Edwards and Chief Executive Officer of the Department for Planning And Infrastructure
[2007] WASAT 292
•7 NOVEMBER 2007
EDWARDS and CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2007] WASAT 292
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 292 | |
| JETTIES ACT 1926 (WA),LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA) | |||
| Case No: | DR:90/2007 | 29 & 30 AUGUST 2007 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 6/11/07 | |
| 50 | Judgment Part: | 1 of 1 | |
| Result: | Decisions of the Department and the City affirmed Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRUCE EDWARDS ELIZABETH EDWARDS MARK HAYNES AMBER BRIDGMAN PETER LODDING SHIRLEY LODDING GARY DAVIES CHRISTINE DAVIES LAWRENCE ELLERY BETTY ELLERY BARRY FREEGARD LESLEY FREEGARD JAMESINA GARDEN CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR PLANNING AND INFRASTRUCTURE CITY OF MANDURAH THE OWNERS OF STRATA PLAN 43417 SAN MARCO QUAYS |
Catchwords: | Jetties Jetty licence Planning consent for construction of jetty Proposed jetties located in canal Applicants' properties not adjacent to location of proposed jetties Proposed jetties abut strata title land on which group dwellings are erected Strata council application for jetty licence and planning consent over same area already approved Collateral attack on validity of strata council's approvals Role of Community Association formed to administer the waterways Effect of a jetty allocation plan approved by Community Association Merits of applicants' applications |
Legislation: | Associations Incorporation Act 1987 (WA), s 17 City of Mandurah Town Planning Scheme No 3, cl 7.1, cl 7.4, cl 7.5, cl 7.6 City of Mandurah Town Planning Scheme No 6, cl 1.6, cl 1.7, cl 4.1, cl 5.1, cl 5.3, cl 5.4, cl 5.7, cl 7.4, cl 7.6, Pt IV, Pt V Jetties Act 1926 (WA), s 3, s 4, s 7, s 7(1), s 7(3), s 7(4) Land Administration Act 1997 (WA) Local Government Act 1995 (WA), s 3.1(1) Metropolitan Region Scheme Peel Region Scheme Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 20, s 20(4), s 21, s 26, s 27(1), s 27(2), s 27(3), s 29(3), s 30 Swan and Canning Rivers Management Act 2006 (WA) Town Planning Development Act 1928 (WA), s 2 |
Case References: | Lister and Chief Executive Officer, Department of Planning and Infrastructure [2006] WASAT 304 Spinaway Holdings Pty Ltd v City of Mandurah [2004] WASC 282 |
Orders | 1. The decisions of the Chief Executive Officer and/or the City of Mandurah the subject of these review proceedings are affirmed.,2. The application of each applicant is dismissed.,3. There is no order as to the costs of the proceedings and all parties necessarily bear their own costs of the proceedings. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : JETTIES ACT 1926 (WA)
- LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
- First Applicant
ELIZABETH EDWARDS
Second Applicant
MARK HAYNES
Third Applicant
AMBER BRIDGMAN
Fourth Applicant
PETER LODDING
Fifth Applicant
SHIRLEY LODDING
Sixth Applicant
GARY DAVIES
Seventh Applicant
- CHRISTINE DAVIES
Eighth Applicant
LAWRENCE ELLERY
Ninth Applicant
BETTY ELLERY
Tenth Applicant
BARRY FREEGARD
Eleventh Applicant
LESLEY FREEGARD
Twelfth Applicant
JAMESINA GARDEN
Thirteenth Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
First Respondent
CITY OF MANDURAH
Second Respondent
THE OWNERS OF STRATA PLAN 43417 SAN MARCO QUAYS
Third Respondent
Catchwords:
Jetties Jetty licence Planning consent for construction of jetty Proposed jetties located in canal Applicants' properties not adjacent to location of proposed jetties Proposed jetties abut strata title land on which group dwellings are erected Strata council application for jetty licence and planning consent over same area already approved Collateral attack on validity of strata council's
(Page 3)
approvals Role of Community Association formed to administer the waterways Effect of a jetty allocation plan approved by Community Association Merits of applicants' applications
Legislation:
Associations Incorporation Act 1987 (WA), s 17
City of Mandurah Town Planning Scheme No 3, cl 7.1, cl 7.4, cl 7.5, cl 7.6
City of Mandurah Town Planning Scheme No 6, cl 1.6, cl 1.7, cl 4.1, cl 5.1, cl 5.3, cl 5.4, cl 5.7, cl 7.4, cl 7.6, Pt IV, Pt V
Jetties Act 1926 (WA), s 3, s 4, s 7, s 7(1), s 7(3), s 7(4)
Land Administration Act 1997 (WA)
Local Government Act 1995 (WA), s 3.1(1)
Metropolitan Region Scheme
Peel Region Scheme
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 20, s 20(4), s 21, s 26, s 27(1), s 27(2), s 27(3), s 29(3), s 30
Swan and Canning Rivers Management Act 2006 (WA)
Town Planning Development Act 1928 (WA), s 2
Result:
Decisions of the Department and the City affirmed
Applications dismissed
Category: B
Representation:
Counsel:
First Applicant : Mr B Edwards (Representative)
Second Applicant : Mr B Edwards (Representative)
Third Applicant : Mr B Edwards (Representative)
Fourth Applicant : Mr B Edwards (Representative)
Fifth Applicant : Mr B Edwards (Representative)
Sixth Applicant : Mr B Edwards (Representative)
Seventh Applicant : Mr B Edwards (Representative)
Eighth Applicant : Mr B Edwards (Representative)
Ninth Applicant : Mr B Edwards (Representative)
Tenth Applicant : Mr B Edwards (Representative)
- Eleventh Applicant : Mr B Edwards (Representative)
Twelfth Applicant : Mr B Edwards (Representative)
Thirteenth Applicant : Mr B Edwards (Representative)
First Respondent : Ms C Ide
Second Respondent : Mr C Slarke
Third Respondent : Mr A Drummond (Representative)
Solicitors:
First Applicant : Self-represented
Second Applicant : Self-represented
Third Applicant : Self-represented
Fourth Applicant : Self-represented
Fifth Applicant : Self-represented
Sixth Applicant : Self-represented
Seventh Applicant : Self-represented
Eighth Applicant : Self-represented
Ninth Applicant : Self-represented
Tenth Applicant : Self-represented
Eleventh Applicant : Self-represented
Twelfth Applicant : Self-represented
Thirteenth Applicant : Self-represented
First Respondent : State Solicitor's Office
Second Respondent : McLeods Barristers & Solicitors
Third Respondent : Self-represented
Case(s) referred to in decision(s):
Lister and Chief Executive Officer, Department of Planning and Infrastructure [2006] WASAT 304
Spinaway Holdings Pty Ltd v City of Mandurah [2004] WASC 282
(Page 5)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The applicants applied for jetty licences and planning consent for the construction of jetties in a canal development in Mandurah, Western Australia. The applicants did not own land adjacent to the proposed jetties, but believed that they were entitled to jetties based on contractual arrangements they had entered into with the developer and/or the allocations made by a community association formed to administer the waterways in the development.
