Harmer and Shire Of Irwin - [2014] WASAT 161

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HARMER and SHIRE OF IRWIN [2014] WASAT 161

MEMBER: MS L EDDY (MEMBER)

HEARD: 6 AUGUST 2014

DELIVERED : 2 DECEMBER 2014

FILE NO/S: DR 422 of 2013

BETWEEN: HEDLEY HARMER
Applicant
AND
SHIRE OF IRWIN
Respondent

Catchwords:

Town planning Development Application for retrospective approval Relocate or construct fisherman's shack located within Crown land (reserve) Longterm occupation of part of reserve by commercial fisherman for purposes of fishing Limited power to lease part of reserve Whether relocating or building fisherman's shack consistent with purpose of reservation Shire of Irwin Local Planning Scheme No 5 State Planning Policy No 2.6 State Coastal Planning Policy Shire of Irwin Coastal Development Strategy

Legislation:

Land Act 1933 (WA)
Land Administration Act 1997 (WA), s 41
Local Government Act 1960 (WA), s 267
Planning and Development Act 2005 (WA)
Shire of Irwin Local Planning Scheme No 5, cl 1.6, cl 3.4.1, cl 3.4.2, cl 10.2, cl 10.2(a), cl 10.6(b), cl 10.6(c), cl 10.6(zb)
State Administrative Tribunal Act 2004 (WA), s 31
State Administrative Tribunal Rules 2004 (WA), r 9

Result:

Application dismissed

Summary of Tribunal's decision:

The application was for review of a decision the Shire of Irwin made on 25 March 2014 to refuse to approve a retrospective development application made by a professional fisherman. The applicant had requested retrospective planning approval of the construction (or relocation, as the applicant called it) of a 'fisherman's shack' on reserved Crown land. The applicant had occupied a fisherman's shack located in the reserve for some years, but it had been washed away. The applicant then salvaged parts of that shack and used that material to build another shack a short distance away from the location of the original shack. The Tribunal found that the applicant had not relocated his shack but had instead built a new shack on another site within the reserve. In determining the application, the Tribunal was required to have regard to the ultimate purpose intended for the reserve and to the matters specified in cl 10.2 of the Shire of Irwin Local Planning Scheme No 5. The Tribunal found that the development proposal was not consistent with the ultimate purpose intended for the reserve. The Tribunal also found that the applicant's proposal was largely inconsistent with the matters required to be considered pursuant to cl 10.2 of the Shire of Irwin Local Planning Scheme No 5. The applicant's proposal does not reflect orderly and proper planning. The decision of the respondent to refuse the development proposal was affirmed.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr D Fotheringham and Ms S van Aswegen (Acting as Agents)

Solicitors:

Applicant: N/A
Respondent: N/A

Case(s) referred to in decision(s):

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application for review of a decision of the Shire of Irwin (respondent or Shire) made on 22 October 2013 to refuse to approve a retrospective development application made by Mr Hedley Harmer (applicant). The applicant had requested retrospective planning approval of the construction (or relocation as the applicant called it) of a 'fisherman's shack' (shack) on Crown land in an area known as Freshwater Point.
The background to the retrospective planning application was that the applicant had owned a shack located at Freshwater Point for some years but it had been washed away. The applicant then salvaged parts of that shack and used that material to build another shack a short distance away from the location of the original shack. After it was constructed, the respondent became aware of the new, or relocated, shack's existence. As a consequence of his discussions with officers of the respondent, the applicant applied for retrospective planning approval for the new, or relocated, shack.
The application for review by the State Administrative Tribunal was lodged on 14 November 2013, within the time allowed by r 9 of the State Administrative Tribunal Rules 2004 (WA). The matter was referred to mediation in January 2013 and, subsequently, by consent of the parties, the respondent was invited to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA). On 25 March 2014, the respondent reconsidered the applicant's application for retrospective planning approval and again refused to approve that application. The matter then proceeded to a hearing in the Tribunal on 6 August 2014. Following that hearing, the decision of the Tribunal was reserved.

