Galletly and Shire Of Broome
[2008] WASAT 175
•6 AUGUST 2008
GALLETLY and SHIRE OF BROOME [2008] WASAT 175
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 175 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:234/2008 | 21 JULY 2008 | |
| Coram: | MR J JORDAN (MEMBER) | 6/08/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Application for a trading licence in a public place, namely, the conduct of remedial massage at Cable Beach, refused | ||
| B | |||
| PDF Version |
| Parties: | CLIVE PHILIP (ARTHUR) GALLETLY SHIRE OF BROOME |
Catchwords: | Local government Trading licence Remedial massage Public place Cable Beach Policy for commercial activities on Cable Beach Whether proposal is consistent with policy Potential precedent for other commercial activities Community values for Cable Beach identified by the Council Maintaining the character Effect of proposal |
Legislation: | Local Government Act 1995 (WA), s 9.7(1)(a) Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 (WA), cl 2.2, cl 2.3.1, cl 2.3.2, cl 5.2.1 |
Case References: | Galletly and Shire of Broome [2008] WASAT 117 |
Orders | 1. The application for review is dismissed.,2. The application for a trading license in a public place, namely the conduct of remedial massage at Cable Beach, is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : GALLETLY and SHIRE OF BROOME [2008] WASAT 175 MEMBER : MR J JORDAN (MEMBER) HEARD : 21 JULY 2008 DELIVERED : 6 AUGUST 2008 FILE NO/S : DR 234 of 2008 BETWEEN : CLIVE PHILIP (ARTHUR) GALLETLY
- Applicant
AND
SHIRE OF BROOME
Respondent
Catchwords:
Local government - Trading licence - Remedial massage - Public place - Cable Beach - Policy for commercial activities on Cable Beach - Whether proposal is consistent with policy - Potential precedent for other commercial activities - Community values for Cable Beach identified by the Council - Maintaining the character - Effect of proposal
Legislation:
Local Government Act 1995 (WA), s 9.7(1)(a)
Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 (WA), cl 2.2, cl 2.3.1, cl 2.3.2, cl 5.2.1
(Page 2)
Result:
Application for review dismissed
Application for a trading licence in a public place, namely, the conduct of remedial massage at Cable Beach, refused
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Mr D van Baven (Representative)
Solicitors:
Applicant : Self-represented
Respondent : Shire of Broome
Case(s) referred to in decision(s):
Galletly and Shire of Broome [2008] WASAT 117
(Page 3)
Summary of Tribunal's decision
1 Mr CP (Arthur) Galletly applied to the Shire of Broome for a trading licence to enable him to conduct remedial massage at Cable Beach. Mr Galletly's preferred location was on the grassed area adjacent to the café at the head of the stairs down to the beach. He would also have accepted being allowed to trade on the beach near the swimming area in the vicinity of other licensees. Mr Galletly said the service would be welcomed because it improved quality of life, did not pollute or cause obstruction and was ideally suited to a beach environment.
2 In February 2008, the Council adopted a new policy "Commercial Activities on Cable Beach". In preparing that policy, the Council consulted with the community and identified what it considered to be the community's values for Cable Beach. This included the expectation that six commercial uses previously operating would remain available. These issues did not include non-beach activity such as massage. Council said it would restrict approval to the six uses because of concern about the proliferation of commercial activity on the beach.
3 The Tribunal noted that Cable Beach was a significant destination for both locals and tourists. It found that Council's policy of restricting commercial activity on the foreshore at Cable Beach was soundly based. The Tribunal therefore determined that the proposed massage activity could not be supported, and the application for a trading licence was dismissed.
Introduction
4 These proceedings involved an application brought by Mr Clive Philip (Arthur) Galletly pursuant to s 9.7(1)(a) of the Local Government Act 1995 (WA) for review of the refusal by the Shire of Broome (Shire or Council) to approve Mr Galletly's application for a trading licence for trading in a public place, namely, conducting remedial massage at Cable Beach, Broome.
5 A trading licence is required in accordance with the Shire of Broome Trading Outdoor, Dining and Street Entertainment Local Law 2003 (WA) (local law).
6 Mr Galletly was seeking to conduct remedial massage at Cable Beach from 9 am to half an hour past sunset, seven days per week from 1 May to 31 October each year.