2 The land adjacent to the proposed jetties had been developed as a residential strata complex, though the land immediately adjacent to the proposed jetties was subject to a public access easement. The strata council had, at the time of hearing, applied for and obtained a jetty licence and planning consent for the construction of jetties in the same location as the applicants wished to construct their jetties.
3 The Tribunal considered the legislative and factual history of the longrunning dispute and examined the role and actions of the Mandurah Marina Community Association, a body created under the relevant town planning scheme to administer and manage the waterways in the development.
4 The Tribunal also addressed the applicants' collateral attack on the validity of the approvals granted to the strata council. The Tribunal determined that at the time the jetty licence and planning consent were granted to the strata council, it was open to the Department for Planning and Infrastructure and the City of Mandurah to grant the approvals.
5 The Tribunal considered the merits of the applicants' applications in light of the existing approvals granted to the strata council. In light of the decisions granting the strata council the right to develop jetties and moorings, the Tribunal determined that the correct and preferable decision was that the applications of the various applicants be refused. The Tribunal therefore affirmed the decisions of the Department and the City to refuse to grant the applicants' applications.
Issues
6 The issues in these proceedings are:
(Page 6)
- • Whether the various applicants are entitled to jetty licences from the Department for Planning and Infrastructure (Department) (first respondent) and planning approvals from the City of Mandurah (City) (second respondent) permitting them to construct jetties on the sea bed of the estuary at Mandurah, adjacent to a strata development known as San Marco Quays, the strata council of which is the third respondent (Strata Council).
• In order to determine this issue it is also necessary to determine a collateral attack made by the applicants concerning the legal validity of a planning approval granted by the City to the Strata Council and a jetty licence granted by the Department to the Strata Council. The question of the legal validity of these grants of approval and licence are important to the applicants' case for review because the approval and licence permit the Strata Council to construct jetties in the sea bed area adjacent to the strata development. If the moorings to which the Strata Council currently has an entitlement are valid, it is generally agreed that there is little room left in that sea bed area for the construction for any additional jetty or jetties and accompanying moorings.
• Nonetheless, in the event that the Tribunal were to find that the Strata Council's approval and licence are valid, a final issue remains whether, on the merits of the case, the applicants are also entitled to have approvals and licences.
Facts
7 The background to these proceedings stretches over some 14 years, from the creation of City of Mandurah Town Planning Scheme No 6 (TPS 6) to facilitate a canal development, then known as the Mandurah Marina Estate, until its repeal. As explained in greater detail below, TPS 6 was gazetted on 15 August 1995 and repealed on 23 February 2007.
8 The Mandurah Marina Estate seems to have been a description accorded by the initial developer, Mr William Woolley, to lots both within the scheme area of TPS 6 and nearby to that scheme area.
9 At certain material times, the land constituting the San Marco Quays strata development (lot 190) was within the scheme area of TPS 6 and the land of the various applicants was outside the scheme area although in some cases quite close to the boundary.
(Page 7)
10 Land in the scheme area of TPS 6, and the other land in the Mandurah Marina Estate, was also affected at material times by City of Mandurah Town Planning Scheme No 3 (TPS 3) - the district zoning scheme or its predecessor scheme.
11 As explained in greater detail below, some of the applicants or their predecessors in title appear to have purchased their lots with a belief or understanding that they had or would have entitlement to obtain a mooring on a jetty in the nearby canal development. Some consider the right to a mooring was later conferred on them by the Mandurah Marina Community Association (MMCA).
12 At the material times the applicants or their predecessors in title purchased their lots, lot 190 was marked on a map attached to TPS 6 as "Commercial". That same map also generally depicted proposed jetties in the "embayment" or waterway (or canal) on the northern side of lot 190.
13 In the course of the development of the land within TPS 6, entities associated with the late Mr Woolley experienced financial difficulties. One result of this was that a company, Spinaway Holdings Pty Ltd (Spinaway), purchased lot 190. Spinaway then proposed the residential development of lot 190 in the year 2000 by way of a strata subdivision. This was eventually approved under the relevant laws.
14 From that point on a tussle, at times a battle, and at all times difficulties, ensued between the interests associated with lot 190 and the interests of persons outside the TPS 6 scheme area, including the applicants, as to who was entitled to build jetties and maintain moorings in the waterway on the northern side of lot 190. These proceedings are the culmination and ultimate expression of those difficulties.
15 The difficulties in large part have arisen out of the operation of the MMCA, an association effectively required by TPS 6 to assist in the management of the canal development, about which more is said below.
16 As noted above, on 23 February 2007, TPS 6 was revoked and with it went the MMCA. However, not long before its revocation, on 30 January 2007, the Strata Council was successful in obtaining planning approval from the City for its jetty proposal. The Strata Council had earlier, on 1 November 2006 obtained a jetty licence from the Department to build the jetties and associated moorings that it proposed. These decisions rather dented the hopes and aspirations of the applicants for jetties and moorings. Their applications were at various times thereafter refused.
(Page 8)
17 There is, however, an interleaf to this story, and that is that in September 2006 Ms Robyn Lister, who owned a lot outside the scheme area of TPS 6, but immediately adjacent to the disputed waterway to the north of lot 190, satisfied the State Administrative Tribunal (the Tribunal) in review proceedings that she should be granted a jetty licence (with two moorings), notwithstanding the earlier refusal of the Department to grant her one: see Lister and Chief Executive Officer, Department of Planning and Infrastructure [2006] WASAT 304.
18 The applicants in these proceedings rely on the Tribunal's earlier decision in favour of Ms Lister and say that they too should be granted licences of a similar nature. There are, however, some material differences between the circumstances that applied when Ms Lister's case was determined and those that apply now. TPS 6 has now been revoked and the Strata Council has now been granted its licence and approval to construct jetties with associated moorings. Thus, as explained earlier, the attack by the applicants on the legal validity of the approval of the licence and approval granted to the Strata Council by the Department and the City.
19 These reasons will now deal in a little more detail with the origins of the canal development, the terms of TPS 6, the operation of the MMCA, the claims of the applicants or some of them to an existing entitlement to construct a jetty adjacent to the strata development, notwithstanding the current entitlement of the Strata Council to construct jetties and moorings in the same sea bed location, and the reasons of the Department and the City for refusing the applications.
Decision-making context as to construction of the jetties in canal area
20 As at the date of determining this review application the proposals of the applicants to construct jetties in the canal area immediately north of lot 190 require approval under the Jetties Act 1926 (WA) (Jetties Act) and under TPS 3. It is not unusual that a proposal to use or develop land or a resource may require approval under more than one Act.
