LISTER and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF PLANNING AND INFRASTRUCTURE

[2006] WASAT 304

LISTER and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2006] WASAT 304

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 304
Act:	JETTIES ACT 1926 (WA)
Case No:	DR:229/2006	Heard:	26 SEPTEMBER 2006
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	29/09/06
No of pages:	17	Judgment Part:	1 of 1
Result:	Application for review allowed Jetty licence granted subject to conditions
Category:	B
PDF Version

Parties:	ROBYN LISTER CHIEF EXECUTIVE OFFICER, DEPARTMENT OF PLANNING AND INFRASTRUCTURE
Catchwords:	Jetties – Jetty licence – Private timber jetty to moor 8 metre long vessel – Applicant's property separated from canal by 3 metre wide public access way – Proposed license entirely within canal on opposite side of canal from applicant's property – Proposed license abuts strata title land on which grouped dwellings are erected – Strata title land subject to 3 metre wide public access easement adjoining canal – Whether grant of jetty license is futile, because jetty is unable to be built or accessed from strata title land – Whether jetty unsafe – Whether application should be refused because strata council previously lodged jetty license application – Policy that licence will only be granted for a jetty where located on private property which has a waterside boundary – Policy not relied on by respondent in review – Policy relied by strata council in submission – Whether policy should not be applied in the circumstances of the case
Legislation:	City of Mandurah Town Planning Scheme No 6 - Mandurah Marina Waterway Management Scheme,  cl 1.6, cl 1.7, cl 5.1, cl 5.4.2 Jetties Act 1926 (WA), s 3, s 7, s 7A Planning and Development Act 2005 (WA), s 74 State Administrative Tribunal Act 2004 (WA), s 32(4)
Case References:	Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 43 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Spinaway Holdings Pty Ltd v City of Mandurah & Anor [2004] WASC 282 Nil
Orders	1. The application for review is allowed.,2. The decision of the respondent to refuse to grant a licence to the applicant under s 7 of the Jetties Act 1926 (WA) for the erection, construction and use of a jetty on reserve 46013 is set aside and a decision is substituted granting a licence subject to the following conditions:,(i) The jetty shall be located in the position of the jetty shown between MM83 and MM85 on the plan entitled Residential Jetties and Mooring Envelopes General Arrangement Plan drawing number D204­01-01 issue B dated 3 September 1997 drawn by MP Rogers and Associates Pty Ltd.,(ii) The jetty shall be located entirely on Reserve 46013. The jetty may not encroach upon Lot 190 which is subject to strata plan 43417.,(iii) The jetty shall be constructed in accordance with the engineering plan SC086-01-01A dated 6 August 2005 drawn by Searle Consulting Pty Ltd, noting, however, that the plan is incorrect in its location of the property boundary of Lot 190 and a second property boundary shown on it.,(iv) No vessel in excess of 8.0 metres in length may be moored at the jetty.,(v) This licence expires on 29 September 2011.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : JETTIES ACT 1926 (WA) CITATION : LISTER and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2006] WASAT 304 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 26 SEPTEMBER 2006 DELIVERED : 29 SEPTEMBER 2006 FILE NO/S : DR 229 of 2006 BETWEEN : ROBYN LISTER

Applicant

AND

CHIEF EXECUTIVE OFFICER, DEPARTMENT OF PLANNING AND INFRASTRUCTURE
Respondent

Catchwords:

Jetties – Jetty licence – Private timber jetty to moor 8 metre long vessel – Applicant's property separated from canal by 3 metre wide public access way – Proposed license entirely within canal on opposite side of canal from applicant's property – Proposed license abuts strata title land on which grouped dwellings are erected – Strata title land subject to 3 metre wide public access easement adjoining canal – Whether grant of jetty license is futile, because jetty is unable to be built or accessed from strata title land – Whether jetty unsafe – Whether application should be refused because strata council previously lodged jetty license application – Policy that licence will only be granted for a jetty where

