NOTES FROM UNDERGROUND

Welcome to the Wheatbelt, the waste disposal hub of WA

It’s now a month since the State Administrative Tribunal handed down its decision to give conditional approval to SITA’s landfill proposal. 

Some of you, like me, may have taken the time and trouble to download and read the decision, available from http://www.austlii.edu.au/au/cases/wa/WASAT/2016/22.html.

For many of us, the decision came as a disappointment but no surprise.  As it made clear—not of course in so many words—the scales of justice were from the outset weighted heavily against the people of York.  That is not a reflection on the Tribunal, which acted in accordance with precedent and relevant legislation, as it was bound to do.

Not being a lawyer, I‘m not qualified to discuss the specifically legal issues canvassed in SAT’s decision, although thanks to its clarity of exposition and argument I think I can honestly say I had little difficulty in understanding them.

Luckily, though, I‘ve had access to legal advice regarding the reasons for the decision and the prospects of appeal.  In summary, it appears from that advice that the decision is legally watertight, offering no basis for an appeal to the Supreme Court.

Perhaps all is not lost.  There may be grounds to apply for a ministerial review of the conditions attached to the Works Approval issued by the Department of Environmental Regulation (DER).  The closing date for such an application is today, 7 April, so if you haven’t got round to doing it, you’ve missed the boat. 

You’ve also saved yourself $50, the amount of the application fee.

It may also be possible to apply for a judicial review of DER’s decision to grant the Works Approval.  This application would have to be lodged with the Supreme Court, which has power to monitor and restrain administrative decisions by means of ancient remedies known as ‘prerogative writs’ issued against a decision-making body.

For the curious, prerogative writs comprise certiorari  (‘please explain’), mandamus (‘do this or else’), prohibition (‘don’t you dare do this’) and habeas corpus (‘let the poor bugger go’).  Only the first three would apply in this case—for now, anyway (just kidding, Your Honour).

The danger here is that if such an application were to fail, SITA as respondent would be able to apply for costs.  It could even seek from the court an order for ‘security of costs’ before the application is decided.  If work on the landfill was delayed pending the court’s decision, SITA might also, if it wins, go for an award of damages. 

Most of us, as individuals, would find that a terrifying prospect.  SITA, a subsidiary of the giant international corporation Suez-Lyonnaise, has virtually limitless financial resources, enormous political influence, and no obvious inclination to exercise moderation or mercy.  Its primary motivation is a rapacious desire to maximise profits.

As the 18^th century Lord Chancellor Edward Thurlow is reported to have said, ‘Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?’  (That’s the polite version.) 

A corporation like SITA is hardly better than a gargantuan psychopath, with far greater capacity to intimidate than our friend Animal Crackers (‘woof, woof’) or other home grown advocates for the waste disposal industry. 

If anybody does intend to take SITA on in the Supreme Court, they would do well to seek crowd funding on a massive scale to cover SITA’s expenses as well as their own.

Weighting the scales of justice—1

In making its decision, the Tribunal relied heavily on the argument that SITA’s proposal was consistent not only with the York Shire’s Town Planning Scheme No.2 (TPS2), but also with state government planning regulations.

I may have got this wrong, but so far as I could tell consistency with TPS 2 depended considerably on the inclusion of ‘noxious industry’ among the uses permissible in the Agricultural Zone. 

As I recall, those words did not appear in the Scheme until a few years ago, when they were inserted—so the story goes—on the instigation of a former CEO of the Shire, allegedly at the insistence of a person who if he was a councillor at the time might have declared an interest.

I wonder how much genuine attention the shire council of the day gave to the implications of inserting those words in the Scheme.  Perhaps they were assured that paving the way for noxious industries—like gravel pits, recycling depots or landfills—in the Agricultural Zone was vital to the interests of agriculture and tourism in York, those being the two main sources of York’s prosperity, such as it is. 

I suppose there may be logic in there somewhere, but it’s lost on me.