21 So far as the Jetties Actis concerned, as the long title of the Act explains, it is an Act to provide for the construction, maintenance and preservation of jetties and other works, and to make better provision for securing and regulating the use and management of jetties.
(Page 9)
22 Section 7 of the Jetties Act permits the Chief Executive Officer of the Department for Planning and Infrastructure to grant a licence on such terms and conditions as they see fit to any person for the erection or construction of a jetty or for the maintenance and use of any jetty. A "jetty" includes a "private jetty": see definitions of these terms in s 3 of the Jetties Act.
23 The full terms of s 7 are as follows:
"(1) The chief executive officer may grant a licence on such terms and conditions as he thinks fit to any person for the erection or construction of a jetty or for the maintenance and use of any jetty.
(2) The chief executive officer may by instrument in writing signed by him delegate to the an [sic] officer the power conferred on him by subsection (1).
(3) Where the erection or construction of a jetty is required to be approved under the Swan and Canning Rivers Management Act 2006 section 70 or under the Metropolitan Region Scheme as that term is defined in the Planning and Development Act 2005, a licence shall not be granted under this section
(a) unless that approval has been granted;or
(b) on any term or condition that is contrary to or inconsistent with an approval so granted.
(4) If an approval referred to in subsection (3) has been granted for the erection or construction of a jetty, a licence shall not be refused under this section but may be granted, in accordance with subsection (3)(b), subject to compliance with any condition."
24 In this case, the applicants do not require any approval under the Swan and Canning Rivers Management Act 2006 (WA) or under the Metropolitan Region Scheme, so subsections (3) and (4) are not directly relevant.
25 The Department, through counsel, notes that the Jetties Act only provides minimal guidance as to what considerations the decision-maker may have regard to when considering an application for a jetty licence.
(Page 10)
- Counsel points out that the long title of the Act suggests that criteria to which the decision-maker ought to have regard pertain more to ensuring that a jetty is appropriately constructed from a safety point of view and will not cause any navigational hazards.
26 In those circumstances, the Department concedes, at least for the purposes of this case, that whether or not the jetty proposals of the applicants have received planning approval under TPS 3 from the City of Mandurah or under TPS 6 from the MMCA, is not relevant to the exercise of the power to grant a licence under s 7 of the Jetties Act.
27 I consider there is merit in the primary submission made on behalf of the Department. Section 7(3) and s 7(4) of the Jetties Act, although not directly relevant here, address the question of how the power to grant a jetty licence should be exercised where approval is required in certain other cases, including where it is required under the Metropolitan Region Scheme for planning purposes. In those express situations, s 7(3) makes it clear that a jetty licence cannot be granted unless there is an approval under those other Acts or if any term of the licence is inconsistent with such other approval. This rather suggests that in cases where s 7(3) is not applicable, there is power to grant a licence notwithstanding the non-existence of planning approval where it is required. In turn this suggests that in cases where s 7(3) does not apply, planning considerations or other considerations arising in the exercise of approval powers under other legislation are not of direct relevance to the exercise of the power to issue a jetty licence.
28 Accordingly, I consider there is merit in the proposition that the decision-maker in exercising the power to grant a jetty licence under s 7(1) of the Jetties Act is primarily concerned with matters of construction and navigation safety. Nonetheless the Tribunal would not wish to rule that other considerations, including planning issues, may not, in particular circumstances, be relevant to the exercise of the power under s 7(1).
29 It should also be noted that it is not unusual, where there are a number of approval requirements in respect of a proposed activity, for one decision-maker to grant an approval subject to the grant of another, related approval.
30 The question of planning consent arises in this case because TPS 3 which is the City's district zoning scheme - includes within its scheme area the land within the TPS 6 scheme area, including the sea bed in which the proposed jetties would be erected.
(Page 11)
31 Clause 7.1 of TPS 3 deals with the requirement of planning approval, subclause 1 of which provides as follows:
"In order to give full effect to the provisions and objectives of this Scheme, all development, including a change in the use of land, except as otherwise provided, requires the prior approval of the Council in each case. Accordingly, no person shall commence or carry out any development, including a change in the use of any land, without first having applied for and obtained the planning approval of the Council pursuant to the provisions of this Part."
32 Clause 7.1.2 provides that planning approval is not required in a number of prescribed cases. None of these prescribed cases is relevant to the proposed jetty development.
33 Clause 7.4 enables the Council to consult with any other statutory, public or planning authorities and with any party it considers appropriate.
34 Clause 7.5.1 specifies a number of matters to be considered by the Council when considering an application for planning approval. These include the following:
"(a) the provisions of this Scheme and any other relevant town planning scheme operating within the district;
…
(g) the requirements of orderly and proper planning;
(h) any relevant submissions or objectives received on the application;
…
(q) whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land;
(Page 12)
- …
(x) the existing and likely future amenity of the neighbourhood;
(y) the public interest; and
(z) any other planning considerations which the Council considers relevant."
35 Under cl 7.6 the Council may grant its approval with or without conditions, or refuse to grant its approval.
36 Prior to its repeal on 23 February 2007, the relevant waterway was also within the scheme area of TPS 6. TPS 6 was known as the Mandurah Marina Waterway Management Scheme. Under TPS 6, the approval of the MMCA was required prior to any mooring being established within the waterway adjacent to lot 190, in addition to any approval necessary under any other written law: see cl 7.4.1 and cl 7.6 of TPS 6. More is said about TPS 6 and this requirement below.
The origins of the canal development
37 Mr Tony Free, Director of Sustainable Development at the City of Mandurah, gave evidence in the proceedings and explained something of the history of the Mandurah Marina Estate and canal development. He was well qualified to do this as he has been employed at the City since 1996. He explained that in 1993 the Council of the City initiated an amendment (Amendment No. 191) to its then operative district zoning scheme, City of Mandurah Town Planning Scheme No 1A, to facilitate the development of a "private" waterway system and residential subdivision in an area of the Mandurah Estuary. Amendment No. 191 was carried through to the present TPS 3. Under TPS 3, the waterways within Mandurah Marina Estate and the abutting lots are (for the most part) relevantly zoned "Canal".
38 While the City was supportive of the concept of canal development, there were many unknowns at the time the idea was first proposed regarding the ongoing management requirements for the proposed canals and associated costs. The City was reluctant to permit the creation of canals or waterways that would be Crown land in relation to which the City would become responsible for care, control and management under the Land Administration Act 1997 (WA), when the extent of problems that
(Page 13)
- might arise with respect to matters such as structural integrity of canal walls, sedimentation, eutrophication, and algal blooms were unknown.