(Page 4)
Background
7 Mr Galletly said he has diplomas in remedial massage and has been a member of the Association of Remedial Masseurs since 2004. He has provided outdoor remedial massage on the foreshore at Rockingham in accordance with a trading licence issued by the City of Rockingham. Mr Galletly also has a licence to provide outdoor massage at Broome's Town Beach from 9 am to 5 pm each day until 31 October 2008 and from 1 April 2009 to 31 October 2009. The licence to operate at Town Beach was granted following a decision of the State Administrative Tribunal (Tribunal) delivered on 21 May 2008: Galletly and Shire of Broome [2008] WASAT 117.
8 Mr Galletly would conduct the massage using a massage chair and a massage table within a portable gazebo which has a roof but no walls and is approximately 3 metres by 3 metres in area. He would use a sandwich board sign approximately 0.75 metres by 1 metre consistent with the Shire's requirements for signs. Within the gazebo would also be a chair for himself and a small table and container for his oils and other equipment. Mr Galletly's service is eligible for health fund rebates and he says he has public liability insurance of $10 million.
9 Cable Beach is at the western side of the Broome peninsular facing the Indian Ocean. There is a small suburban area comprising housing, tourist resorts and tourist orientated commercial and eating premises. Between the developed area and the beach itself is a car park then a grassed area which includes some picnic facilities, a kiosk and restaurant, public toilets and, at the southern end, a Surf Life Saving Club. At the northern end of this grassed area is a vehicle access point down to the beach itself. Pedestrian access to the beach is achieved by two sets of stairs which descend from the grassed area down about 4 metres to 5 metres to the sand.
10 The beach was described as extending from Gantheaume Point to the south for some 22 kilometres well to the north of the grassed area. At low tide, the beach is about 80 metres wide and at high tide the width would generally be about 15 metres to 20 metres.
11 North of the vehicle access point, four wheel drive vehicles are allowed on the beach, and at certain times of the day, camel rides are available. The camels and the vehicles are only permitted to travel north of this point.
(Page 5)
12 South of the access ramp closer to the front of the Surf Life Saving Club is the main swimming area in the vicinity of which licensed commercial traders operate. At the time of viewing by the Tribunal, the only commercial operation trading was a "beach hut" hiring out boogie boards, beach chairs and beach umbrellas.
13 As part of the hearing, the Tribunal conducted a view of Cable Beach in the company of Mr Galletly and Mr D van Baven of the Shire. At the view, Mr Galletly identified where he would like to operate his massage business. His preferred site was at the top of the stairs under trees in front of the kiosk and in the vicinity of the public toilets. This location was preferred because it was less distance to carry his equipment, it was near the toilets, had some shade and older people did not have to use the stairs down to the beach.
14 A second location identified by Mr Galletly was on the beach to the south of the foot of the stairs in the general vicinity of the beach hut and the swimming area.
15 On 28 May 2008, Mr Galletly wrote to the Council requesting approval to perform remedial massage at Cable Beach. Council's letter in response of 10 June 2008 was to refer to its previous consideration of a similar application to trade at Cable Beach made by Mr Galletly in November 2007. That application was refused as Council did not consider the activity appropriate for the beach area, and it wanted to ensure that the area remained accessible to the public.
16 In its letter of 10 June 2008, the Council advised that it had adopted a new policy "Commercial Activities on Cable Beach" in February 2008. This policy identified six commercial activities on Cable Beach for which it would grant licenses and remedial massage was not included as an approved activity. The Shire said that "as such your request to conduct your remedial massage business on Cable Beach is again refused".
Local law
17 The Council's local law local law has been in place since January 2004. Its purpose is to "provide for the regulation, control and management of outdoor dining areas, markets, trading (including door to door) and street entertainment, in any thoroughfare or public place within the district". The "district" is the whole of the Shire's local government area and therefore includes Cable Beach.
(Page 6)
18 Carrying out remedial massage at Cable Beach, either on the grass or the sand, in return for payment is relevantly "trading" in a public place for the purposes of the local law. Clause 5.2.1 of the local law prohibits a person from carrying on trading in a public place unless that person is the holder of a valid trading licence issued under the local law. A person is able to apply for a trading licence under cl 2.2 of the local law. Clause 2.3.1 enables the Council to refuse to approve an application for a licence or to approve an application for a licence on such terms and conditions, if any, as it sees fit.
