Lister and Department of Transport

[2012] WASAT 192

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: JETTIES ACT 1926 (WA)

CITATION:   LISTER and DEPARTMENT OF TRANSPORT [2012] WASAT 192

MEMBER:   MR P McNAB (SENIOR MEMBER)

HEARD:   12 AND 13 JUNE 2012

DELIVERED          :   13 JUNE 2012

PUBLISHED           :  20 SEPTEMBER 2012

FILE NO/S:   DR 39 of 2012

BETWEEN:   ROBYN LISTER

Applicant

AND

DEPARTMENT OF TRANSPORT
First Respondent

THE OWNERS OF STRATA PLAN 43417 SAN MARCO QUAYS
Second Respondent

Catchwords:

Jetties ­ Jetty licence ­ Private timber jetty ­ Strata complex ­ Applicant's proposed jetty separated from canal by public accessway ­ Proposed licence entirely within canal on opposite side of canal from applicant's residence ­ Proposed licence area abutted strata title land on which grouped dwellings were erected ­ Strata title common property subject to 3 metre wide public access easement adjoining canal ­ Tribunal previously granted jetty licence for five years ­ Failure of applicant to build jetty within this period ­ Whether any justification for failure to build jetty ­ Department of Transport and strata owners opposed to renewal because of failure to build jetty and alleged futility ­ Jetty apparently unable to be built or accessed from strata title common property ­ Department's policy that licence will only be granted for a jetty where located on private property which has waterside boundary ­ Whether policy has application in circumstances of case ­ Planning approval given by local government ­ Building licence granted by local government ­ Seabed lease to be granted by local government ­ Whether discretion in Tribunal should be informed by community 'social and moral values' as to fairness ­ Status or nature of proprietary or other rights vested in applicant ­ Review allowed ­ Department directed to issue jetty licence in standard form renewable from year to year

Legislation:

City of Mandurah Town Planning Scheme No 6
Jetties Act 1926 (WA), s 7, s 7A

Result:

Application for review allowed
Decision under review set aside

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

First Respondent          :     Dr S Willey

Second Respondent      :     Self-represented

Solicitors:

Applicant:     N/A

First Respondent          :     State Solicitor's Office

Second Respondent      :     N/A

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

Edwards and Chief Executive Officer of the Department of Planning and Infrastructure [2007] WASAT 292

Edwards v Department of Planning and Infrastructure [2007] WASAT 101; (2007) 155 LGERA 1; (2007) 52 SR (WA) 328

Lister and Chief Executive Officer, Department of Planning and Infrastructure [2006] WASAT 304; (2006) 45 SR (WA) 345

Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690

Spinaway Holdings Pty Ltd v City of Mandurah [2004] WASC 282

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. A review was sought by Ms Robyn Lister of a decision of the Department of Transport to refuse Ms Lister an application for a jetty licence.  Her jetty was to be built wholly within the northern most canal in the Mandurah Marina Estate.  The City of Mandurah had granted all necessary regulatory approvals for the jetty.  The location of the jetty was on the opposite side of the canal, and a public access easement on strata common property abutted the jetty seabed area.  Ms Lister had no relevant interest in the common property as it was owned by another strata scheme.

2. The application for a jetty licence was made so as to have effect immediately upon the expiry of an earlier five year jetty licence that had been granted by the Tribunal in September 2006.

3. For various reasons, the jetty had neither been built nor had construction of it commenced under that earlier approval.

4. The Department of Transport contended that the correct and preferable decision, particularly as the jetty had not been built or substantially commenced in the intervening five year period, would be, in effect, to open the two moorings previously granted to the applicant (one on either side of the proposed jetty) for other users.  This would achieve the Department's policy objective of restricting jetty ownership to use of the seabed directly abutting an owner's land (including strata land).

5. The Tribunal examined the delays and inaction over the intervening period and concluded that, notwithstanding the applicant's failure to build her jetty, more or less active and continuous steps had been taken by her to exercise or implement her rights, entitlements or interests flowing from or connected with her previous grant of a jetty licence by the Tribunal in 2006.

6. The Tribunal concluded that the applicant should neither be singled out nor made to carry the total responsibility for the failure of the jetty to be constructed.