39 The solution fixed upon by the City in conjunction with the developer was to create a town planning scheme that dealt specifically with the Mandurah Marina Estate development. That scheme became TPS 6.
TPS 6: its purpose and key provisions
40 As noted above, TPS 6 was gazetted on 15 August 1995. The scheme area was shown on the scheme map as an area within the broken black lines marked on it. It included a site now lot 190 which was then marked as "Commercial". The adjacent waterway to the north of what is now lot 190, where the applicants desire to construct jetties alongside that proposed by Ms Lister - and in place of, or alongside, those proposed by the Strata Council - was marked as an "embayment". The embayment was plainly within TPS 6. To similar effect, a proposed canal or waterway on the southern side of what is now lot 190, was also within the scheme area of TPS 6.
41 TPS 6 dealt with preliminary matters, subdivision, development, initial management by the "Developer", the "Community Association", a maintenance fund and general matters. The Developer was defined by cl 1.7 to be Hudson Court Nominees Pty Ltd (the entity associated with Mr Woolley) or the transferee, assignee or successor of that company which had undertaken the responsibility of developing the Mandurah Marina Estate. TPS 6 was drafted on the understanding that subdivision approval, and the development approval required under existing laws and schemes, were relevant to the implementation of TPS 6.
42 Part IV of TPS 6 provided, in essence, that the Developer would be responsible for the monitoring, maintenance and repair of the "Waterways" as defined, for five years following the date of practical completion of the construction of the waterways. The term "Waterway" was defined by cl 1.7 to mean any artificial channel, lake, harbour, or embayment within the scheme area which was intended for use for navigation, ornamental and recreational purposes or for any of those purposes.
43 The City determined the date of practical completion of the waterways to be 1 October 1996. Following expiry of the five year period in which the Developer maintained responsibilities, the Community Association established under Pt V of TPS 6, was to take over financial and management responsibilities for the waterways.
(Page 14)
44 Clause 4.1.3 of TPS 6 set out the full details of the circumstances in which the Developer's liability ceased to continue.
45 Clause 5.3.1 set out how, upon completion of the Developer's responsibilities, the Community Association should become and remain responsible for the ongoing responsibility of the waterways in accordance with the Environmental and Waterways (Ongoing) Management Program provided for by TPS 6.
46 The Community Association was defined by cl 1.7 to mean the Mandurah Marina Waterway Management Association (Inc) or an association under a different name but having the responsibilities of the Community Association provided for in the scheme.
47 Part V provided for the establishment of the Community Association. By cl 5.1.2 the Community Association was to be incorporated under the Associations Incorporation Act 1987 (WA) with a constitution "satisfactory to the Council". The "Council" was defined by cl 1.7 to mean the City of Mandurah.
48 Membership of the Community Association was dealt with in cl 5.4. Clause 5.4.1 dealt with 'Eligibility' for membership in the following terms:
"The Constitution and/or Rules of the Community Association shall provide inter alia that the membership of the Community Association shall be open to every person who is an Owner of a Lot within the Scheme Area, and shall provide that a person who has contracted to purchase a Lot shall be entitled to membership of the Community Association either of the same class, grade or status an Owner or otherwise."
49 Clause 1.7 defined a "Lot" to mean a lot within the meaning of that term in s 2 of the Town Planning and Development Act 1928 (WA); and defined "Owner" to mean an owner of an estate in fee simple in possession of any land or a strata lot within the "Scheme Area". The scheme area was the land within the broken black lines on the map attached to TPS 6.
50 Clause 5.4.2 dealt with 'Rights' and provided:
(Page 15)
- "The Constitution and/or Rules of the Community Association shall subject to any necessary approval of the Department ensure that any financial member and that the members of the family and any servant or agent or invitee or licensee of the financial member enjoys the following rights amongst any others which the Community Association is able and considers proper to confer:
(a) the right to use any mooring as specified by the Community Association;
(b) the exclusive right to the use of any mooring within the mooring envelope of that member's Lot; and
(c) the right of access to and use of any part of the Waterways subject to any by-law or direction of the Community Association."
51 The establishment of moorings was dealt with by cl 5.4.3 in the following terms:
"The Community Association shall subject to any necessary approval of the Department have the right and may by its Constitution and/or Rules or by a by-law or otherwise provide for the establishment of a mooring adjacent to or within the mooring envelope of any Waterway fronting a Lot the Owner of which is not a financial member of the Association."
52 Clause 5.4.4 dealt with persons not financial members in these terms:
"Any Owner who is not a financial member of the Community Association shall in that part of any Waterway adjacent to any part of the Owner's Lot:
(a) maintain the structure of the bed of the Waterway in accordance with the Construction Standards;
(b) monitor and maintain water quality in accordance with Construction Standards;
(c) maintain the water depth of the Waterway against the effects of siltation; and
(d) establish and maintain a liaison with the Waterways Commission and the Department in relation to the
- aforesaid and any other matters touching upon the water quality and the structure of the Waterway adjacent to the Owner's Lot,
- PROVIDED THAT the Owner may make such financial or other arrangements acceptable to the Community Association for the Community Association to carry out all or any of those obligations on behalf of the Owner."
53 The balance of cl 5.4 dealt with obligations on every owner of a lot to contribute to the cost of maintaining the waterways, the water quality and the depth of the waterways (cl 5.4.5); to become a member of the Community Association after buying in (cl 5.4.6); the time for payment of contributions (cl 5.4.7); the recovery of contributions by the Community Association (cl 5.4.8); advice to prospective owners (cl 5.4.9); and for Council representatives on the Community Association committee (cl 5.4.10). As to the latter provision, by cl 5.4.10.1, the Council could, from time to time, nominate a member of the Council to be an ex officio member of the Committee of the Community Association. The representative was to be treated by the Community Association as a member of the Committee.
54 Clause 5.7.1 made special provision should the Community Association be dissolved. It enabled the Council to undertake the responsibility for the care, control and management of waterways and to enforce the provisions of TPS 6 in relation to the waterways in the event the Community Association failed to discharge its responsibilities. Clause 5.7.2 prevented the Community Association, in effect, from dissolving the Association without the prior approval of the Council.
55 Clause 7.4.1 of TPS 6 created a prohibition in these terms:
"A person shall not erect, alter or add to or commence to erect, alter or add to a building or part of a building and shall not except for the purpose of repairing to its former condition damage alter or remove any part of the wall or the bed of the Waterways and shall not interfere with any mooring established or approved by the Community Association:
(a) otherwise in accordance with the provisions of the Scheme;
(b) unless all consents required by the Scheme and the district zoning scheme including any necessary approvals
- of the Developer, the Community Association or the Council have been granted and issued;
- (c) unless any conditions imposed upon the grant or issue of any consent has been and continues to be complied with;
(d) unless all standards and provisions of the Construction Standards and the Design Guidelines and any other standard or requirement imposed by the Council pursuant to the Scheme in respect of any building development or other work carried out in the Scheme Area has been and continues to be complied with."