Site and locality

The Crown land on which the applicant constructed or relocated his shack is part of a larger strip of coastal Crown land located within the Shire, lying between Indian Ocean Drive and the Indian Ocean, south of the townsites of Dongara and Port Denison. This strip of Crown land is formally described as Lot 11982 on Deposited Plan 243167, Certificate of Title vol 3121 folio 183. This land is reserved, being Reserve 43078 (reserve).
The reserve is identified locally as having within it a number of different localities, which include areas known as White Point, Cliff Head, Freshwater Point, Bee Hollow and Knobby Head. Historically, clustered around each of these localities, there have been a number of shacks occupied largely by commercial fishermen.

Planning framework

Town Planning Scheme

The reserve is within the Scheme area as shown on the Scheme Map of the Shire of Irwin Local Planning Scheme No 5 (LPS 5 or Scheme). The aims of LPS 5, expressed at cl 1.6, include:
…
c)to provide for housing choice and variety with a community identity and high levels of amenity;
…
e)to facilitate a diverse and integrated network of open space catering for both active and passive recreation, consistent with the needs of the community;
…
g)to protect and enhance the environmental values and natural inland and coastal resources of the Scheme area and to promote ecologically sustainable land use and development; and
h)to safeguard and enhance the character and amenity of the built and natural environment of the Scheme area.
The reserve is classified under LPS 5 as a Local Reserve. Clause 3.4.1 of LPS 5 states that 'a person must not … commence or carry out development on a Local Reserve without first having obtaining planning approval under Part 9 of the Scheme'. Clause 3.4.2 of LPS 5 provides:
In determining an application for planning approval the local government is to have due regard to ‑
a)the matters set out in Clause 10.2; and
b)the ultimate purpose intended for the Reserve.
Clause 10.2 of LPS 5 relevantly provides:
The local government in considering an application for planning approval shall have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development subject of the application ‑
a)the aims and provisions of the Scheme and any other relevant town or local planning scheme operating within the Scheme Area;
b)the requirements of orderly and proper planning including any relevant proposed new town or local planning scheme or amendment which has been granted consent for public submissions to be sought;
c)any approved State Planning Policy of the Commission;
…
g)in the case of land reserved under the Scheme, the ultimate purpose intended for the reserve;
…
m)whether the land to which that application relates is unsuitable for the proposal by reason of it being, or likely to be, subject to flooding, tidal inundation, subsidence, landslip, bush fire or any other risk;
n)the preservation of the amenity of the locality;
…
zb)the Irwin Coastal Plan, Central Coast Regional Strategy, Batavia Coast Strategy and Shire of Irwin Coastal Development Strategy.