(Page 2)

located on private property which has a waterside boundary – Policy not relied on by respondent in review – Policy relied by strata council in submission – Whether policy should not be applied in the circumstances of the case

Legislation:

City of Mandurah Town Planning Scheme No 6 - Mandurah Marina Waterway Management Scheme, cl 1.6, cl 1.7, cl 5.1, cl 5.4.2

Jetties Act 1926 (WA), s 3, s 7, s 7A
Planning and Development Act 2005 (WA), s 74
State Administrative Tribunal Act2004 (WA), s 32(4)

Result:

Application for review allowed

Jetty licence granted subject to conditions

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Ms CA Ide with Ms K Chivers

Solicitors:

Applicant : Self-represented
Respondent : State Solicitor's Office

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 43
Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313
Spinaway Holdings Pty Ltd v City of Mandurah & Anor [2004] WASC 282

Case(s) also cited:

Nil
(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Ms Lister applied for the grant of a jetty licence on a canal in a marina estate approximately 14 to 28 metres from her property.

2 The Tribunal determined that a jetty licence should be granted for an initial period of five years.

3 The Tribunal found that the grant of a licence would not be futile, as it was possible that Ms Lister would obtain all other necessary authorisations and as the jetty could be built, maintained and used without authorisation from the owner of the land which abutted the proposed licence.

4 The Tribunal found that the jetty would be safe.

5 The Tribunal considered that, although another application for a jetty licence on the same site had been received before Ms Lister's, having regard to the original decision-maker's policy and practice of requiring that a community association must first specify or confer a right to use a mooring before a jetty licence is granted, Ms Lister's application, which accorded with a specified or conferred mooring right, should not be refused on account of the earlier application, which did not accord with a specified or conferred mooring right.

6 The Tribunal determined that a policy which contemplated that a jetty licence would not be granted to a property which did not abut the waterway should not be strictly applied in the circumstances of the case. Ms Lister's property was only separated from the water by a 3.0 metre wide public accessway. The decision-maker had also previously granted licences to properties which did not abut the water, but which had mooring rights specified or conferred by the community association.

Introduction

7 These proceedings involve an application brought by Ms Robyn Lister pursuant to s 7A of the Jetties Act 1926 (WA) (Jetties Act) for a review of the decision of the Chief Executive Officer of the Department of Planning and Infrastructure (CEO) to refuse Ms Lister's application for a jetty licence. Section 7 of the Jetties Act provides that the CEO 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 a jetty. The term "jetty" is defined in s 3 of the

(Page 4)

Jetties Act to include any jetty, whether fixed or floating, erected or placed, wholly or in part, in, on or over any waters.

8 Ms Lister owns and resides at a property in the Mandurah Marina Estate (estate), which is a canal development located between Old Coast Road, Mandurah, and the Peel Inlet. The estate includes two canals. Ms Lister's property is adjacent to the northern side of the northern canal and is only separated from it by a 3.0 metre wide public accessway. The northern canal comprises a reserve for the purpose of waterway vested in the City of Mandurah (City) as a reserve under a management order. The conditions of the management order are that the canal is to be utilised for the designated purpose of "Waterway" and that the City has power to lease, sublease or licence the whole or any portion of the canal for a term not exceeding 21 years subject to the prior approval in writing of the Minister for Lands. The northern canal is referred to in these reasons as the canal reserve.

9 The jetty licence for which Ms Lister has applied is for the erection, construction and use of a 1.0 metre wide and 13.6 metre long jetty, to be built on four piers, on the southern side of the canal reserve. The proposed jetty would be constructed entirely on the canal reserve. The jetty would abut, but not encroach upon, the property which immediately adjoins the canal reserve to its south, which is known as Lot 190. Lot 190 comprises a strata title development of 32 lots known as San Marco Quays. A 3.0 metre wide strip of Lot 190, which immediately adjoins the canal reserve, is subject to a public access easement.