56 Clause 7.6 then expressly dealt with licensing or approval of moorings, in these terms:
"The requirement of the Community Association to approve of the establishment of any mooring in the Waterways is additional to any other obligation arising under any other written law in relation to the licensing or approval of any jetty or other structure in, over or adjacent to the Waterways."
57 TPS 6 in substance contemplated that the Community Association would hold all relevant authorities - such as a lease of the sea bed, jetty licences and planning approvals - and would control the allocation of moorings to members of the Community Association.
MMCA and the jetty allocation plan
58 In conformity with the requirements of TPS 6, the MMCA was established as an incorporated association under the Associations Incorporation Act 1987. It held its first meeting in May 1999. The Minutes of that meeting suggest that a former City of Mandurah officer (Mr Bob Brindley) was present and presented a mooring and jetty plan which was said to have recently been approved by the City of Mandurah. Whether or not this was the same plan as that called the "MP Rogers" plan referred to by the applicants and others, the plan called the MP Rogers plan was adopted by the MMCA at a special general meeting on 14 June 1999. I will simply refer to the plan as adopted, as the "jetty allocation plan".
59 Mr Free in his evidence says that he has been unable to find any record of the City approving a jetty allocation plan. TPS 6 did not require the City expressly to approve such a plan, but one can understand the City
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- would have had an interest in the plan as they expected to be called on to consider the grant of a sea bed lease and planning approval to the MMCA to facilitate jetties and moorings at some time thereafter.
60 The jetty allocation plan adopted by the MMCA in June 1999 contemplated the creation of seven jetties (with 14 moorings) in the waterway on the northern side of lot 190. In his witness statement (Exhibit 21, page 5) Mr Free suggests that the jetty allocation plan allocated one of the northern moorings to the commercial site (now lot 190) and the other 13 to lots other than lot 190. The jetty allocation plan indicated that all of these moorings were allocated to lots other than lot 190. It depicted 13 as allocated to lots north of lot 190, and one as allocated to a lot south of lot 190 which was also outside the TPS 6 scheme area (lot 123). Mr Free says that he understands that two of the moorings previously allocated to non-lot 190 owners (being those previously allocated to lot 123 and lot 212 within the Mandurah Marina Estate subdivision) were at some stage re-allocated or made available for use by lot 190 owners. (The jetty allocation plan also contemplated the creation of seven moorings on the southern side of lot 190.)
61 There are today two other jetties adjacent to lot 190 which extend into the Peel Inlet or estuary. Mr Free in his evidence said he understood that the larger jetty in the estuary to the north is for the common use of all owners within lot 190, whereas the smaller jetty in the estuary to the south is for the exclusive use of one of the strata lot owners within lot 190 who had previously obtained a jetty licence. This was confirmed by other evidence during the hearing of this matter. The MMCA was not involved in the establishment of these jetties.
62 Mr Free summarised his understanding of the position as follows:
• The jetty allocation plan provided for 21 moorings in total adjacent to lot 190 (not including the two jetties in the estuary).
• Seven jetties and 14 moorings were proposed for the northern side of lot 190.
• Of the 14 northern moorings, all were originally allocated to lots without a frontage to a waterway within the TPS 6 area. Lots 191, 192, 193, 195, 196 and 198 (which together are allocated seven moorings) have frontages to the foreshore reserve abutting the Peel Inlet.
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- • Ten moorings (three to the north and seven to the south) would therefore be available for the 31 strata lot owners within lot 190 who do not presently have access to a jetty, in the event jetties adjacent to lot 190 were to be constructed in accordance with the jetty allocation plan.
63 Mr Free points out that he is aware that lot 190 strata owners take the view that the jetty allocation plan as adopted in 1999 is not valid. However, the City took the position that it would accept the jetty allocation plan as valid until a court or tribunal determined otherwise.
64 Mr Free's position is, in any event, that any technical questions about the validity of the jetty allocation plan were not important, because TPS 6 did not require the adoption of a jetty allocation plan. TPS 6 only required that the MMCA approve the establishment of any moorings in the waterway.
65 Mr Free said, speaking for the City, that even if there were some informality in the method of adoption of the jetty allocation plan which might make it technically invalid, at the time the City determined the various development applications the subject of these proceedings, it still represented the approvals that the MMCA had given for the construction and allocation of moorings for the purposes of TPS 6.
66 As to the activities of the MMCA over time, the Strata Council says that a number of resolutions of the MMCA were invalid. The Strata Council says that at the MMCA special general meeting of 14 June 1999, membership of the Community Association was supposedly expanded to include those living in the Mandurah Marina Estate outside the TPS 6 area, and the Constitution "was supposedly changed accordingly". The Strata Council says the MMCA also voted at this point to change the mooring plan from that initially indicated in the map attached to TPS 6, to the jetty allocation plan. This provided for moorings to be given to persons living outside the TPS 6 scheme area but within the Mandurah Marina Estate (which the Strata Council, and others, call the "dry lot members", which term is taken from the MMCA Rules as amended).
67 It should here be noted that the June 1999 changes to the Rules were not approved by the City until 20 July 1999. As noted above, cl 5.1.2 of TPS 6 required the constitution to be "satisfactory to the Council".
68 The Strata Council says that on 12 December 2001, an MMCA general meeting purported to ratify the changes made in 1999, including ratification of the jetty allocation plan, following legal advice, to overcome any legal deficiencies in the earlier amendment process. That advice was to the effect that although various amendments to the
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- Rules were agreed to by the association at its meeting held on 14 June 1999, because the amendments were not made in accordance with s 17 of the Associations Incorporation Act 1987, they did not have the effect of amending the Rules: see advice of McLeods Barristers & Solicitors, Attachment SM 5 to the Statement of Issues, Facts and Contentions of the Strata Council, Exhibit 8, at page 4 of the letter.
69 Arguably, the earlier mooring allocation decisions of the MMCA were invalid for TPS 6 purposes. However, following Council approval of the changed Rules and lodgement with the relevant government agency, the MMCA ratified the earlier amendments to the Rules as well as the earlier jetty allocation plan.
70 The Strata Council's view has remained that the jetty allocation plan was invalid at material times due to the way the Rules were amended. In this regard, it may be useful to review a little of the early history of the MMCA.
71 On 10 May 1999, the Community Association held its first meeting. The owners of 26 lots were present in person or had completed proxies. These lots were a mix of waterfront and non-waterfront lots, TPS 6 and non-TPS 6 lots. The Minutes (Exhibit 52, Document 7) note that only seven lots were recognised as conferring membership rights on their owners under the Rules of Association, as they then stood that is to say, only seven lots were TPS 6 lots (see cl 5.4.1, TPS 6).