19 Clause 2.3.2 of the local laws states:
The local government may refuse to approve an application for a licence, where:
(a) it is not in accordance with clause 2.2 or any other clause relating to the requirements to be complied with when making an application for a licence;
(b) the needs of the area of the district for which the licence is sought are adequately catered for by an established shop or by a person who holds a valid licence;
(c) the application is for a trading licence or market licence which relates to the conduct of trading or a market on Cable Beach, and there is a valid trading licence or market licence under which goods or services are traded which, in the opinion of the local government are similar to some or all of the proposed goods or services in the application;
(d) a policy of the local government adopted by the Council relates to that application and the policy provides that the application is not to be approved;
(e) the proposed activity or location in respect of which a licence is sought is considered by the local government to be undesirable;
(f) the proposed stall is considered by the local government to be unsuitable in any respect for the activity or location for which the licence is sought;
...
(l) there are other grounds on which the local government considers the application should be refused.
(Page 7)
Cable Beach policy
20 On 14 February 2008, the Council adopted its Policy 5.1.3 "Commercial Activities on Cable Beach" (policy). The introduction states that the policy is made under and complements the local law.
21 The introduction also states:
Cable Beach is a highly valued environmental, cultural and social asset under the care and control of the Shire of Broome that is enjoyed by visitors and residents alike.
The Shire's focus for Cable Beach is to sustain a place where the natural environment, on which life depends, is maintained, whilst at the same time the built environment contributes to the economy and a quality of lifestyle for all. The Shire will continue to maintain Cable Beach for family orientated and informal recreational pursuits.
The Shire's plan for the future identifies that the Shire will work with the community and other agencies to encourage appropriate investment and business development to ensure a diverse economic base from which all members of the community may benefit. To support economic development the Shire supports the granting of six Trading Licences for commercial activities on Cable Beach.
22 At page 4, the policy sets out the area of its application:
This policy applies to that portion of Cable Beach between a point formed by the westerly prolongation of Murray Road to the low watermark and a point located 500 metres north of the vehicle entry ramp adjacent to the Broome Surf Club. Commercial activities are to be conducted in this area of Cable Beach between the high and low watermark as indicated on the approved map.
23 At the hearing, the respondent produced a map which showed cadastral boundaries over a vertical aerial photograph with the title "Cable Beach Commercial Activities Trading Area 2008 - 2013". Superimposed on the white sand area of the beach was a rectangle with a note saying it generally delineated the area of application within which identified commercial activities would be permitted to operate.
24 Under the heading "General" the policy states:
1. The Shire will grant licences for the six (6) identified commercial activities on Cable Beach, these being:
(i) Parasailing
(ii) Catamaran Hire
- (iii) Jet Ski Hire
(iv) Beach Gear Hire
(v) Teaching Surf Board Riding
(vi) Dinghy Hire
- ...
5. The Shire will assess applications for Trading Licences for commercial activities with reference to the Local Law and the criteria set out in the Policy.
25 The objectives of the policy are to:
1. Provide additional information that is not defined in the Local Law for the administration of the Local Law that applies specifically to commercial activities on Cable Beach.
2. Set out the criteria and conditions for the approval of Trading Licences that specifically apply to commercial activities (other than commercial camel activities) on Cable Beach.
26 Under the section setting out the criteria for applicants applying for a trading licence are essential criteria, both weighted and non-weighted. Non-weighted criteria include evidence of public liability insurance. Weighted criteria include evidence of experience and information on how an activity would operate.
Arguments of the parties
27 Mr Doug van Baven, Council's Manager, Emergency, Ranger & Beach Services, Community Services, represented the respondent. Mr van Baven said that the policy was the subject of advertising and workshops prior to adoption in February 2008. This resulted in the Council identifying public values for Cable Beach and attitudes to commercial development. The Council decided from this process that listing the six activities in the policy was an appropriate means of regulating commercial uses on the beach. Mr van Baven said licences have been issued for the beach hut, teaching of surf board riding and for catamaran hire. He also said that the Department for Planning and Infrastructure have identified a jet ski use area at Cable Beach.
28 Mr van Baven said that the six listed activities had previously been on the beach and there was acceptance by the public and Council that they could continue. He acknowledged that if erected on the sand, the proposed gazebo
(Page 9)
- would not affect accessibility by the public. He did say, however, that massage was a use many of the public would not expect to be on the beach and he was also concerned that if established, the proposed use would hinder operation of the allowed activities. If erected on the grass, he said the use would hinder access by the public.
29 It was Mr van Baven's submission that an approval of the proposed use would set a precedent for other commercial activities. He commented that since the approval of massage at Town Beach, there has been an application for a stall providing for jumping attached to bungee cords within a frame, and he had enquiries about massage and nail care, jet boats and sale of drinks.
