Galletly and Shire Of Broome
[2008] WASAT 117
•21 MAY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: GALLETLY and SHIRE OF BROOME [2008] WASAT 117
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 19 MAY 2008
DELIVERED : 21 MAY 2008
FILE NO/S: DR 102 of 2008
BETWEEN: CLIVE PHILIP (ARTHUR) GALLETLY
Applicant
AND
SHIRE OF BROOME
Respondent
Catchwords:
Local government - Trading licence - Public place - Remedial massage - Grassed reserve adjacent to beach Whether proposed activity would interfere with public access and use Whether approval would lead to proliferation of commercial activities Administrative burden for local government Public benefit
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, cl 5.8
State Administrative Tribunal Act 2004 (WA), s 20(1)
Result:
Application for review allowed
Trading licence granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr C Jackson (Public Sector Employee)
Solicitors:
Applicant: Self-represented
Respondent: Shire of Broome
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr CP (Arthur) Galletly applied to the Shire of Broome for a trading licence to enable him to conduct remedial massage on the foreshore at Town Beach, Broome. The Shire of Broome refused the application on the basis that the activity is inappropriate and would interfere with public access and use. Mr Galletly sought review of this decision by the State Administrative Tribunal.
The State Administrative Tribunal determined that the proposed activity warrants conditional approval. It will provide a beneficial, health‑related service in a pleasant, convenient and appropriate location. It will be operated by a licensee with appropriate qualifications and experience and a proven track record in a similar location. It will not materially interfere with public access, and to the extent that it precludes access through the immediate area of the activity, provides a compensating public benefit. It will not materially interfere with views to or from the foreshore and will be located in an area which already has one commercial activity and contains structures.
The application for review was allowed and a trading licence was issued subject to conditions until 31 October 2008 and from 1 April 2009 to 31 October 2009. If Mr Galletly reapplies for a trading licence to enable him to continue the activity beyond this period, the Shire of Broome will be able to review the activity in light of experience. The Shire of Broome will also have until 31 October 2009 to formulate, with public involvement, and to adopt, a policy to guide the exercise of discretion in relation to the determination of trading licence applications at Town Beach.
Introduction
These proceedings involve an application brought by Mr CP (Arthur) Galletly pursuant to s 9.7(1)(a) of the Local Government Act 1995 (WA) for review of the decision of the Shire of Broome (Shire or Council) to refuse Mr Galletly's application for a trading licence to enable him to conduct remedial massage in a public place, namely on the grassed area of Reserve 31340 at Town Beach, Broome.
Mr Galletly submitted his application to the Council in accordance with the Shire of Broome Trading Outdoor Dining and Street Entertainment Local Law 2003 (WA) (Local Law).
Mr Galletly wishes to conduct remedial massage at the Town Beach reserve from 9 am to 5 pm each day from April to October.
Background
Mr Galletly has two diplomas in remedial massage and is a member of the Association of Remedial Masseurs. Since 2004, he has operated what he describes as "Australia's first and only outdoor remedial massage clinic" on the foreshore in Rockingham, in accordance with a trading licence issued by the City of Rockingham.
Mr Galletly has public liability insurance of $10,000,000. He conducts remedial 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. Mr Galletly has two signs, each approximately 0.75 metre by 1 metre, describing his qualifications and experience and the service that he offers. Mr Galletly's service is eligible for health fund rebates.
Town Beach is a well maintained and pleasant foreshore reserve on Roebuck Bay under the care, control and management of the Shire. It comprises the beach, grassed area, children's playground, fixed gazebo with chairs and tables, a café and kiosk building, pathways and fixed outdoor chairs and tables. A caravan park is located immediately to the south of the reserve.
The only daily commercial activity that currently takes place on the reserve is a café and kiosk which is conducted in a building leased by the Council to a private operator. In addition, night-time markets, known as the "Staircase to the Moon Markets", take place on the reserve between approximately 6 pm and 11 pm on three nights per month between May and October. These markets comprise approximately 50 stalls and are timed to coincide with a natural phenomenon which occurs when the rising of a full moon reflects off the exposed mudflats at low tide, creating the optical illusion of a "staircase to the moon".
Mr Galletly submitted his application to the Council on 15 January 2008. At its meeting on 14 February 2008, the Council resolved to accept its officers' recommendation to refuse to grant a licence for the following reason:
"Council does not consider this activity as appropriate for this small beach area and wishes to ensure the area remains accessible for the use and enjoyment of the public."
Mr Galletly was informed of the Council's decision by letter dated 22 February 2008. Although the letter did not advise Mr Galletly that he has a right to seek review by the State Administrative Tribunal (Tribunal) of the Council's decision ‑ contrary to s 20(1) of the State Administrative Tribunal Act 2004 (WA) ‑ Mr Galletly filed the application for review on 19 March 2008.
