at tonight’s meeting that the councillors had had only 3 days to look at the revised strategy, accompanying documents and compiled submissions, some noting that they hadn’t even had time to look at them.

And yet, they were quite confident in their decision to vote on passing the Planning Strategy.

The fact that there were 188 objections to rezoning Wattle Grove, 25 supporting and 7 neutral did not seem to make any difference to these mindless councillors.

11 out of 12 councillors voted for the strategy to be adopted.

The Shire's reasoning for ignoring the submissions of 85% of Wattle Grove Residents who Opposed the Planning Strategy (Click on image to enlarge)

Very little debate between councillors took place tonight. All councillor Stallard had to say on the matter of Wattle Grove becoming an urban development area was that “We can’t stop progress” and “If we don’t do it, someone else will do it”. Really deep.

The 1 councillor who opposed the strategy, Maureen Robinson, was not mindless. In fact, she was the complete opposite. She spoke passionately and authentically for the residents of Wattle Grove. You could tell she had taken the time to look through the revised Planning Strategy and really think about it. She questioned why the council is rushing into making such dramatic changes and moving to rezone for a population prediction for the year 2056.

Most importantly, she highlighted that the most important thing that came out of the “community consultations” was that residents wanted to retain their home in the forest. Yet, the planning strategy that was adopted tonight is the beginning of the destruction of the trees and the biodiversity of our area.

They can keep repeating the word “sustainable” and “sustainable growth” but we are not stupid. Do you really think that you can change the zoning of an area to include more houses, more people, more electricity, more cars, etc and you’re not going to have an impact on the environment or community?

The sad thing is that it no longer surprised or shocked me to see developer Ross Leighton being very familiar and chatting with the councillors.

At what point did our shire councillors stop listening to the people they are supposed to represent and only take into account the wishes of a vocal minority?

One thing is for sure, we need to reclaim our Shire. It’s going to take something, but it must be done.