7. The Tribunal further concluded that it would be unfair in the circumstances of the case not to grant the applicant a renewal or extension of her jetty licence.  Arguments against taking this course, such as those relating to alleged difficulties in obtaining access across the adjoining public access easement and permission to use certain strata common property; securing the jetty's footings or other structures; and alleged safety and insurance matters, were not of sufficient substance to disentitle the applicant to a jetty licence.

8. The application for review was thus allowed and the decision under review was set aside.  The Tribunal directed the Department to issue a jetty licence in the standard form to Ms Lister.  This licence would be renewed from year to year in common with other jetty owners.

9. The Tribunal gave its reasons for decision shortly after the conclusion of the hearing.  What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.

Introduction

1. On 20 February 2012, Ms Robyn Lister (applicant) sought a review in this Tribunal of a decision of the first respondent, the Department of Transport (Department), made on 27 January 2012. This decision of the delegate of the Director General of Transport, Mr Jenkins (who gave evidence in these proceedings), was to refuse the applicant's application for a further or second jetty licence. The decision was made under s 7 of the Jetties Act 1926 (WA) (Jetties Act).

2. The jetty application, if it had been successful, was intended to have effect immediately upon the expiry of the applicant's first licence, that is, 30 September 2011.  This first licence had been granted by the Tribunal for a period of five years back in 2006: Lister and Chief Executive Officer, Department of Planning and Infrastructure [2006] WASAT 304; (2006) 45 SR (WA) 345 (Lister No 1).

3. The principal reason for refusal was the application of the Department's 'jetty licensing policy' which, in effect, favoured ­ and, generally speaking, for good reason ­ the grant of licences for jetties to those owners of land, or a person with an interest in such land, abutting the proposed jetty site.

4. Unfortunately for Ms Lister she was not such a person, and her proposed jetty ­ for it has still not been built, or even commenced ­ is on the opposite side of the canal, and some 14 ­ 28 metres from her property boundary.

5. The background to, the physical description of the subject land and the related interests held by the various parties, are all set out by Senior Member Parry (as he then was) in Lister No 1.  I gratefully adopt such details for the purposes of these introductory remarks.

6. Critically, Lister No 1 determined that the grant of a licence by the Tribunal on review of the Department's refusal of a licence under s 7A of the Jetties Act would not, in the circumstances, be futile. The Tribunal granted a jetty licence for a five year period on certain conditions.

7. That licence expired on 29 September 2011.  As I have mentioned, a jetty was not, in fact, built by the applicant or anybody else, and the failure to exercise that right, entitlement or interest has, at least in part, led us to this second review.

Arguments in opposition to the renewal

1. It is clear that the Department's position, and that of The Owners of Strata Plan 43417 San Marco Quays (second respondent), is essentially that, given the failure of the applicant to build her jetty and the alleged material changes in circumstances since 2006 (that is, changes from the position set out in Lister No 1), the correct and preferable decision is to now apply the policy of the Department and, in effect, open the mooring for other users.

2. Of some significance in Lister No 1 was the recognition of the statutory allocation of two moorings, that is, one on either side of the applicant's proposed finger jetty.  This was an allocation by the now dissolved Mandurah Marina Community Association.  Attempts to indirectly upset such allocations in related litigation before and after Lister No 1 have failed: see Spinaway Holdings Pty Ltd v City of Mandurah [2004] WASC 282 and Edwards v Department of Planning and Infrastructure [2007] WASAT 101; (2007) 155 LGERA 1; (2007) 52 SR (WA) 328; Edwards and Chief Executive Officer of the Department of Planning and Infrastructure [2007] WASAT 292 (Edwards).

3. In my view, those allocations cannot now be indirectly 'reopened' and such past allocations, so far as they are presently relevant, must be accepted for the purposes of this review.  Whatever the precise legal status of that allocation subsisting today, the practical effect of it was to 'merge' such rights into the licence granted by or under Lister No 1.  Nothing I have said on the point, however, should be taken to necessarily suggest that the allocation has no subsisting independent legal effect.  The repeal of the statutory instrument, City of Mandurah Town Planning Scheme No 6, or 'LPS 6', as it has also been referred to, under which the allocation was made, should prima facie and in principle not affect the status of this important proprietary right.  But, as I have indicated, it is unnecessary to rule upon its status because it was as a matter of fact foundational to the decision of Lister No 1.