72 There is no clear record of whether the membership provision was amended at this meeting. The Minutes state "[a]pplications from eligible members were accepted enabling [all of the landowners in the Mandurah Marina Estate] to stand as the members of the Association" (page 1). The Minutes also note that the decisions on the proposed amendments to the Rules were deferred to the June meeting so that the "membership qualifications could be widened … and a decision made by a more representative group" (page 3). These statements suggest that the membership provision was amended at the first meeting, although there is no formal record of such a motion.
73 On 14 June 1999, the MMCA held a meeting to consider the "Special Resolutions" (Exhibit 52, Document 10) which proposed amendments to the Rules. The amendment to the membership provision was listed as one of the Special Resolutions.
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74 The Minutes of the June 1999 meeting (Exhibit 52, Document 11) note that the owners of 42 lots were present in person or had completed proxies at the meeting of 14 June 1999. All of the seven TPS 6 lots were again represented.
75 The Special Resolutions were moved and passed unanimously (page 2). While it is not clear whether the owners of non-TPS 6 lots, many of whom were present at the meeting, voted on the motion, that is not, ultimately, relevant. The motion to approve the Special Resolutions was moved and seconded by two owners of TPS 6 lots. As the motion was passed unanimously, it is clear that all the owners of TPS 6 lots approved the amendments to the Rules. If the membership amendment was not in fact passed at the earlier meeting on 10 May 1999, and the non-TPS 6 lot owners purported to vote on the motions, their 'votes', even if counted at the meeting, can effectively be disregarded.
76 The Rules were amended by a majority of the members of the MMCA, whether that majority included the non-TPS 6 owners or not, and whether the membership provision was amended on 10 May 1999 or 14 June 1999. The main issues concerning validity that remained were whether the amendments to Rules had been properly processed under the Associations Incorporations Act 1987, and whether the City had expressed its satisfaction with the changes. As noted above by December 2001, these omissions were rectified and the jetty allocation plan was confirmed by the MMCA.
The Spinaway litigation in the Supreme Court
77 In October 2000, Spinaway purchased lot 190. In 2001, it gained strata subdivision approval for the development of 32 units on lot 190. This development did not require rezoning of the land as the proposed development was one capable of approval under the existing zoning under TPS 3 and TPS 6.
78 In 2003 Spinaway as the registered proprietor of lot 190 commenced proceedings in the Supreme Court of Western Australia against the City and the MMCA. Spinaway sought various declarations including: that it was the Developer as that term was defined in cl 1.7 of TPS 6; that it was entitled to a lease of the sea bed in the waters adjacent to lot 190; and that the jetty allocation plan was invalid. If it had succeeded in this action, Spinaway would have been able to create moorings for the owners of lot 190 without regard to the MMCA and the jetty allocation plan.
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79 The City denied that Spinaway was a successor Developer to the original Developer. The MMCA asserted that its jetty allocation plan was valid and that it had the right to approve moorings in the adjacent waterways.
80 The Spinaway proceedings were determined by Commissioner Braddock SC on 23 December 2004: Spinaway Holdings Pty Ltd v City of Mandurah [2004] WASC 282. The learned Commissioner concluded that Spinaway was not the Developer as defined. The Commissioner also found that Spinaway had no right to demand a lease of the sea bed. The Commissioner also found that Spinaway had failed to make out a basis for a declaration that the jetty allocation plan was invalid.
81 Despite her findings, the Commissioner noted that there would appear to be no reason to prevent Spinaway seeking permission from both the City and the MMCA to establish jetties or moorings on the reserve Crown land that is the bed of the waterways. The Commissioner stated that Spinaway could construct jetties where the MMCA permits but not otherwise: at [42].
82 In her reasons at [49], the Commissioner noted that cl 10.2 of the Rules of the MMCA stated:
"The Association may grant rights to use the jetties or moorings on such terms and at such cost as … the Executive Committee shall determine provided that the order of priority in the granting of such rights shall ordinarily be as follows:
(i) wet lot members who are owners of land within the Scheme Area and who seek the use of a jetty or mooring that they have constructed or may construct adjacent to or abutting that land;
(ii) jetty members who are owners of land outside the Scheme Area who have lawful access to an available jetty or mooring;
notwithstanding that a jetty or mooring site may be established in a place which is adjacent to the land of a non-member owner of land within the Scheme Area."
83 No party suggested this clause was invalid; nor did the Commissioner say it was. However, the Commissioner did not proceed to positively find that the plan was valid. Rather, she had regard to the history of the matter and the
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- fact that Spinaway had knowledge of the jetty allocation plan prior to receiving permission to undertake the strata subdivision of lot 190. At [50] of her reasons for decision, the Commissioner stated there was "no basis for a declaration that the Plan is not binding upon the plaintiff … and the history would indicate that there could not be as the plaintiff was aware of the situation."
84 As it transpires, the Spinaway litigation was but the commencement of a growing dispute concerning the entitlement of owners of lots outside the TPS 6 scheme area to build jetties or to have rights to use jetties or moorings available within the TPS 6 scheme area.
The applicants' land and expectations concerning jetty entitlements
85 The following table shows when the applicants each applied for a licence and approval and when it was refused by the City and the Department.
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86 It should be noted that there is some confusion over when the application of Mr and Mrs Freegard was refused. I have adopted the date given by Mr Jenkins (Exhibit 19, page 7).
87 Mr Mark Haynes and Ms Amber Bridgman did not lodge an application for planning approval with the City, though they did lodge an application for a building licence on 24 January 2006.
88 Ms Jamesina Garden did not lodge an application for planning approval with the City. Her action against the City, CC 911 of 2007, was therefore dismissed by the Tribunal on 14 August 2007, though the Tribunal gave Ms Garden leave to make submissions in relation to the City.
89 Each of the applicants is the owner of a lot outside the TPS 6 scheme area. Some abut a waterway, in that their lot is adjacent, across reserved land, to the Peel Inlet. Others do not have any frontage to a waterway.
90 As noted above, the rules of the MMCA, as amended on 14 June 1999 and confirmed or amended as of 12 December 2001, by cl 7 create three categories of member of the Association:
• the "wet lot members" being lot owners who abut a waterway "within the Mandurah Marina Estate";
• the "Jetty members" who are lot owners not adjacent to a waterway but otherwise within the Mandurah Marina Estate to whom the Executive Committee is otherwise willing to grant a jetty sub-licence for a jetty in the Mandurah Marina; and
• the "dry lot members" being every other person who is not otherwise a wet lot member or a Jetty member and who owns a lot in the Mandurah Marina Estate.