State Planning Policies

State Planning Policy No. 2.6 State Coastal Planning Policy (SPP 2.6) was gazetted on 30 July 2013 and replaced an earlier version of SPP 2.6. This policy 'applies state‑wide and … is supported by other WAPC state planning polices, development control policies and guidelines relevant to the coastal zone. … For coastal matters this State Planning Policy No. 2.6 State Coastal Planning Policy is to be viewed as the higher order and prevailing policy': clause 2.3 of SPP 2.6.
Clause 3 states that SPP 2.6 'applies to the coast throughout Western Australia'.
The policy objectives of SPP 2.6 are to:
1.ensure that development and the location of coastal facilities takes into account coastal processes, landform stability, coastal hazards, climate change and biophysical criteria;
2.ensure the identification of appropriate areas for the sustainable use of the coast for housing, tourism, recreation, ocean access, maritime industry, commercial and other activities;
3.provide for public coastal foreshore reserves and access to them on the coast; and
4.protect, conserve and enhance coastal zone values, particularly in areas of landscape, biodiversity and ecosystem integrity, indigenous and cultural significance.
Under the policy measures that apply to development and settlement, it states, at clause 5.2 of SPP 2.6:
(i)Encourage urban development to be concentrated in and around existing settlements, particularly those with established infrastructure and services. Continuous linear urban development along the coast should be discouraged or, where it has occurred, carefully controlled. Proposed major urban development outside existing settlements will only be supported where a genuine community need has been demonstrated and the environmental capability has been properly assessed.
(ii)Ensure that when selecting a development location, regard is given to infrastructure capacity and where possible, existing infrastructure be upgraded and improved.
(iii)Ensure that when identifying areas suitable for development, consideration is given to strategic sites for coastal access and commercial development that is demonstrably dependent on a foreshore location including ports, boat harbours and regional boat ramps.
(iv)Ensure that use of the coast, including the marine environment, for recreation, conservation, tourism, commerce, industry, housing, ocean access and other appropriate activities, is sustainable and located in suitable areas.
(v)Ensure that land use and development, including roads, adjacent to the coast is sited and designed to complement and enhance the coastal environment in terms of its visual, amenity, social and ecological values.
Clause 5.5(iii)(1) of SPP 2.6 provides that there should be avoidance of the presence of new development within an area identified to be affected by coastal hazards.
Clause 5.9 of SPP 2.6 relevantly provides:
(i)Coastal foreshore reserves are required to accommodate a range of functions and values. While local and site specific considerations will vary, the delineation of a coastal foreshore reserve will include the consideration of, and protection for, significant natural features such as coastal habitats and, for their biodiversity, archaeological, ethnographic, geological, geo-morphological, visual or wilderness, biodiversity and ecosystem integrity, heritage, landscape, seascape, and visual landscape values; likely impacts of coastal hazards; and opportunities for public access, public recreation needs and safety to lives and property. Schedule One provides guidance on how to estimate the potential impacts of coastal hazards, however, this is only one input into the determination of a coastal foreshore reserve, which will be required to demonstrate that the values, functions and uses prescribed are available at the end of the planning timeframe.
(ii)The required coastal foreshore reserve will vary according to the circumstances of any particular proposal. Each proposal must be assessed on its merits having regard to this policy, including the principles and guidelines of Schedule One and the Coastal Planning Policy Guidelines.
(iii)Ensure that the identification of land to be set aside for public ownership for management, public access, recreation, and conservation is undertaken during the planning process. Generally this land should be given up free of cost at the time of development, subdivision or strata subdivision, over and above the required provision of public open space.
(iv)Support vesting of the coastal foreshore reserve in the relevant local government for the purposes of coastal foreshore management, public access, recreation and conservation. Where the land has significant conservation value, vesting should generally be with the state body responsible for the conservation estate. Opportunities to improve and protect the conservation values of freehold land should also be pursued.
(v)Ensure that the coastal foreshore reserve is separated from adjacent development in a way that provides a clear demarcation between public and private land.