Weighting the scales of justice—2

People who have scoffed at my suggestion that the state government played an important and deliberate part in ensuring SITA’s triumph in the Tribunal should consider the reliance the Tribunal placed on planning documents emanating from the WA Planning Commission (WAPC).   This agency describes itself on its website as responding ‘to the strategic direction of government on urban, rural and regional land use’.

In June 2014, WAPC issued a document entitled State Planning Strategy 2050.  The Tribunal’s decision deems it relevant that Figure 32, ‘Planning for Waste’, in that document ‘identifies on a map a landfill site within the Shire, but does not identify it specifically on the subject land, particularly because of the scale of Figure 32’ (my emphasis). 

How convenient that scaling now seems, bearing in mind that by June 2014 battle between the Shire and SITA over the Allawuna siting had been well and truly joined.

No less persuasive for the Tribunal appear to have been the waste management proposals contained in a document headed Draft Wheatbelt Regional Planning and Infrastructure Framework, issued by WAPC in March 2014.  This document clearly identifies the Wheatbelt as an intended receptacle for metropolitan waste, noting the existence of ‘current proposals for landfill facilities in the Shires of York and Toodyay’.

The Tribunal notes as ‘important’ that Appendix 5 of the draft document ‘recognises the opportunity’ for a regional waste facility as a component of ‘strategic infrastructure to service Perth’.

A cynic might question why a draft document should to such an extent have influenced a decision supposedly focused on existing planning law.

The Tribunal also makes much of a document published by the WA Waste Authority in 2012, namely, The Western Australian Waste Strategy: ‘Creating the Right Environment’.  That was the year when we in York first became aware of the waste disposal juggernaut heading in our direction with the blessing of certain former councillors and of course, our illustrious former CEO.  This document refers to the need for waste disposal facilities in regional WA to accommodate the growth of Perth.

There is no indication in the Tribunal’s decision that the needs, wishes and interests of local tourism, neighbouring landholders and the people who live in York have counted for anything at all.¹ 

Environmental concerns are effectively dismissed as the responsibility of the DER, which couldn’t be bothered to investigate such concerns with proper vigour before issuing its Works Approval.  (I’ll have more to say about the DER’s role in my next article but one.)

The historical and heritage importance of York as WA’s first inland settlement barely rates a mention.  The impact of increased truck movements on other users of the Great Southern Highway is airily waved away.

For this, the Tribunal is not to blame, constrained as it was by a legal framework set up by the current state government to make life easy for large corporations and to restrict the capacity of ordinary citizens—in this case, country people— to resist developer encroachments on their environment and way of life.

As the old joke has it, this represents the triumph of mind over matter:  they don’t mind, and we don’t matter.  It’s not as if there were no other possible sitings for a landfill, in places further from human habitation and of less environmental and cultural significance. 

The issue here, acknowledged by Nial Stock, SITA’s general manager in WA, was that such sitings were less convenient and more expensive for SITA, and would therefore sap the corporation’s profits.²  

There you go, fellow nimbies, that’s life in 21^st century Western Australia.  Don’t get your hopes up.  It isn’t likely to change.

NOTES

1.     Kay and Robyn Davies, by leave of the Tribunal, very capably represented the opinions of neighbouring landowners in a submission the Tribunal described as ‘a lengthy, well researched and comprehensive document covering a diverse range of amenity, local and environmental issues relevant to the proposed landfill’.  However, their evidence was outweighed by ‘expert’ opinion, including the opinion of planners who may know nothing and care less about the likely impact of the landfill on local agricultural methods and practices.   Such expert opinion, dignified with the appellation ‘evidence’, always trumps the commonsense objections of ordinary folk with experience but no academic credentials to back them up.  That’s the law.  Hence the Tribunal was ‘unable to give much weight to the Davies’ contrary and non-expert opinions or assertions where they conflict with…expert opinion’.  See paragraphs 16-19 of the Tribunal’s decision (pp. 8-9).