91 The Mandurah Marina Estate was not defined by the Rules. However, it was referred to in TPS 6. For example, cl 1.6 said the object of the scheme was to provide for the short and long term management of the waterways contained within the "Mandurah Marina Estate". However, cl 1.7 which defined many terms did not say exactly what the Mandurah Marina Estate area was. The scheme area of TPS 6, from the evidence the Tribunal has received, was merely part of the Mandurah Marina Estate. It is generally accepted that the applicants in these proceedings all live
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- within the Mandurah Marina Estate although they do not own lots within the TPS 6 scheme area.
92 Clause 10 of the Rules of the MMCA as amended dealt expressly with jetties and moorings and provided as follows:
"10.1 Subject to the approval of the Department and any other person or body corporate where required by law and subject to any by-laws of this Association as to the manner of establishment, the Association may establish jetties and other moorings within the waterway.
10.2 The Association may grant rights to use the jetties or moorings on such terms and at such cost as to [sic] the Executive Committee shall determine PROVIDED THAT the order of priority in the granting of such rights shall ordinarily be as follows:
(i) Wet lot members who are owners of land within the Scheme Area who seek the use of a jetty or mooring they have constructed or may construct adjacent to or abutting that land;
(ii) Jetty members who are owners of land outside the Scheme Area who have lawful access to an available jetty or mooring;
notwithstanding that a jetty or mooring site may be established in a place which is adjacent to the land of a non-member owner of land within the Scheme Area."
94 At the time of the adoption of the jetty allocation plan a number of persons who had purchased lots in the Mandurah Marina Estate, but outside the scheme area of TPS 6, believed as a result of contractual arrangements they had entered into with the vendor and/or the allocations made by the jetty allocation plan, that they would be entitled to a mooring on a jetty constructed or to be constructed by the MMCA.
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95 At the time of the adoption of the jetty allocation plan the following applicants (or their predecessors in title) seem to have been treated by the MMCA as falling within one or other of the categories referred to in cl 7 of the Rules and were allocated moorings under the jetty allocation plan as follows:
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96 Accordingly, by the time Spinaway acquired title to lot 190 in October 2000, people such as the applicants and Ms Robyn Lister held the expectation that they would in due course have mooring rights as depicted on the jetty allocation plan.
97 At that earlier time the general expectation also was that the MMCA would assume responsibilities for the waterways as provided for in TPS 6 and that the lease of the bed of the waterways would be granted to the MMCA by the City. Negotiations to achieve that outcome were then underway. Therefore, the MMCA would apply for and hold a relevant lease, and jetty licence or licences, and would allocate sub-licences and/or mooring rights to individual owners of lots as contemplated by cl 7.4.1 and cl 7.6 of TPS 6.
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The Strata Council's expectations and entitlements concerning jetties
98 It seems that once Spinaway obtained title to lot 190 and approval to develop the land for residential strata units, the contest for scarce mooring rights developed apace.
99 It quickly enough became apparent to Spinaway that the owners of strata lots on lot 190 could not reasonably hold the expectation of gaining a mooring in the embayment immediately to the north of lot 190 if the jetty allocation plan were to remain in place. That explains the proceedings in the Supreme Court. As noted above, the Supreme Court rejected the contentions of Spinaway that it held the rights of the Developer under TPS 6 and that the jetty allocation plan was invalid.
100 The Spinaway litigation did not resolve the future entitlement of the strata lot owners to construct jetties or to have access to moorings. On the face of it, the strata lot owners needed to engage with the MMCA to protect or secure their interests in moorings. As the submissions of the Strata Council in these proceedings correctly state, Spinaway lost the Supreme Court action in which it claimed it was the Developer under TPS 6 and so did not have an automatic right to a sea bed licence which it needed before it could own and build jetties.
101 As the Strata Council points out, after this, various dry lot members of the MMCA and then strata owners individually sought jetty licences and building approvals from the Department and the City. However, difficulties were then encountered. Questions were then raised whether the City could only grant a sea bed licence, grant planning approval and support the grant of jetty licences to persons who had the requisite approval of the MMCA under TPS 6. For a period these questions caused consideration of applications to come to a standstill.
102 In late 2005, the Strata Council lodged a jetty licence application for 31 moorings, on behalf of the strata owners. It also sought planning approval from the City for this work.
103 At a meeting of the MMCA in January 2006, the MMCA failed to approve the jetty and mooring proposal of the Strata Council. However, the meeting also voted that dry lot members should not have moorings at lot 190 within the jetty plan proposal put forward by the Strata Council.
104 In the event, the Department granted a jetty licence to the Strata Council on 1 November 2006 for 29 moorings, two less than the 31 in the plan submitted for approval. The reason two fewer were granted is that,
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- in the meantime, Ms Lister had succeeded in her review proceedings in the Tribunal and had obtained an order that she be granted a jetty licence with two moorings. The Department therefore approved a licence for nine jetties with 29 moorings in favour of the Strata Council.
The decision in Lister and Chief Executive Officer, Department of Planning and Infrastructure
105 On 29 September 2006 the Tribunal, constituted by Senior Member Mr DR Parry, made a decision upholding the application of Ms Lister for review of the decision of the Department not to grant her a jetty licence in the waterway to the north of lot 190.
106 The decision of the Tribunal in the proceedings commenced by Ms Lister was significant for a number of reasons. First, it analysed and took a particular view of the entitlement of a person to have a jetty licence and moorings within the embayment to the north of lot 190 within TPS 6, where the person owned a lot outside the TPS 6 scheme area. Secondly, the effect of the decision was to cause the Department to review its approach to the exercise of the power to grant a jetty licence under s 7 of the Jetties Act. Until that time it had taken the view that the planning issues and the issues arising under TPS 6 involving the approval of the MMCA needed to be resolved before it could, or should, exercise the power to grant a licence. After the decision of the Tribunal in the Lister case, the Department, on advice from the State Solicitor's Office, took the view that broader planning issues should not concern it, and that it should treat an application for a jetty licence on its merits regarding only construction safety and navigation safety issues. Thirdly, following the Tribunal's decision in the Lister case, the City took the view that it was not bound by any decision of the MMCA purportedly made under TPS 6 to allocate a mooring or not to allocate a mooring to any particular person, before it could grant planning approval to construct a jetty. As a result, the City proceeded to grant planning approval under TPS 3 to the Strata Council.
107 Ms Lister's lot is very near to the northern boundary of TPS 6 across the waterway to the north from lot 190. Under the jetty allocation plan adopted by the MMCA she claimed the right to use moorings MM 83 and MM 85. She claimed that on 13 July 1999, and on 4 March 2003, the MMCA had confirmed that her lot was entitled to these moorings.
108 Ms Lister had also applied for and obtained development approval from the City to build the jetty. That approval was granted by the City on 16 September 2003, although it had expired by the time of the hearing.