Local Planning Policy, Plan or Guideline

The respondent has adopted a relevant strategy, the Shire of Irwin Coastal Development Strategy, dated June 2000 (Strategy). The area covered by the Strategy is the 'land and nearshore water comprising the coastal area of the shire of Irwin, between the southern shire boundary and North Cliff Head excluding the gazetted town sites of Port Denison and Dongara': clause 1.2 of the Strategy. In the introduction to the Strategy, it is noted that squatters have been present on the Shire coast for many years, with squatters' settlements being traditionally used for fishing and holiday purposes. In some places, the squatter settlements have been formalised into towns and have developed improved facilities and community infrastructure. However, it is noted in the Strategy that the intensification of squatters' shacks has led to a number of serious problems, such as:
•The shacks are unsightly and have been constructed without regard for proper building and health regulations. In many cases they are structurally unsafe.
•The land surrounding squatter shack areas is becoming progressively degraded through uncontrolled vehicular use. In many areas, shacks are built on primary dunes resulting in coastal erosion.
•The shacks occupy many of the most sought after areas along the coast and tend to preclude access by others.
At page 13 of the Strategy, at point 3.7 under the heading 'Coastal setbacks', it states:
Wherever possible development of permanent structures will be set back at least 100 metres from the permanent vegetation line on coastal foreshores. Semi-permanent or temporary structures, or those which can be inundated such as ablutions[,] may be located within the 100 metre setback.
Exceptions to this Policy are envisaged where:
•it is necessary to provide for fisher camps where they need to see their moorings
•the shoreline and landform are stable and have a history of stability
•a reasonable foreshore reserve suitable for conservation and recreation can still be created
•buildings are designed to be removable where necessary.
At clause 3.8 of the Strategy there is a statement of what is described as the 'State Squatter Policy'. It is stated that the Policy requires removal of all existing shacks and other structures at the end of a six year period which commenced in 1994. Further, '[n]o new illegal shacks will be permitted on Crown land along the State's coastline'. It is later stated:
The Shire of Irwin has commenced implementing the squatter policy by numbering and registering squatter[s'] shacks and the systematic removal of abandoned and unwanted shacks. The preparation of [the Strategy] ensures that the Shire can institute a more effective and responsible management of the coastal area, while acknowledging the demand for its use, particularly where access has been available in the past.
At Appendix 2 of the Strategy is a Department of Land Administration (as it was then) policy statement entitled 'Professional Fisher Shack Tenure along the Central Coast of Western Australia' dated August 1999 (Fisher Shack Policy). The Fisher Shack Policy notes that the Department of Land Administration, in cooperation with the coastal reserve management bodies, is responsible for the provision of transitional leases for approved professional fisher shack sites along the central coast until such time the lessees are required to:
(i)relocate to a development node (near a traditional fishing ground) which has been formally created as a reserve; or
(ii)upgrade the existing shacks to comply with established building standards if already [appropriately] located in a proposed development node[;] or
(iii)relocate to existing townsites.
The Policy specifies that development node sites will be reserved in accordance with s 41 of the Land Administration Act 1997 (WA) and placed under the relevant authority's care, control and management with power to lease for a term of 21 years. It states:
The creation of development node reserves to accommodate professional fishers will be considered when:
•there is no nearby townsite
•a suitable site for a development node can be identified
•there are sufficient numbers of professional fishers to justify the establishment of a development node; and/or
•traditional fishing patterns and restrictive licences apply (where Fisheries WA dictates the area where fishers can operate).
The Policy also states that the general terms and conditions of transitional leases will include, but not be limited by, the specified terms and conditions listed in the Policy. One of these, that the applicant relies on in support of his case, is:
(m)If buildings are destroyed by natural causes, the location, replacement of buildings, erections, paving, drainage or other works shall comply with the requirements of the Local Authority[.]
Another relevant lease term specified in the Fisher Shack Policy is:
(e)Transfer of leases will only be permitted when it is in conjunction with the transfer/sale of the Lessee's fishing licence and other assets associated with that licence[.]

Issues

The respondent submitted that there were two issues that the Tribunal had to consider in this matter. The first issue, as identified by the respondent, was whether the applicant had any 'land use rights' in relation to the part of the reserve where he had constructed, or relocated, his shack. The second issue was described as whether the development application should be approved according to the relevant planning principles. While these are matters that are relevant to the decision, I prefer to phrase the issues that must be determined in this review in a way more closely aligned with the language used in LPS 5 to describe the decision‑maker's discretion in a matter such as this.
In order to determine the correct and preferable decision in this matter, it is necessary to decide whether retrospective planning approval should be granted to the applicant to construct, or relocate, a shack on the reserve. In determining that issue, the Tribunal must have regard to the matters set out in cl 10.2 of LPS 5 and the ultimate purpose intended for the reserve. As will be seen below, determination of these issues requires analysis of the same issues as identified by the respondent.
It is convenient in this case to consider the intended purpose for the reserve first.

Is the development proposal consistent with the purpose for the reserve?

The reserve was vested in the Shire in June 1994 'for the designated purpose of Parkland, Recreation and the letting of cottages existing thereon on 14 February 1994 with power, subject to the approval in writing of the Minister for lands to each and every lease being first obtained, and to the conditions set out in Part II of the Schedule over, to lease the whole or any portion thereof for a term or terms expiring on or before 30 June 2000'. The Schedule on the reverse of the vesting order is as follows:
PART I
(i)The Shire is to ensure early removal of structures for which a lease is not accorded by 31 December 1994 and in any case is to ensure clearing of all structures rehabilitation of affected area by 31 December 2000
(ii)No new cottages will be allowed to be constructed within the reserve from the date of making this Order[.]
PART II
(i)Leasing is to be restricted to persons occupying cottages as at 14 February 1994
(ii)No transfer or assignment of leases will be permitted.

