Australia: Nothing improper in WA Planning Minister's intervention in controversial resource development

Key Points:

Industry will need to evaluate the need for and timing of high-level government intervention, its impact on environmental assessment processes and public reaction.

The recent decision of Hunter v The Minister for Planning [2012] WASC 247 puts a spotlight on the intervention by planning authorities when major development pressures (such as in the resources industry) coincide with a transitioning planning framework.

Background

Goolarabooloo Law Boss Richard Hunter is an opponent of the controversial development by Woodside Energy Ltd at James Price Point in the Kimberley region of Western Australia.

Mr Hunter had brought proceedings that challenged the grant of planning approval by the Kimberley Joint Development Assessment Panel. Prior to the hearing of that challenge, the Minister for Planning amended the statutory planning framework. This amendment meant that planning approval would not be needed for Woodside's development if the Panel's decision was invalid.

Mr Hunter then challenged the Minister's amendment because it undermined the utility of his challenge to Woodside's planning approval, contending it was made for an improper purpose.

Failure of Mr Hunter's challenge

In dismissing Mr Hunter's challenge, the Court inferred that a substantial purpose of the Minister's intervention was the orderly and proper planning of the subject site.

Specifically, the Court held that:

• the exercise of an administrative or legislative power is not invalid merely because it would have an effect upon pending or threatened litigation";
• in the context of the [Planning and Development Act 2005 (WA)] the purpose for which the power is conferred is to enable the Minister to advance the public interest by 'regulating, restricting or prohibiting the development of any land' (using the language of s 102(1))"; and
• Regulating the development of land by permitting it to proceed subject to specified conditions is the quintessential means by which the purposes of the Act are achieved... The fact that the Amendment Order would have an impact on the utility of the litigation which was pending does not detract from its characterisation as an order regulating the development of land, nor does the fact that it only operates in the event of the invalidity of the prior approval".

In reaching this conclusion, the Court noted that:

• the timing of the Minister's intervention was not significant (other than potentially reducing public and private costs of litigation); and
• the amendment to the statutory planning framework was not invalid just because Woodside would benefit from being able to implement the project.

Significance for energy, resources and associated developments

There exists significant public interest in the expansion of the energy, resources and associated industries due to perceived economic, social and environmental impacts (see for example the Western Australian Government's Royalty for Regions program and Pilbara Cities initiative).

However, the significance of Hunter is the manner in which government intervention is characterised (ie. whether as advancement of the public interest through "regulating, restricting or prohibiting" the development of any land).

Intervention by planning authorities may arise because development is significant, in the sense of facilitating orderly and proper planning through:

• providing opportunities for additional or improved vertical development of industry;
• the creation or conversion of precincts for desired uses; or
• the roll-out or optimisation of valuable public infrastructure.

Infrastructure will most likely provide the strongest justification for government intervention and it is notable that recent work by the Western Australian Planning Commission (WAPC) and Department of Planning (DoP) highlighted infrastructure as a strategic priority:

• Pilbara Planning and Infrastructure Framework (January 2012), which identifies priorities that include preventing land use constraint on mineral extraction; expanding wharf-side and land-side port capacity; promoting multi-user rail network and port facilities; ensuring strategic, general and light industrial land supply; and managing fly-in, fly-out worker and transient worker accommodation. Further detail on responsible agencies, costs and delivery timelines are intended in a Pilbara Infrastructure Implementation Plan.
• Mid West Regional Planning and Infrastructure Framework: The Way Forward (Draft, November 2011), which identifies priorities that include port expansion and development (Geraldton and Oakajee); expansion of rail networks, power and water services; and the identification and securing of suitable land for transport and service corridors.
• Gascoyne Regional Planning and Infrastructure Framework (Draft, July 2012), which identifies opportunities that include expanded mineral exploration, a potential mining services hub and expanded service industries for the offshore petroleum industry in the Exmouth sub-basin.

Whatever the nature of the project, the timing and extent of government intervention in the future remains to be seen. However, government intervention is more likely for significant projects constrained by:

• non-existent or significantly outdated strategic and statutory planning frameworks (and notably the Pilbara, Mid West and Gascoyne frameworks provide preliminary steps in rectifying this deficiency);
• opportunities for project implementation being significantly less than traditional timeframes for planning processes; and
• competing priorities for regional infrastructure.

Implications

The current trend of energy, resources and associated industry development occurring simultaneously with an evolving planning framework is likely to continue, most notably for those significant projects that underpin regional development trends.

This will increasingly lead to a complex planning environment where the public interest in co-ordinated infrastructure provision (ie. ensuring that growth scenarios for the regions are maximised and sustained) is balanced with difficult investment decisions for government (due to uncertainty around infrastructure timing, project staging, scale, activity and population impacts).

Increasingly, industry will need to evaluate the need for and timing of high-level government intervention, its impact on other statutory approval processes (particularly environmental assessment processes) and public reaction.

Additionally, in convincing government to intervene, project proponents will likely need to address:

• the merits of alternative modes of intervention;
• their and the region's relative need for desired infrastructure (as a means of negotiating the split of public and private funding and mechanisms for recouping pre-funded head-works); and
• the operational impacts of price for securing intervention (particularly development requirements or contributions that take on a broader public interest hue).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.