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109 On 28 November 2005, Ms Lister made an application for a jetty licence under s 7 of the Jetties Act to the Department. As it transpires, 62 days earlier the Strata Council had lodged its application for a jetty licence under s 7.
110 On 15 August 2006, the City resolved to revoke TPS 6. However, at material times in Ms Lister's case, TPS 6 remained an operative planning scheme. It was not repealed until February 2007.
111 In all of these circumstances, the Tribunal considered that, although the Strata Council's application for a jetty licence had been received before Ms Lister's, having regard to the policy and practice of the Department of requiring the MMCA first to specify or confer a right to use a mooring before a jetty licence was granted, Ms Lister's application should be allowed: see Lister at [5] and [56].
112 The Tribunal also determined that the policy of the Department which contemplated that a jetty licence should not be granted where a lot does not abut a waterway should not be strictly applied in Ms Lister's case as her property was only separated from the water by a 3 metre wide public access way: see Lister at [6] and [57].
113 The Tribunal also decided that the grant of a jetty licence to Ms Lister would not be futile, on the ground that she would need to access the proposed jetty and moorings through the public easement on lot 190, as it was possible that she would obtain the necessary authorisations and the jetty could be built, maintained and used without authorisation from the owner of lot 190: at [28].
114 The Tribunal also found the jetty would be safe: at [34].
115 In short, the Tribunal in the Lister case assessed her application for review of the Department's refusal to give her a jetty licence on the basis that:
191 In the circumstances, there are no bases for saying that in the proceedings in the Tribunal, either the Department or the City failed to use their best endeavours to assist the Tribunal to make its decision on review.
192 The applicants and Ms Lister also raised questions about the extent to which the decision-makers breached their obligations under s 20 and s 21 of the SAT Act to advise applicants of their rights to have a decision
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- reviewed and reasons for the decision. The Tribunal is quite satisfied that at material times these decisionmakers gave reasons for their decisions as required by s 21. The applicants were in fact aware of their rights to seek review. In any event, a contravention of s 20 does not affect the validity of a decision: see s 20(4), SAT Act.
Consequences of Tribunal's findings on collateral attack
193 As a result of the Tribunal's finding in relation to the applicants' collateral attack on the validity of the decisions of the Department and the City to grant a licence and planning consent in respect of the construction of jetties in the waterway adjacent to lot 190, those decisions are valid and stand.
194 It remains therefore to consider the merits of the applications of the applicants for jetty licences and planning consent in light of this finding.
The merits of the applicants' cases
195 The Tribunal when exercising its review jurisdiction is obliged to produce the correct and preferable decision at the time of the decision upon the review: s 27(2), SAT Act.
196 The review of a reviewable decision is by way of a hearing de novo and is not confined to matters that were before the primary decision-maker. It may involve consideration of new material whether or not it existed at the time the decision was made: s 27(1).
197 The reasons for decision provided by the primary decision-maker do not limit the Tribunal in conducting a proceeding for the review of the decision: s 27(3).
198 The Tribunal may affirm a decision that is being reviewed, vary it or set it aside and substitute its own decision, or send the matter back to the decisionmaker for reconsideration: s 29(3).
199 In this case, the responsibility of the Tribunal, in light of the Tribunal's finding concerning the validity of the jetty licence and planning consent granted to the Strata Council, is to assess the merits of the applications of the applicants also to have a jetty licence and planning consent in the same embayment as the Strata Council proposes to construct its jetties in.
200 The legal and practical reality is that the Tribunal is not reviewing the decisions of the Department and the City to grant the Strata Council a jetty licence and planning consent for the moorings that it proposes to construct in the embayment. Those moorings must now be taken as a given, and the question asked whether there is any practical capacity to construct additional moorings for the applicants.
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201 The practical answer to this question is that, in light of the Strata Council's proposed and approved jetty and mooring facilities, and the jetty and moorings previously granted to Ms Lister, there is no surplus capacity in the embayment for any other jetties to be granted to the applicants, especially when one considers the space available and navigational safety issues.
202 It should also be said in passing that the policy approach to the grant of jetty licences which was historically applied by the Department, to the effect that a jetty licence would ordinarily only be granted to an applicant who controls the access way to the jetty, makes eminent good sense. In those circumstances, there is also a difficulty with the applicants being granted jetty licences given that their lots are relatively remote from the embayment area.
203 The Tribunal in general terms shares the concerns expressed on behalf of the Department and the City, to the effect that ordinarily the security of craft moored at a private jetty and the general amenity of that immediate mooring locality are best promoted by a policy that encourages the development of private jetties more or less adjacent to the land owned or controlled by the licence holder.
204 While there are no particular reasons on the evidence to think that the applicants would be likely to conduct themselves in ways that would put the security of craft at risk or create anything like a nuisance in the embayment locality, the fact remains that security and amenity are promoted by the owners of craft living nearby and having the opportunity to keep their eyes on the pens.
205 This is not an inflexible rule, and each case must be judged on its own merits, but in the circumstances of this case, the Tribunal takes the view that when there is competition for a scarce resource - as the jetties here are - good public administration of the Jetties Act and the principles of proper and orderly planning suggest that the jetty and mooring space immediately adjacent to lot 190 should in principle be accorded to the owners of lot 190.
206 This is the view that the Department and the City eventually came to after many years of attempting to administer the Jetties Act and planning legislation taking into account the moorings regulatory scheme created by TPS 6. However, once the regulatory scheme introduced by TPS 6 is removed from the equation, the historic policy approach of the Department and the proper and orderly planning considerations of the City are sensible and should be applied.
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207 I should add, in passing, that I do not consider that questions raised about the safety of construction of the applicants' proposed jetties are of themselves sufficient to bar the applicants' proposals.
208 It is unfortunate that the expectations and hopes of the applicants that they would be allocated moorings, by reason of earlier decisions of the MMCA under the jetty allocation plan, should come to nought. Once TPS 6 ceased to be operational - as it is at the date the Tribunal makes this decision - those hopes and expectations could only be realised if they accorded with the principles that underlie the proper administration of the Jetties Act and TPS 3.
209 Therefore, the jetty licence granted by the Department to the Strata Council and the planning consent granted by the City to the Strata Council must prevail both in a legal and in a practical sense. That means there is no room for the applicants to have access to the moorings they believed they would one day have by reason of the adoption by the MMCA the jetty allocation plan.
Conclusion and Order
210 For the reasons given above, the review applications of each of the applicants should be dismissed, in each of those cases where either the Department or the City had refused a relevant jetty application or planning consent application by the applicants.
211 The Tribunal therefore orders:
1. The decisions of the Chief Executive Officer and/or the City of Mandurah the subject of these review proceedings are affirmed.
2. The application of each applicant is dismissed.
3. There is no order as to the costs of the proceedings and all parties necessarily bear their own costs of the proceedings.
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I certify that this and the preceding [211] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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