Bird and ANOR and Shire Of Broome and ANOR

Bird and ANOR and Shire Of Broome and ANOR was a legal dispute heard by the Supreme Court of Western Australia. The applicants, Bird and ANOR, challenged the Shire of Broome's decisions to approve the trading licence applications of Red Sun Camels Pty Ltd and to refuse the trading licence applications of the applicants. The dispute centred around the Shire of Broome's local law regulating trading in a public place, specifically the Commercial and Tourism Activity of Cable Beach Policy. The applicants argued that the Shire's decision-making process was flawed and invalid due to the way in which the trading licence applications were assessed and the fees imposed.

The court was required to determine whether the tender constituted an application for approval of trading licences under the local law, whether the application fee and licence fee were properly imposed, and whether the decision to approve the applications was invalid on account of the assessment of applications by reference to the tender price. The applicants argued that the tender process was not a valid application process under the local law and that the Shire had not properly considered the applications on their merits. The Shire of Broome contended that the tender process was a valid application process and that the applications were properly assessed and approved.

The court found that the tender process was not a valid application process under the local law and that the Shire had not properly considered the applications on their merits. The court held that the tender process did not constitute an application for approval of trading licences under the local law and that the application fee and licence fee were not properly imposed. The court also found that the decision to approve the applications was invalid on account of the assessment of applications by reference to the tender price. The court held that the Shire had failed to properly consider the applications on their merits and had instead assessed them by reference to the tender price, which was not a valid factor under the local law.

The court set aside the Shire's decisions to approve the trading licence applications of Red Sun Camels Pty Ltd and to refuse the trading licence applications of the applicants. The court ordered that the matter be sent back to the Shire to permit the Council to reconsider the applications for trading licences generally in accordance with the principles discussed in the reasons given orally on 15 November 2006. The court also ordered that the Council urgently needs to adopt a revised Policy and Selection Criteria and grant applicants the opportunity to address the relevant factors before a final decision is made by the Council. The Council will also need to set valid fees for both applications for trading licences (at least for the future) and for the issue of a trading licence that will apply after it decides which applications to approve in this case. The licence fee should be imposed as soon as possible to ensure applicants know what their fee obligation is before the Council determines the applications. The parties have liberty to apply on short notice.