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

Advertisements

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.

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.