4. There is no reason why, in principle, such a past factual matter cannot be foundational also in this review.  Mainly, as I see it, because of this allocation, the Tribunal in Lister No 1 did not apply the Department's policy to Ms Lister's case.

5. I should mention, as Dr Willey for the first respondent particularly emphasised, that Barker J, in Edwards, effectively endorsed and then went on to apply the Department's policy in the review before his Honour.  But nothing in that case affected Ms Lister's position, which was separately noted at some length by Barker J.

6. There is no doubt in my mind that if Ms Lister were here today for the first time - and perhaps even notwithstanding the statutory allocation that I have referred to ­ the case for the application to her present circumstances of the Department's policy may well have been much stronger, perhaps irresistibly so.  But she is not here for the first time and, to my mind, the only material change in the circumstances is the failure of the proposed jetty to be actually built or substantially commenced.

What happened in the last five years?

1. The intervening five year period could be objectively characterised by delay and inaction, but not always on Ms Lister's part.  There is also some negotiation recorded, proposed compromises, threatened and actual litigation, various proposed deals, and seemingly endless correspondence and meetings between the applicant, the first and the second respondents and the City of Mandurah.

2. I am not attracted to a lengthy inquiry apportioning the responsibility or blame attaching to any of the parties for this unsatisfactory state of affairs.  In any case, such an inquiry is not strictly necessary to determine the issue under review; suffice it to say that the applicant has satisfied me that more or less active and continuous steps were taken on her part to exercise her rights, entitlements or interests arising out of both the previous statutory allocation and the decision in Lister No 1.

3. In my view, Ms Lister is not to be singled out or made to carry responsibility for the resolution of what is a very complex regulatory problem.  'Complex' was a word properly invoked, it seems to me, by Dr Willey, as we are dealing here with a matrix of competing public (that is, State and private) interests and views.

Fairness dictates that Ms Lister should receive a jetty licence

1. Ms Lister has in place planning approval and a building licence issued by the City of Mandurah and there is, on the record from previous proceedings in the Tribunal, the advice proffered by counsel for the City of Mandurah to the effect that Ms Lister will be offered a corresponding seabed lease:  see the orders of Chaney DCJ (a Deputy President of this Tribunal, as he then was) dated 9 November 2007 in related proceedings.

2. In such circumstances, the preferable decision is to renew Ms Lister's jetty licence, to allow her to enjoy the fruits of her success in Lister No 1 and consequently to see where events lead.  It would be, in my view, also quite unfair in the particular circumstances that I have outlined not to grant Ms Lister a renewal or extension of her licence.

3. That fairness is a broad concept which might inform a review of a Tribunal's exercise of discretion when determining what is a preferable decision, and which clearly appears, for example, from the discussion of the application of community 'social and moral' values by Downes J in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690, at [62] ­ [83] in particular.

Remaining practical problems of access &c

1. The potential problems of access across a public accessway, of securing footings or other structures in connection with the ownership of common property (property that Ms Lister has no interest in), the alleged safety and amenity, and insurance concerns are not sufficient, in my view, to disentitle the applicant to a jetty licence.

2. The Department properly concedes that the proposed structure is, in itself, not in issue (from an engineering point of view) and any jetty licence will be confined to the actual canal reserve.

3. The Tribunal cannot force good sense (or good grace towards one another) on the parties, but I would hope that all of the parties would now work cooperatively towards solutions for any of these subsidiary practical issues.

4. In other circumstances, I would have imposed a time-related condition requiring substantial commencement of the works in connection with the jetty licence that I will, in effect, grant today.  My fear, given events to date, is that such an 'incentive' imposed on Ms Lister might well lead to further problems for her and others.

5. Otherwise, it seems to me that there is no reason, despite the brief comments of both the applicant and the second respondent which I have considered, to depart from the standard annual jetty licence renewed from year to year by the Department as was tendered by the Department in the proceedings.  The matter will be remitted to the Department with a direction from the Tribunal to this effect.

Orders

1. For these reasons, I make the following orders:

   1.The review is allowed.

   2.The decision under review is set aside and the matter remitted to the decision­maker with a direction to issue the applicant a jetty licence substantially in the form of the draft Jetty Licence Agreement tendered in the review.

   3.Liberty to apply is reserved for 28 days.

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, SENIOR MEMBER