In his additional grounds for review filed on 18 April 2008, Mr Galletly requests "a trial period of a year so that the local people and the councillors themselves can try the service and judge its quality for themselves".
Local Law
The purpose of the Local Law 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.
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. Carrying out remedial massage in return for payment at the Town Beach reserve is relevantly "trading" in a "public place" for the purposes of the Local Law.
Clause 2.2 of the Local Law enables a person who is required to hold a trading licence under the Local Law to apply for one. Clause 2.3.1 of the Local Law 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.
Clause 2.3.2 of the Local Law states as follows:
"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)[relates to Cable Beach only];
(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)[relates to stalls only];
(g)the applicant has committed a breach of any provision of this local law or of any written law relevant to the activity in respect of which the licence is sought;
(h)the applicant is not a desirable or suitable person to hold a licence;
(i)the applicant is an undischarged bankrupt or is in liquidation;
(j)the applicant has entered into any composition or arrangement with creditors;
(k)a manager, an administrator, a trustee, a receiver or a receiver and manager has been appointed in relation to any part of the applicant's undertakings or property; or
(l)there are other grounds on which the local government considers the application should be refused."
The Council has not adopted any policy that is relevant to this matter.
Clause 5.8 of the Local Law prescribes both positive and negative responsibilities and obligations on the part of a person to whom the Council has granted a licence.
Parties' arguments
Mr Chris Jackson, Council's Director of Community Services, presented essentially four arguments for refusal of a trading licence.
First, Mr Jackson contends that the proposed activity is undesirable because of the small size of the reserve.
Second, he argues that the proposed activity is undesirable because the reserve should be kept available for public access and use, and the proposed activity would interfere with public access and use.
Third, Mr Jackson contends that approval of the proposed activity may encourage other licence applications and thereby result in an undesirable proliferation of commercial activities on public land.
Fourth, approval of the proposed activity will cause the Council an administrative burden in terms of monitoring and management of the licence when the Council is already stretched in its resources.
Mr Galletly presented essentially three arguments in favour of approval of a trading licence.
First, Mr Galletly says that remedial massage is "the most appropriate activity at a beach" ‑ "you can't imagine a more healing environment than overlooking the water".
Based on his experience in Rockingham, Mr Galletly gave evidence that people going on holiday "take their pains with them" and also develop aches and pains while travelling to their holiday destination in a car or aeroplane, and on holiday "from sleeping in different beds with pillows of different thicknesses, from activities their bodies are not used to, such as desk-bound office workers playing beach cricket or trying windsurfing or waterskiing etc". Furthermore, the so-called "grey nomads", who travel around Australia in caravans and stay at the adjoining caravan park, "are likely to have a few aches and pains and war wounds from their working lives and would appreciate having a service like mine close at hand".
Second, Mr Galletly contends that there is sufficient space at the reserve to accommodate his activity without unduly interfering with public use and access. He notes that his gazebo is only approximately 3 metres by 3 metres in area.
Third, Mr Galletly considers that Broome's international visitors would expect the availability of a massage on the beach, such as is available in Bali and Thailand. However, whereas massages in those places are not necessarily provided by a trained masseur, Mr Galletly has appropriate training and experience.
Should a licence be granted?
The Tribunal considers that a trading licence should be granted until October 2008 and from April 2009 to October 2009 for the following eight reasons.
First, there is already a daily commercial activity at the reserve, namely, the café and kiosk. The proposed activity would not be the first commercial activity in this location.
Second, remedial massage is an appropriate activity in this location, because it involves a beneficial, health-related service, not only for holidaymakers and the "grey nomads", but also for the existing Broome community, in a pleasant, convenient and, as Mr Galletly said, "healing" environment.
Third, Mr Galletly is appropriately qualified and experienced and has a proven track record in a similar location.
Fourth, there is sufficient room on the grassed area between the children's playground and the fixed gazebo to accommodate the proposed activity and still to allow public use and access through that area.
It is true that public access would be impeded through the immediate area of the proposed activity. However, this limited interference with access would be compensated for by providing the public with a beneficial, health‑related service in an appropriate and convenient location.
It is also true that not all members of the public would avail themselves of Mr Galletly's service. However, the same can be said for the café and kiosk. Both the café and kiosk and the proposed remedial massage activity provide a public benefit in an appropriate location, although both interfere with public use and access to an extent.
Fifth, Mr Galletly's massage chair, massage table and gazebo are lightweight structures that would not materially interfere with views to or from the foreshore. Furthermore, as noted earlier, the foreshore area already includes structures in the form of a fixed gazebo, chairs and tables, and the café and kiosk building.