In 2007, a management order was registered on the title of the reserve, and under this order the care, control and management of the reserve was placed with the respondent. The conditions of the management order are stated as follows:
(i)To be utilised for the designated purpose of 'Parkland, Recreation and the letting of cottages existing thereon on 14/2/1994'[.]
(ii)Power to lease for the designated purpose is granted for the whole or any portion thereof up until the 30^thJune 2015 subject to the approval in writing of the Minister for Lands being first obtained to each and every lease or assignment of lease, pursuant also to the provisions of section 19 of the Land Administration Act 1997.
It is clear that one of the purposes for the reserve is to allow the letting of cottages that existed on the reserve as at 14 February 1994 (letting purpose). The conditions in the vesting order and the management order are such that I am satisfied that the letting purpose was always a limited one, and it was never intended that there be a general power to lease the reserve for any new privately owned and occupied structures on the reserve. In addition, the letting purpose of the reserve contemplates transitional leases existing only for a single specified period of time (that period of time being extended in the management order of 2007). This is consistent with the State‑wide Squatter Policy as explained in the Strategy.
It is my view that the construction, or relocation, of a privately‑owned shack within the reserve is not consistent with the purposes of 'Parkland or Recreation'. The question therefore is whether the construction, or relocation, of such a shack is consistent with the letting purpose of the reserve. In determining this, it is relevant to consider the history of the applicant's occupation of parts of the reserve.
At some time prior to February 1994, the respondent sent out notices addressed to what it described as 'Coastal Squatters' (Exhibit 1, page 2). In this notice, the coastal squatters were advised of the upcoming vesting of the coastal reserve to the Shire and the proposed plans for the management of the reserve. The coastal squatters were advised that if they were interested in retaining their shacks, they would have to submit a form identifying their shack's location and the owner's details. The necessary form accompanied the notice and included a plan identifying the location of each of the existing shacks or other structures within the reserve, and giving each structure an identifying number. Relevantly for these proceedings, the respondent received a completed form indicating that the shacks identified as Nos 99, 100, 101 and 102 were owned by Chitty Fishing Enterprises, and Mr Rex Chitty and Ms Janice Chitty. Next to the number '99' is also written '1/2 share with H. Harmer' (Exhibit 1, page 4).
The applicant's evidence at the hearing was that he and his friend, Mr Jack Hartley, together created the site where the shacks that the respondent later identified as shacks Nos 99 to 104 were constructed. At the time, there were two pre‑existing 'heritage' sheds on the site. The applicant and his friends flattened the surrounding area, laid gravel and built a number of shacks (over the course of some years) to use in the course of their commercial fishing operations. At this time, there were a significant number of boats moored in this area, approximately 150 metres off the shore directly adjacent to this site. The fishermen could see the boats from the 'camp' where the shacks were built.
The shacks that came to be known as Nos 100 and 102 were Mr Hartley's shacks, while shacks Nos 103 and 104 were the applicant's shacks. There was another shack, No 99, which the applicant and Mr Hartley shared. The shack described as No 101 by the respondent was identified by the applicant as a shed built for the purpose of a depot shed for crayfish, and was owned by Mr Hartley. Shack No 104 was the applicant's main shack, being his 'skipper's shack'. Shack No 103 was his 'deckie's shack'. The applicant's evidence was that he had occupied these shacks continually from the time they were built, with the first shack being built approximately 37 years ago.
The applicant told the Tribunal that Mr Hartley later sold his shacks to Mr Rex Chitty. Having regard to the information in Exhibit 1, page 4, this must have occurred sometime before late 1994, when the form with identification of shack location and ownership details for shacks No 99, 100, 101 and 102 was provided to the respondent. In approximately early January 2000, Mr Chitty removed shack No 102, leaving the concrete foundation and a small part of the old shack. The applicant was interested in taking over this site in order to increase his facilities at the 'camp', and Mr Chitty purported to transfer to the applicant his interest in the site on which shack No 102 had been located and the remaining part of shack No 102.