30 Mr van Baven said the Council was seeking a balance between business and the identified community perception of Cable Beach. The policy was considered to introduce stability and not encourage proliferation of commercial operators. In Mr van Baven's opinion, Broome was considered by many as a place of business opportunity, but the Council did not want to compromise stability and lifestyle, particularly at Cable Beach.
31 Mr Galletly said he found the Cable Beach policy incoherent and discriminatory. He believed his proposed massage use conformed with the intent of the policy as set out in the introduction. It would be more compatible with sustaining the natural environment and contributing to the enjoyment of the beach by visitors and residents than would the six listed uses.
32 Mr Galletly was of the view that Cable Beach should offer more than food, drinks and accommodation. He said he would provide the many visitors and locals with an effective and affordable service to relieve shoulder and back pain, headaches and the niggles from long drives and daily activities. If located at Cable Beach, the service could be readily located by visitors without the need to search advertisements for premises. Ideally, the use would be located on the grass area because some visitors just came for the view and not to walk on the sand. The best time to have a massage was when on holiday and the beach provided a relaxing location.
33 Mr Galletly considered his massage service could become a tourist attraction. He believed his service could be distinguished from others wishing to set up tourist activities at the beach because he was a qualified health professional and was a member of a professional association.
(Page 10)
Comment
34 Mr Galletly is appropriately qualified, and as Mr Galletly said, massage at Cable Beach would undoubtedly be more pleasurable than in many other locations or within a building. The Tribunal considers, however, that a trading licence should not be issued for the conduct of remedial massage at Cable Beach, either at the preferred location on the grass at the head of the stairs or on the sand in the defined rectangular trading area shown on the policy map.
35 The location on the grassed area would be outside the commercial area delineated by the Council. The gazebo would occupy the shade of some of the very few trees on the grassed area, it would interrupt the view of the ocean from the kiosk and café dining area and it would be in the general path of those walking from the car park around the kiosk to the top of the stairs. Commercial activity in this location would be a disruption.
36 The Tribunal noted that, if erected on the sand, the gazebo would not impede people walking on the beach. As pointed out by Mr Galletly, his use might have less impact on the environment than some in the policy list. Mr Galletly made it clear he would not have chosen the same uses as the Council.
37 The Tribunal is conscious, however, that the list was selected by the Council after public consultation. The uses selected were consistent with those previously allowed, and were considered by Council to be within the public expectation of what might be found at Cable Beach.
38 The list of uses does have a consistent character related to the beach and the water. While massage at the beach might be pleasurable, there was no compelling reason, however, why massage should happen at this beach. The proposed use would be different in character from those identified by the Council for Cable Beach.
39 Cable Beach has a splendid physical setting and it is understandable that it is considered as a prime tourist destination. The Council was concerned to regulate commercial activity on the beach and so adopted the policy. The Tribunal has formed the view that the Council's policy of attempting to limit the number of commercial uses is soundly based.
(Page 11)
40 The proposed use has particular characteristics associated with Mr Galletly's skills, but the Tribunal is not persuaded that this is sufficient to set aside the Council's Cable Beach policy. Other applicants with particular skills, whether craft, catering or other health related activities, might also wish to operate on Cable Beach. The Tribunal agrees with Mr van Baven that other commercial operators, with a business that visitors to the beach might also find interesting or useful, might also be as worthy individuals as Mr Galletly.
41 Mr van Baven said the policy might evolve. The Tribunal considers that the appropriate mechanism for changing or expanding the categories of uses to be considered favourably would be a revision of the Cable Beach policy, which should include an appropriate period of public consultation.
Conclusion
42 There is no policy for trading in a public place which covers Town Beach, where Mr Galletly was awarded a licence to trade. The Council has adopted a policy for Commercial Trading on Cable Beach. The purpose of policy is to guide the Council's decision-making on applications made under the local law. As a matter of law, of course, policy cannot replace the Council's exercise of discretion and all applications must be considered on their merit. However, in circumstances where there is a properly adopted policy in place, the relevant consideration is why the principles that find expression in the policy should not be applied. The Tribunal has found that the principle of restricting commercial activity at Cable Beach is properly formed, soundly based and relevant to this matter.
43 The Tribunal has determined that the policy should not be set aside and the range of commercial activities extended in this instance to allow the proposed use, and the application has therefore been refused.
Order
1. The application for review is dismissed.
2. The application for a trading license in a public place, namely the conduct of remedial massage at Cable Beach, is refused.
(Page 12)
- I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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