2.     The Tribunal noted the evidence of Nial Stock, SITA’s general manager in WA.  He ‘told the Tribunal that [SITA] had examined in detail other potential sites…east of the Darling Scarp’, and that the company had rejected other sites ‘mostly because of commercial considerations such as transport distance, development costs relative to site characteristics, and land availability, when compared to the current site’.  [Emphasis added.]  The Tribunal observed, while accepting Mr. Stock’s ‘considerable experience in such matters’, that ‘no independent evidence was produced in support of [his] assertions’.  (Decision, paragraphs 94-95, p.29.)

(click to enlarge)

And another thing…

Lately, I’ve been pondering a remark made by local MLA, Mia Davies, minister for water in the Barnett government and deputy leader of the Nationals, during the interview with Jane Marwick broadcast recently on ABC 720.

That was when we discovered that although she had previously said nothing about her concerns to her constituents, she had been strongly opposed to SITA’s proposed landfill all along.

Questioned about her views on the possibility that our water supply might be contaminated with noxious substances leaking from the landfill, Mia declared that she was ‘less nervous’ about this ‘than the community’.

But how nervous is ‘less nervous’?  Did she mean ‘a little bit nervous’, or ‘rather nervous but not that much’, or did she really intend to say ‘I’m not even slightly nervous, and don’t actually give a stuff’?

Because if she was even a teeny bit nervous, wouldn’t that have been sufficient motive to bring pressure to bear on DER to hold off on issuing its Works Approval until she was satisfied that there was absolutely no possibility of contamination?  Is she so satisfied now?

Whatever happened to the precautionary principle?  If such contamination were to occur, it would affect not only York but also every community along the C Y O’Connor pipeline from Mundaring to Kalgoorlie.  Not a happy thought, but such an event would certainly earn Mia and her ministerial colleagues a lurid place in WA history.

Water Minister Mia

Drove to Mundaring Weir,

Down by its green waters her footsteps did stray:

When up popped a lump

Of sludge from York's dump,

That frightened poor Mia—and the voters—away.

*******

COMMENTS—A CHANGE OF POLICY

From the beginning, I have always welcomed comments on this blog.  Comments expressing fierce disagreement with my views have been—and will continue to be—as welcome as comments that are friendly and supportive.

As an old-fashioned libertarian, I believe that freedom of expression is the bedrock of our society and civilisation. A legacy of the European Enlightenment, it is the condition precedent of discovery and innovation in every aspect of our culture. We abandon or restrict it at our peril.

Like many others, I despair at current encroachments on that freedom.  Such encroachments are largely perpetrated nowadays for the sake of ‘not giving offence’.  Freedom of expression means being prepared to tolerate unpopular, unpleasant, even seemingly bigoted opinions.  If it doesn’t mean that, it means nothing.

It follows that I am extremely reluctant to censor comments.  Google doesn’t allow me to edit them, so the choice is publish, delete or suppress as spam.

Up to now, I have tended to err on the side of permissiveness when deciding what to publish, delete or suppress.  This has sometimes resulted, I’m sorry to say, in the publication of comments that have amounted to unfair and unfounded attacks on individuals, attacks that have no bearing on issues that come up for discussion and debate.  In making that admission, I confess that I myself may have sometimes set a dubious example.

At the same time, I acknowledge that it isn’t always possible to separate individuals from their actions, especially when they have abused their authority or influence in the bureaucratic, political or commercial sphere and have made themselves, so to speak, ‘fair game’.

Yet even in those cases, there is a fine line between legitimate criticism and personal abuse—a line that is only too easy to cross.

I don’t want to restrict criticism, but I would much prefer to publish comments that focus on issues rather than personalities. 

So in future, I intend to be a lot more censorious than in the past.  I won’t publish comments that I consider gratuitously abusive, contributing nothing of value to the flow of ideas and opinions taking place on the blog. 

The only exception will (occasionally) be abusive and threatening comments directed at me—if I think I can get some humorous mileage out of them.

Which reminds me—amusing comments will always be welcome, so long as they are good humoured, even if they are a tad irrelevant as happens now and again.

P S: This time, I mean it!