Approximately three years ago, the applicant's shack No 104 started to become undermined by coastal erosion. Parts of the shack were washed away and the applicant later took the rest of the shack down. In December 2011, the applicant wrote to the respondent asking for approval to relocate his main shack (No 104) due to the threat of coastal erosion. The respondent says that the applicant was verbally advised that no approval would be forthcoming due to the site's proximity to the sea and the eventual phase‑out of shacks on the reserve. However, nothing turns on this point. In mid‑2013, the applicant engaged carpenters and electricians to build another shack on the site of the previous shack (No 102), using some of the building materials he had salvaged from shack No 104 and some new materials.
The applicant states that when he took over the site of shack No 102 from Mr Chitty, he arranged with the respondent's administrative staff to take over payment for the lease relating to shack No 102 and, from that time, he noticed that he was charged an increased amount in yearly rent by the respondent. He assumed this was in accordance with the transfer; however, he did not recall ever looking at the invoices to establish that shack No 102 had been added.
It is not disputed between the parties that the applicant has been paying a 'lease fee' in relation to his occupation of part of the reserve since around 1994 when the reserve was vested in the respondent. The respondent produced an invoice, issued to the applicant in October 2013, which indicates that the applicant was charged a 'coastal squatters lease fee', which is an annual fee, for 'shack #103&104' for a total of $2,200 (Exhibit 12). Other than this, the Tribunal was offered no evidence capable of establishing exactly what the applicant was charged by the respondent by way of a 'coastal squatters lease fee' each year from 1994 to 2012, or to which shacks those charges related.
In its bundle of documents (Exhibit 1), the respondent provided a copy of a standard form lease for the lease of a shack located within the reserve. The area where the date of the agreement is to be inserted into the standard form lease specifies the year 1994. The standard form lease states that the lease is subject to the approval in writing of the Minister for Lands (Minister) under the Land Act 1933 (WA), and approval of the Minister under s 267 of the Local Government Act 1960 (WA). The terms of the standard form lease are not entirely in conformity with the indication of the general terms and conditions of fisher shack leases as identified in the Fisher Shack Policy. Relevantly, the standard form lease does not allow any assignment, mortgage, charge, sublet or parting of possession of the leased premises. In addition, it is a term of the standard form lease that 'if the leased premises are at any time during the term destroyed or so damaged as to be wholly unfit for occupation and use, either party may by notice in writing … determine his Lease'. The standard form lease does not expressly authorise rebuilding or relocation of a shack destroyed by natural causes.
The respondent did not produce to the Tribunal any actual lease entered into by the applicant in relation to any shack located within the reserve. The evidence of Mr Fotheringham, manager of planning services for the respondent, was that this was because the Shire had not been able to find any such lease. The applicant's evidence was that he recalled initially signing a lease, sometime around 1994, in relation to his shack(s), but that he could not recall ever signing any new lease. The form of the invoice for rent issued to the applicant in 2013 is consistent with what seems to have been the belief of both the respondent and the applicant: that the applicant had entered a lease agreement in relation to shacks No 103 and 104.
I find that the applicant was genuine in his evidence to the Tribunal, and I am satisfied that he related relevant events truthfully, to the best of his recollection. The respondent did not produce any evidence that was necessarily inconsistent with the applicant's recollection of events. I am satisfied that the applicant occupied both shacks No 103 and 104 and had a half share of shack No 99 as at the beginning of February 1994. Given that the respondent was able to locate a standard form lease that was obviously prepared in contemplation of leases being executed in accordance with the vesting order of 1994, the recollection of the applicant about signing a lease, and the terms of the 2013 invoice for rent, I am satisfied that it is more likely than not that the applicant and the respondent did enter into a lease agreement, in accordance with the standard form lease, in relation to shacks No 103 and 104. I am satisfied that the applicant has been paying 'rent' to the respondent for the occupation of those two shacks ever since 1994. However, the lease agreement, on its terms, expired, at the latest, at midnight on 30 June 2000. There is no evidence that the applicant entered into any other written lease with the respondent.
