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:

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


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


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.