10 Ms Lister's residence has a direct line of sight to the location of the proposed jetty, which is approximately 14 to 28 metres from her property boundary. In order to get to the proposed jetty from her property, Ms Lister would need to walk only about 50 metres along the footpath of a road reserve, a public accessway adjoining the western edge of the canal reserve, and, for the last 10 metres, the public access easement on the northern side of Lot 190. Attachment A to these reasons is a plan which shows the relationship between Ms Lister's property and the proposed jetty, which are both highlighted. At the time the plan was prepared, Ms Lister's property was Lot 191. Subsequently, Lot 191 was sub-divided in a battleaxe arrangement, with Ms Lister retaining the battleaxe portion. The plan shows Lot 190 as a commercial site, which was its originally designated use. The 3.0 metre wide pedestrian accessway shown at the northern edge of Lot 190 is in the same location as the 3.0 metre wide public access easement.

(Page 5)

11 The City of Mandurah Town Planning Scheme No 6 - Mandurah Marina Waterway Management Scheme (LPS 6 or Scheme) was gazetted on 16 August 1995 and has as its object "to provide for the short and long term management of the Waterways contained within the Mandurah Marina Estate" (cl 1.6). The canals in the estate are relevantly "Waterways" for the purposes of LPS 6. Clause 5.1 of the Scheme requires the formation of the Mandurah Marina Waterway Management Association (Inc) which is known as the Community Association. Clause 5.4.2 of the Scheme, which is entitled "Rights", provides as follows:

"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 a 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."

12 Clause 1.7 of the Scheme provides that the term, mooring, includes a jetty.

13 The Community Association was incorporated on 23 October 1995. On 14 June 1999, the Community Association adopted a jetty allocation plan for the estate (allocation plan) which is Attachment A to these reasons. The allocation plan specifies or confers a right under LPS 6 on nominated properties in the estate, which do not adjoin either of the canals, to use nominated moorings in the canals. The specification or conferral of a right of a property to use a mooring is designated by a line connecting the property and the mooring. By the allocation plan, the Community Association specified or conferred the right under LPS 6 on Ms Lister's property to use moorings MM83 and MM85, which are the moorings on either side of the jetty shown in the location of the jetty proposed in the subject application. In addition, on 13 July 1999,

(Page 6)

and again on 4 March 2003, the Community Association confirmed that the owner of Ms Lister's property has an entitlement to mooring embayments MM83 and MM85.

14 The allocation plan did not specify or confer a right to use any mooring on Lot 190 in the estate, which, as noted earlier, was then a commercial site.

15 The developer of the strata development on Lot 190 commenced Supreme Court proceedings against the City seeking a declaration that the allocation plan is invalid and not binding on it: see Spinaway Holdings Pty Ltd v City of Mandurah & Anor[2004] WASC 282. The Community Association became the second defendant in those proceedings. The Court held, at [50], as follows:

"The Scheme TPS 6 has, by virtue of the Town Planning and Development Act 1928 s 7(3), the status of a written law. Thus, the [Community Association] has a statutory right to make allocations pursuant to TPS 6. That right is not expressly subject to the [Community Association] holding any other interest in the waterways and there is no basis to imply such a restriction. The allocation Plan is, obviously, simply a plan indicating the allocations that the [Community Association] makes in relation to the waterways pursuant to its rights and obligation under the Scheme … [There] is no basis for a declaration the Plan is not binding upon the plaintiff."

16 On 17 September 2003, Ms Lister obtained development approval from the City to erect and use the jetty which is now the subject of the application for a jetty licence. The development approval stated that it was valid until 17 September 2005. Although Ms Lister sought a building licence from the City for the construction of the jetty in August 2005, the City failed to address her application prior to the expiry of the development approval.

17 On 28 November 2005, Ms Lister made the subject application for a jetty licence under s 7 of the Jetties Act to erect, construct and use a jetty to moor a vessel with a maximum length of 8.0 metres. As noted earlier, the proposed jetty licence is wholly in the canal reserve, although abutting the public access easement portion of Lot 190.