I accept that Mr Chitty purported to transfer to the applicant his interest in the site on which shack No 102 had been located in around January 2000. I am not satisfied that any lease agreement was reached between the applicant and the respondent in relation to the applicant's purported occupation of the site of shack No 102, nor am I satisfied that he paid the respondent any 'rent' in relation to that site.
A letter from an officer of the Department of Lands to the Shire's Chief Executive Officer stated that the respondent had not sought or requested Ministerial consent in relation to any lease agreements within the reserve: see Exhibit 1. No evidence to the contrary was produced by any party, and therefore I find that, in fact, the Minister did not consent to any lease agreement between the applicant and the respondent with respect to any shack within the reserve. It is not necessary, for the purpose of these proceedings, to determine the legal effect of that lack of consent in terms of whether a final lease ever existed in relation to the applicant's occupation of shacks No 103 and 104. It is sufficient to note that, in the absence of the Minister's consent in writing to the original lease relating to shacks No 103 and 104, or to any further lease agreement made under the management order, the applicant's occupation of those shacks was never entirely consistent with the vesting order or the management order in relation to the reserve.
It is also relevant to note that under the current management order, any lease of part of the reserve could only extend until 30 June 2015, if it was to be consistent with that order. To the extent that the applicant wishes to obtain development approval to build, or relocate, his shack within the reserve so that he can occupy that shack until he retires in approximately 10 years' time, the proposal is inconsistent with the letting purpose of the reserve, in that it contemplates his occupation of the reserve well after 30 June 2015.
Before leaving this issue, it is necessary to address the applicant's argument that he was simply relocating his shack, No 104, to the site of the old shack, No 102, rather than building a new shack. The letting purpose of the reserve is limited to the letting of 'cottages existing thereon on 14 February 1994'. I am satisfied that a shack (or cottage) did exist on site No 102 on that date. However, that shack was later dismantled by Mr Chitty before he purported to transfer the site of that shack to the applicant. I accept that the applicant took some of the materials that he had salvaged from his shack, No 104, and used them, together with some new materials, to make the 'new' shack located on the site of the old shack, No 102. I am not persuaded, on the facts, that the applicant simply relocated his shack to a new site, as he asserts. Parts of shack No 104 had been washed away and the applicant had to use some new materials in order to build the new shack. In addition, the applicant incorporated into his new shack a small part of the original shack, No 102, that had been left in place by Mr Chitty. While the applicant was recycling some of the materials from shack No 104, I am satisfied that, in substance, he built a new shack at the site of old shack No 102. This new shack did not exist on the reserve on 14 February 1994. As such, the letting purpose of the reserve does not extend to the applicant's new shack.
Even if the applicant had simply relocated a shack that had existed on the reserve on 14 February 1994, that relocation would also not be consistent with the letting purpose of the reserve. The power to lease part of the reserve can only be exercisable in relation to an area of land within the reserve. The 'cottages' or shacks themselves were never owned by the respondent or the Crown, and could not have been effectively leased by the respondent. The applicant, between 1994 and 2000, did have a lease that entitled him to occupy the part of the reserve on which shack No 104 was located. The applicant has never had any lawful right to occupy the part of the reserve on which shack No 102 was located. The purported transfer of that site by Mr Chitty to the applicant was not allowable under the standard form lease, nor was it consistent with the terms of the Schedule to the vesting order for the reserve.
For all of these reasons, I am not satisfied that the construction, or relocation, of a shack on the site of old shack No 102 within the reserve is consistent with the ultimate purpose intended for the reserve.