Sixth, while a proliferation of commercial activities on the reserve would be undesirable in terms of character, public accessibility and interference with views, it does not appear on the evidence that approval of the proposed activity would lead to a number of other successful applications. There is no evidence of any other applicants "waiting in the wings". Any future application would have to be assessed on its own merits. Furthermore, cl 2.3.2(b) of the Local Law enables the Council to refuse a licence where "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". This provision would appear to preclude a proliferation of general commercial or retail activities on the reserve.
Seventh, there is not likely to be a significant administrative burden in monitoring and management of the licence. Mr Galletly's activity is limited in scale and low-key in character. Clause 5.8 of the Local Law prescribes positive and negative responsibilities and obligations of a licensee. It is highly likely that, given his qualifications, experience and track record, Mr Galletly will comply with these requirements. The Tribunal accepts Mr Galletly's evidence that he will be "largely self‑regulating".
In any case, it is common ground that a licence fee can and should be imposed to provide Council with the reasonable cost of monitoring and management of the licence. In this regard, while the Council has not yet determined this cost for the proposed activity, it appears to have determined in about October 2007 that the reasonable cost of monitoring and management of the proposed activity at Cable Beach would be approximately $100 per month. There does not appear to be any reason why that cost is likely to have increased in the subsequent seven months. Payment of this licence fee would compensate the Council for the reasonable cost of monitoring and management of the licence.
Eighth and finally, the Council has not adopted a policy that suggests that the proposed activity should not be approved.
Approval of the proposed activity until October 2008 and from April 2009 to October 2009 will enable the Council to review the trading, in light of experience, and to formulate, with public involvement, and to adopt a policy to guide the exercise of discretion under the Local Law in relation to the Town Beach reserve.
Conditions
Mr Jackson indicated that, if the Tribunal decides to grant the licence, the Council wishes to have an opportunity to determine an appropriate licence fee to reflect its reasonable cost of monitoring and management and any other reasonable conditions. This is fair and appropriate.
However, given that Mr Galletly applied for the licence four months ago and wished to start trading at the beginning of last month, the Tribunal considers that he should be allowed to commence trading immediately subject to the conditions set out below and subject to any further or substituted conditions that the Tribunal may subsequently impose having regard to the Council's proposed conditions, if any, and Mr Galletly's responses, if any.
Conclusion
The proposed activity warrants conditional approval.
The proposed activity will provide a beneficial, health‑related service in a pleasant, convenient and appropriate environment. It will be operated by a licensee with appropriate qualifications and experience, and a proven track record in a similar location.
The proposed activity will not materially interfere with public access and, to the extent that it precludes access through the immediate area of the activity, provides a compensating public benefit.
The proposed activity will not materially interfere with views to or from the foreshore, and will be located in an area which already has one commercial activity and contains a number of structures.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse to grant a licence to the applicant for trading in a public place, namely, remedial massage on the grassed area of Reserve 31340 at Town Beach, Broome under the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 (Local Law) (activity) is set aside and a decision is substituted that a licence is granted for the activity under the Local Law subject to the following conditions:
(1)This licence enables Mr CP (Arthur) Galletly to conduct remedial massage between 9 am and 5 pm each day until 31 October 2008 and between 9 am and 5 pm each day from 1 April 2009 until 31 October 2009. This licence expires on 31 October 2009, and Mr Galletly must apply to the Council for a trading licence if he wishes to continue the activity beyond this period.
(2)The approved activity must take place in an area having dimensions no greater than approximately 3 metres by 3 metres immediately to the east of the pathway to the east of the children's playground.
(3)Mr Galletly must pay a licence fee for the Council's reasonable cost of monitoring and management of the licence of $500 for 2008 by 31 May 2008 and $700 for 2009 by 31 March 2009.
(4)Mr Galletly must not employ or contract any other person to carry out the approved activity.
(5)Mr Galletly must maintain and provide evidence to the Council that he holds current public liability insurance for $10,000,000 in relation to the approved activity.
(6)Mr Galletly indemnifies the Council for any loss, damage or liability to the Council from the carrying out of the approved activity.
(7)Mr Galletly must comply with the responsibilities and obligations prescribed in cl 5.8 of the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003.
(8)The only structures that may be used in the approved activity are a massage chair, a massage table and a transportable gazebo with a roof but no walls which has dimensions of approximately 3 metres by 3 metres.
(9)Mr Galletly may display no more than one sign having a maximum area of 0.5 square metres attached to his gazebo at the ground describing his qualifications and experience, the service that he offers and the cost.
(10)Such further or substituted conditions as may be imposed by the Tribunal following the process set out in orders 3 to 5.
3.By 10 June 2008, the respondent must file and provide to the applicant a schedule of any further or substituted conditions it considers should be imposed.
4.By 13 June 2008, the applicant must file and provide to the respondent any response to the respondent's schedule.
5.By 17 June 2008, the respondent may file and provide to the applicant any comments on the applicant's response.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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