18 It appears that 62 days before Ms Lister applied for the jetty licence, the San Marco Quays Strata Council (strata council) lodged an application

(Page 7)

for a jetty licence under s 7 of the Jetties Act to erect, construct and use 10 jetties on the southern side of the canal reserve adjoining Lot 190, to moor 18 vessels, and to use the southern canal adjacent to the southern boundary of Lot 190 to moor a further 13 vessels. The strata council's licence application seeks approval to moor 31 vessels, rather than one vessel for each of the 32 strata units, because there is insufficient space adjoining the boundaries of Lot 190 with the canals for more than 31 vessels. The 10 jetties and 18 moorings along the southern side of the canal reserve would occupy the same location as the seven jetties and 14 moorings shown on the allocation plan approved by the Community Association. The Community Association has not specified or conferred the right to use any moorings on the southern side of the canal reserve on the strata council or the individual strata unit owners on Lot 190.

19 On 15 August 2006, following public notification, the City resolved to revoke LPS 6. However, it is common ground that LPS 6 remains an operative local planning scheme under the Planning and Development Act 2005 (WA) (PD Act). LPS 6 would only cease to be an operative local planning scheme if the Minister for Planning approves an instrument of repeal prepared by the City and the instrument is published in the Gazette in accordance with s 74 of the PD Act. There is no evidence as to whether an instrument of repeal has been prepared and provided to the Minister, nor is there evidence as to the Minister's position in relation to the proposed repeal.

20 It is common ground that a maximum of 18 vessels can be moored in the canal reserve, which is the number proposed in the strata council's licence application. It is also common ground that Ms Lister's licence application and the strata council's licence application are mutually exclusive, at least in relation to the immediate area the subject of Ms Lister's application. Although, as noted earlier, the strata council's licence application was lodged approximately two months before Ms Lister's application, it has not been determined. Mr Ronald Zappara, Manager of Property Services, Coastal Facilities Business Unit of the Department for Planning and Infrastructure, gave evidence that the only reason why a jetty licence has not been granted to the strata council's application is that the CEO's policy or practice is relevantly not to approve an application until the Community Association has specified or conferred a right to use the mooring in question under LPS 6. The Tribunal will return to this aspect in relation to the third issue for determination below.

(Page 8)

Issues for determination in the review
21 The following three issues were ultimately identified by the CEO for determination in the review:

1. Whether the grant of a jetty licence would be futile.

2. Whether the proposed jetty would be safe.

3. Whether the strata council's jetty licence application should be determined first.

22 At the commencement of the hearing, the strata council, which was represented by counsel, made application for leave to make submissions pursuant to s 32(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 32(4) provides that the Tribunal may inform itself on any matter as it sees fit. The strata council indicated that it did not wish to be joined as a party to the proceedings. Over Ms Lister's objection, the Tribunal granted leave for the strata council to make a written submission which became Exhibit 1; cfDouble Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313.

23 The Tribunal will consider each of the three issues identified by the CEO in turn. It will then consider the submission made by the strata council.

Is the grant of a jetty licence futile?

24 Ms CA Ide, who appeared with Ms K Chivers on behalf of the CEO, submits that Ms Lister's application should be refused, because the grant of a jetty licence would be futile. In particular, Ms Ide submits that the strata council will not grant its approval for Ms Lister to use Lot 190 to construct, maintain or use the jetty or to affix the jetty to Lot 190. It is clear from the strata council's submission that it would not grant any approval to Ms Lister if its approval were required to construct, maintain or use the proposed jetty.

25 The Tribunal considers that, if the grant of a jetty licence is futile, and in particular if there is no possibility that an applicant could obtain any necessary regulatory or private authorisation in order to erect, construct, maintain or use a jetty, the application ought properly be refused under s 7 of the Jetties Act.

(Page 9)

26 However, in the circumstances of this case, the grant of a licence would not be futile. Significantly, the approval of the strata council is not required in order to erect, construct, maintain or use the proposed jetty.

27 The proposed jetty would be located entirely on the canal reserve which is vested in the City. The jetty is not proposed to be affixed to Lot 190. Although Ms Lister would still require development approval, a building licence and a lease from the City, the evidence does not establish that there is no possibility that she could obtain these authorisations.

28 Ms Lister indicated that the jetty would be constructed from a barge and that she does not require any services through Lot 190. There is no reason why the jetty could not be maintained from the jetty itself or from the water. Ms Lister also has a right, as a member of the public, to traverse the public access easement along the northern edge of Lot 190 in order to gain access to the proposed jetty.

Would the jetty be unsafe?

29 Mr Zappara raised two concerns in relation to the safety of the proposed jetty.

30 First, because the jetty would abut, but not encroach upon, Lot 190, there would be a gap between the edge of the jetty and the public access easement portion of Lot 190. However, photographs of existing jetties in the Mandurah area, which Mr Zappara considered are likely to be lawful, licensed jetties, show that small gaps can exist between jetties and land without unduly compromising the safety of the jetty. Mr Zappara indicated that, in order for these jetties to be licensed, engineering advice would have indicated that the arrangements are safe. Mr Zappara frankly conceded that he is not an engineer.

31 Second, Mr Zappara indicated that affixing the proposed jetty to a rock wall within the canal reserve might affect the structural stability of the wall. However, Mr Zappara is not an engineer. Furthermore, the City granted development approval for the jetty. Condition 2 of the development approval required that the jetty shall not place a horizontal surcharge load on the canal walls.

32 Mr Zappara indicated that the jetty plan appears to be standard in nature. He also said that the Department's engineering staff have reviewed the arrangement of jetties and moorings shown on the allocation plan and have determined that the arrangement is safe and navigable.

(Page 10)

33 Finally, it is noted that because the proposed jetty would abut, but not encroach upon, Lot 190, one would have to step across approximately 800 millimetres of unsealed limestone between the edge of the jetty and the concrete path on the public access easement. However, as Mr Zappara considered, this does not make the jetty unsafe. Moreover, the 800 millimetres of limestone forms part of the public access easement and can be used presently by members of the public.

34 It follows that the Tribunal does not consider that the proposed jetty would be unsafe.

Should the strata council's licence application be determined first?

35 Ms Ide submits that proper public administration of the Jetties Act requires that the strata council's application, which was received first in time, be determined first. It is common ground that the erection, construction and use of the jetty proposed by Ms Lister would preclude the erection, construction and use of some of the mooring arrangements proposed in the strata council's licence application and that the number of moorings proposed by the strata council is the maximum that can be accommodated in the canal reserve.

36 In his witness statement, Mr Zappara said that the CEO has given "in principle" approval to the strata council's licence application and will approve it in the near future. The Jetties Act does not provide for "in principle" approval. Until a jetty licence is granted by the CEO under s 7, the Act does not contemplate or provide for approval of an application, whether in principle or otherwise. In oral evidence, Mr Zappara explained that the CEO has determined that the engineering and ownership aspects of the strata council's licence application are in order, but the licence has not been granted because of the absence of Community Association approval. He said that "everything is in order, except for the [Community Association]".

37 The Tribunal considers that, if two jetty licence applications are received, which are mutually exclusive but each capable of approval and acceptable, proper public administration of the Jetties Act would require that, generally, the application which was received first in time should be determined first. However, according to the CEO's policy and practice indicated by Mr Zappara, the strata council's application is not capable of approval and acceptable, because the Community Association has not specified or conferred the right to use the mooring shown on the strata council's licence application on the strata council or the individual owners. The CEO considers that this omission is so significant that the strata

(Page 11)

council's licence application cannot or should not be approved. In contrast, Ms Lister satisfies the CEO's policy and practice in relation to authorisation by the Community Association.

38 It follows that, in the circumstances of this case, having regard to the CEO's policy and practice, proper public administration of the Jetties Act does not require that the strata council's licence application be determined first.

Strata council's submission

39 The strata council makes essentially four submissions.

40 First, it submits that approval of Ms Lister's application is contrary to the CEO's Private Jetties Policy (Jetties Policy). The Jetties Policy states that an application "located on private property which has a waterside boundary" may be recommended for approval, provided that certain criteria are met. Although one of the CEO's reasons for refusal of Ms Lister's licence application was that her property does not share a common boundary with the canal, the CEO did not ultimately rely on the Jetties Policy in the review.

41 Justice Barker, sitting in the Supreme Court, held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 43 at [24], that the existence of a policy "is not intended to replace the discretion of the decision-maker in the sense that it is inflexibly applied regardless of the merits of the particular case before it", although "the relevant consideration in many applications will be why the 'policy' should not be applied".

42 The Tribunal considers that it would be inappropriate, in the particular circumstances of this case, to strictly apply the Jetties Policy so as to refuse Ms Lister's application, for two reasons.

43 First, although Ms Lister does not have a waterside boundary, her property is adjacent to the water and is only separated from it by a 3.0 metre wide public accessway. As Mr Zappara explained in oral evidence, it would be inappropriate and indeed impossible to entertain and grant jetty licences in relation to properties which are remote from coastal locations. However, Ms Lister's property is hardly remote. The relationship between her property and the canal reserve would be little different if her property extended to the reserve, but was subject to a 3.0 metre wide public access easement, such as the easement which burdens Lot 190.

(Page 12)

44 Second, the CEO has granted other jetty licences within the estate to properties which are more remote from the water than is Ms Lister's, in circumstances where the Community Association has specified or conferred the right to use the mooring in question under LPS 6. In particular, Attachment A shows a number of properties in Rialto Place, which have moorings on the southern canal accessed through a public accessway and a jetty accessway which is apparently on private property.

45 The second submission made by the strata council is that the City has a policy of requiring the approval of a strata development which is adjacent to a proposed jetty or mooring. The strata council submits that it would never approve such an application.

46 However, assuming that the strata council has correctly characterised the City's policy, it is not a policy of the CEO. Furthermore, as noted earlier, a policy may not be inflexibly applied without regard to the particular facts and circumstances of a case.

47 Third, the strata council submits that granting Ms Lister's application would give rise to a potential for social disharmony and problems. In particular:

• residents on the northern side of the strata development would face the prospect of "foreign vessels" moored in front of their units;

• the strata council would not have power to control the noise, behaviour, social problems, or rubbish disposal of non Lot 190 owners servicing their boats;

• there is no available parking for vehicles and trailers of non Lot 190 owners;

• units owners would have to put up with the visual intrusion and nuisance that would result from non Lot 190 owners servicing and accessing their boats from unspecified distant parking areas; and

• the strata council would not service non Lot 190 jetties with water or power.

48 However, assuming that it is a relevant consideration in relation to whether to grant a jetty licence, the Tribunal does not consider that the proposed licence would cause social disharmony or problems of the
(Page 13)

nature referred to by the strata council. The proposed jetty would be located entirely on the canal reserve. Although Ms Lister would need to use approximately 10 metres of the public access easement to gain access to the jetty, the public have a right to use the easement at present. Moreover, the photographs in evidence show that the character of the foreshore on Lot 190 is public, not private, and is essentially the same as the character of the foreshore adjoining Ms Lister's property. Attachment B to these reasons contains photographs showing the character of the foreshore on Lot 190 (photos 4 and 6) and the foreshore adjoining Ms Lister's property (photos 3 and 5).

49 Moreover, as noted earlier, the estate already contains a number of examples of moorings located adjacent to, and in some instances requiring access over, other people's property.

50 Furthermore, Ms Lister is less "foreign" than the Rialto Place residents are to their respective moorings, given that her property has a direct line of sight and is separated by only 14 to 28 metres from the proposed jetty. Further, she does not require vehicle parking beyond her own property or services through Lot 190.

51 Finally, the strata council submits that, as it would not own or control the proposed jetty, it would not be able to maintain it. This could lead to safety issues around Lot 190 and resulting visual and financial detriment to the strata complex.

52 However, the strata council would not be responsible for the maintenance of the jetty itself. As the public access easement burdens its land, it is presumably responsible for the easement which is already used by the public. The Tribunal has found that the access between the jetty and the easement would be safe. Furthermore, as the Tribunal considers that the jetty licence should be initially limited to a term of five years, it would be open to the CEO to refuse to regrant a licence on the basis that the jetty is not being properly maintained.

Conclusion

53 The Tribunal considers that a licence should be granted to Ms Lister to erect, construct and use the proposed jetty for an initial period of five years. A five year period should be sufficient to obtain other regulatory approvals and a lease from the City, to physically erect and construct the jetty, and to use it. It is appropriate that the CEO should have an opportunity to consider whether to continue to licence the jetty after it has been constructed and the use has commenced.

(Page 14)

It is also appropriate that the licence be conditioned that no vessel in excess of 8.0 metres may be moored at the jetty. This condition reflects the application and Mr Zappara's evidence that only 8 metre long vessels can be safely and appropriately accommodated in the canal.

54 As Mr Zappara observed in evidence, the principal considerations in relation to an application for the grant of a jetty licence are safety and navigability. The Tribunal is satisfied that the proposed jetty is both safe and navigable.

55 Although it would be inappropriate to grant a jetty licence which would be futile, because the jetty could not be erected, constructed, maintained or used, the Tribunal has found that the grant of a jetty licence would not be futile in the circumstances of this case.

56 Furthermore, if two jetty applications are received, which are mutually exclusive, but each capable of approval and acceptable, generally, proper public administration of the Jetties Act would require that the application which was received first in time should be determined first. However, in the circumstances of this case, and having regard to the CEO's policy and practice, the strata council's application is not acceptable, as it does not accord with mooring rights specified or conferred by the Community Association under LPS 6, whereas Ms Lister's application is, as it does accord with specified or conferred mooring rights. It follows that, in the circumstances of this case, the application which was received second, but which accords with rights specified or conferred by the Community Association under LPS 6, should not be refused.

57 Finally, the Tribunal does not consider that the Jetties Policy, which contemplates that a jetty licence can only be granted in respect of a property which has a waterside boundary, should be strictly applied such that Ms Lister's application should be refused. Although Ms Lister's property does not have a waterside boundary, it is adjacent to the water and is only separated from it by a 3.0 metre wide public accessway. The CEO has itself granted licences within the estate for properties which are more distant from their allocated mooring than is Ms Lister's property, where the Community Association has specified or conferred rights to use the moorings in question.

(Page 15)

Orders

58 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 under s 7 of the Jetties Act1926 (WA) for the erection, construction and use of a jetty on reserve 46013 is set aside and a decision is substituted granting a licence subject to the following conditions:


(i) The jetty shall be located in the position of the jetty shown between MM83 and MM85 on the plan entitled Residential Jetties and Mooring Envelopes General Arrangement Plan drawing number D204­01-01 issue B dated 3 September 1997 drawn by MP Rogers and Associates Pty Ltd.

(ii) The jetty shall be located entirely on Reserve 46013. The jetty may not encroach upon Lot 190 which is subject to strata plan 43417.

(iii) The jetty shall be constructed in accordance with the engineering plan SC086-01-01A dated 6 August 2005 drawn by Searle Consulting Pty Ltd, noting, however, that the plan is incorrect in its location of the property boundary of Lot 190 and a second property boundary shown on it.

(iv) No vessel in excess of 8.0 metres in length may be moored at the jetty.

(v) This licence expires on 29 September 2011.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER

(Page 16)

Attachment A

(Page 17)

Attachment B