Matters set out in cl 10.2 of LPS 5

Clause 10.2(a) of LPS 5 refers to the aims and provisions of the Scheme. As I have found that the development application is not consistent with the ultimate purpose intended for the reserve, it follows, to that extent, that the application is contrary to the provisions of LPS 5. I also consider that the applicant's development proposal is not consistent with the aims of LPS 5, as expressed in cl 1.6 of the Scheme.
The shack is intended to provide housing whilst the applicant is engaged in commercial fishing. One of the Scheme's aims is to provide for housing choice with high levels of amenity (cl 1.6(c) of LPS 5). It cannot be said that the shack, which is a very basic structure made largely of corrugated iron and with no insulation, provides a high level of amenity. Nor can it be said that the shack 'safeguard[s] and enhance[s] the character and amenity of the built and natural environment of the Scheme area': cl 1.6(h) of LPS 5). The location of the shack is not sustainable given its very close proximity to the shoreline and the failure of the development proposal to address, or in any way manage or attenuate, the risk of coastal hazards in that location. The development proposal also does not contribute to the use of this part of the reserve for public recreation purposes nor does it enhance or protect the coastal resource, contrary to the aims expressed in clauses 1.6(e) and 1.6(g) of LPS 5.
Clause 10.6(b) of LPS 5 requires consideration of the requirements of orderly and proper planning. Clauses 10.6(c) and 10.6(zb) of LPS 5 refer to relevant State planning policies and to the local Strategy respectively.
The location of the new shack is, at its closest edge, just over 9 metres from the edge of natural vegetation abutting the beach area: see Exhibit 10. According to the survey showing the location of relevant shacks in 1994 (Exhibit 4), the site of old shack, No 102, was, at that time, at its closest edge, just over 17 metres from the edge of natural vegetation abutting the beach. In 1994, the site of shack No 104 was approximately 7.6 metres from the edge of vegetation. Shack No 104 was subsequently washed away. The respondent asserts, and I accept, given the history of erosion identified in the surveys (Exhibits 4 and 10) and in the absence of any evidence to the contrary, that any development located at the site of old shack No 102 would be at risk of being affected by coastal hazards such as erosion and/or inundation. SPP 2.6 requires assessment and management of coastal hazard risks and adaption planning where development is to occur within an area of coastal hazard risk. There has been no attempt to avoid or adapt to those risks in the applicant's development proposal.
The applicant's development proposal is not consistent with the policy measures specified at clause 5.2 of SPP 2.6. The applicant proposes development that is not adjacent to any existing settlement (other than the small number of remaining shacks scattered around the general vicinity), is in a location that has no existing infrastructure to speak of, and is of a type that cannot be said to complement and enhance the coastal environment in terms of its visual, amenity, social or ecological values. In addition, the applicant's proposal, which contemplates private occupation of part of the coastal foreshore reserve, is not consistent with the identified purposes of coastal foreshore reserves specified in SPP 2.6.
The applicant's development proposal is, to some extent, consistent with the local Strategy. That Strategy identifies Freshwater Point as a locality suitable for development of a professional fishers' camp and fishers' centre. The area is described in the local Strategy as an attractive sheltered location and a centre for professional fishing activity. Interestingly, the applicant gave evidence that although there was at one time approximately 37 to 42 boats moored in the ocean adjacent to his shack site, there are now, at most, approximately seven (large) boats located there. The applicant also stated that he was currently the only person using the camp. It may be, therefore, that at least some of the factors identified as rendering Freshwater Point suitable for development of a professional fishers' camp no longer exist. In any event, the local Strategy, while it does specify Freshwater Point as a suitable location for a professional fishers' camp, contemplates demolition of all existing shacks and the construction of appropriate new facilities and associated infrastructure, including effluent treatment and disposal, proper toilet and ablution facilities, and the provision of power and lighting. The local Strategy also specifies that all of the new sites for the fishing camps are to be set back more than 85 metres from the foreshore vegetation line on high ground.
Taking into account the matters required to be considered pursuant to cl 10.2 of LPS 5, the applicant's proposal is largely inconsistent with those matters and does not reflect orderly and proper planning.

Conclusion

The correct and preferable decision is that the application for retrospective planning approval to construct, or relocate, a shack on the site of old shack No 102 within the reserve should be refused. The proposal is not consistent with the ultimate purpose of the reserve and, taking into account the matters specified in cl 10.2 of LPS 5, does not reflect orderly and proper planning. Therefore, the respondent's decision should be affirmed.

Orders

For the reasons set out above, the Tribunal makes the following orders:
1.The respondent's decision of 25 March 2014 to refuse to approve the applicant's application for retrospective planning approval as identified in the plan dated February 2014 labelled 'Existing Building C (Proposed Shack) in its future state' (Exhibit 9) is affirmed.
2.The application is dismissed.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER