MADDEN and SHIRE OF BROOME

[2007] WASAT 207

MADDEN and SHIRE OF BROOME [2007] WASAT 207

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 207
Act:	LOCAL GOVERNMENT ACT 1995 (WA)
Case No:	DR:106/2007	Heard:	14 AND 15 JUNE 2007
Coram:	JUSTICE M L BARKER (PRESIDENT)	Delivered:	15/06/07
No of pages:	12	Judgment Part:	1 of 1
Result:	Decision of Shire not to grant licence to applicant affirmed Review application dismissed
Category:	B
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Parties:	STEVE WILLIAM MADDEN SHIRE OF BROOME
Catchwords:	Local government Shire of Broome local law regulating trading in a public place Refusal of licence to operate camel tours on Cable Beach Maximum number of camels on Cable Beach
Legislation:	Marine and Harbours Act 1981 (WA) Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 (WA), cl 2.3.1 State Administrative Tribunal Act 2004 (WA), s 24
Case References:	Bird and Shire of Broome [2006] WASAT 338 Madden and Shire of Broome [2007] WASAT 117
Orders	1. The decision of the Shire of Broome of 15 March 2007 to refuse Mr Madden's application for a trading licence to conduct camel tours on Cable Beach for the period 1 April to 31 December 2007, is affirmed.,.2. The review application is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : MADDEN and SHIRE OF BROOME [2007] WASAT 207 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 14 AND 15 JUNE 2007 DELIVERED : Edited reasons delivered extemporaneously on 15 JUNE 2007 FILE NO/S : DR 106 of 2007 BETWEEN : STEVE WILLIAM MADDEN

Applicant

AND

SHIRE OF BROOME
Respondent

Catchwords:

Local government - Shire of Broome local law regulating trading in a public place - Refusal of licence to operate camel tours on Cable Beach - Maximum number of camels on Cable Beach

Legislation:

Marine and Harbours Act 1981 (WA)

Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 (WA), cl 2.3.1
State Administrative Tribunal Act 2004 (WA), s 24

(Page 2)

Result:

Decision of Shire not to grant licence to applicant affirmed

Review application dismissed

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Mr P Wittkuhn

Solicitors:

Applicant : Self-represented
Respondent : McLeods Barristers & Solicitors

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

Bird and Shire of Broome [2006] WASAT 338
Madden and Shire of Broome [2007] WASAT 117


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Prior to April 2007, the applicant, Mr Madden, held a licence from the Shire of Broome to operate camel tours on Cable Beach at Broome, Western Australia. He then applied, as did a number of others, for a further licence for the period 1 April 2007 to 31 December 2007. The Shire granted licences to three persons, but not Mr Madden, on the basis that only three operators, each with a maximum of 16 camels, should be permitted to conduct camel tours on Cable Beach. Mr Madden's application was refused.

2 Mr Madden commenced review proceedings in the Tribunal in respect of the decision of the Shire to refuse to grant him a licence. He also made an application for an interim injunction, which was dismissed by the Tribunal on 10 April 2007: Madden and Shire of Broome [2007] WASAT 117.

3 As a preliminary matter, the Tribunal considered whether the possible jurisdiction of the Broome Port Authority over some parts of Cable Beach affected the operation of the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003. The Tribunal accepted that no relevant part of Cable Beach falls under the jurisdiction of the Broome Port Authority. The Tribunal also considered that, if some relevant parts of the beach were under the Broome Port Authority's jurisdiction, the Marine and Harbours Act 1981 (WA) does not automatically prevent the Shire's local laws from applying in areas under the Broome Port Authority's jurisdiction.

4 The Tribunal found that the maximum number of camels presently permitted on Cable Beach, namely 48, is the optimal number in the present circumstances and given the competing uses for Cable Beach. The Tribunal noted that this number may be subject to change if the competing uses change.

5 The Tribunal also found that the Shire's division of this number into three licences, each for up to 16 camels, rather than four licences, each for up to 12 camels, was reasonable.

6 On 15 June 2007, the Tribunal affirmed the Shire's decision not to issue Mr Madden a licence to operate camel tours on Cable Beach for the period 1 April 2007 to 31 December 2007 and dismissed the review application.

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Facts

7 This proceeding involves Mr Steve Madden's application for review of the decision of the Council of the Shire of Broome (the Shire) on 15 March 2007 not to grant him a licence to operate a camel tour or tours on Cable Beach for the period 1 April 2007 to 31 December 2007.

8 I will refer briefly to the decision and other relevant decisions that were made by the Shire on 15 March 2007, but they are contained, amongst other places, in the bundle of documents filed by the Shire in these proceedings pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (Exhibit 9). The Tribunal has before it the minutes of the ordinary meeting of the Council that day and a report made to the Council concerning the issue of licences, as well as the two substantive decisions made by the Council that day.

9 The first in substance, without going into the detail of it, was to limit the number of camels to be permitted on Cable Beach to three licences of up to 16 camels each, 48 camels total, on the grounds of:

(1) the possible congestion of the beach;

(2) pollution of the beach by way of animal faeces;

(3) hazards to other users of the beach;

(4) the possible detraction from the aesthetic integrity of Cable Beach; and

(5) the potential safety issues for the passengers of camel tours where conflict between beach users occurs due to congestion and crowding.

10 Then the Council proceeded to decide what licences should be issued. There was initially a recommendation that two licences be issued to nominated applicants. In the event, the Council approved the grant of three. Again without going into the detail of those, the resolutions were that the applications of Broome Camel Safaris, Red Sun Camels and Ships of the Desert be approved for trading licences under clause 2.3.1(b) of the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 (2003 Local Law) for camel tours on Cable Beach, each with up to 16 camels, from 1 April 2007 to 31 December 2007, subject to a number of conditions.

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11 Those conditions were designed to ensure that the tours were appropriately conducted, having regard to the sorts of the issues that the Council had noted in its earlier resolution set out above.

12 Mr Madden's application for a licence was refused.

Substantive issue

13 The issue of substance in these proceedings is whether the Council's approach to its decision-making on 15 March 2007, the underlying policy that led to the decisions that it made to issue only three licences and then explicitly on that day to refuse the application made by Mr Madden for a licence, was based on what might be called, for present purposes, rational management considerations.

Statutory context

14 The Shire has the power, under the 2003 Local Law, to control or regulate trading on Cable Beach. It is a beach or public place to which that law applies and so a licence is required to permit trading such as operating a camel tour. That is not an issue in these proceedings. However, a jurisdictional issue arises, namely, whether or not the Shire's 2003 Local Law, which is otherwise validly made, has operation on relevant parts of Cable Beach.

15 This question of the operation of the 2003 Local Law arises because it is understood by all concerned that the Broome Port Authority (BPA) has jurisdiction in the vicinity. Exhibit 9 includes an aerial photo and map which shows, in the Cable Beach locality, reserve 36477, which reserve is vested in the Shire. Then north and south of that reserve, there is what is called UCL or unallocated crown land.

16 Exhibit 9 contains some blue line markings depicting the apparent area and boundaries of reserve 36477 and includes a westerly blue line boundary which, so far as that aerial photo is concerned, includes the sandy part of the beach at Cable Beach within the reserve. That line is depicted as running north and south on that westerly alignment from the reserve, so that the Cable Beach north area, where camel tours are operated, seems to be on the easterly side of that western boundary.

17 I mention the line because the evidence suggests that further west of that line, the sea bed is vested in the BPA and the terms of the Marine and Harbours Act 1981 (WA) (MH Act) apply. Mr Wittkuhn, for the Shire, quite properly has brought to the attention of the Tribunal something which may be or may become an issue, at least so far as other proceedings

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in the Federal Court of Australia, which resulted in a determination of native title being made in favour of the Rubibi Community, are concerned, and that is whether that line on the westerly alignment is appropriately located.

18 That line depicts exactly the location of the high water mark accepted in those Federal Court proceedings and for the purposes of that determination. It represents the position nominated by the State of Western Australia as the high water mark. I think for present purposes it is appropriate for the Tribunal to accept that line as depicting that mark. On that basis, no part of the Cable Beach reserve or the Cable Beach north area falls under the jurisdiction of the BPA.

19 In any event, having looked at the MH Act, it does not suggest, from what I can see of it, that land under the jurisdiction of the BPA falls outside the district of the Shire or that the Shire's local laws are incapable necessarily or automatically of applying in the same area. The BPA, or at least other people such as the relevant Minister under that Act, may make regulations that apply in respect of that area, but there is no evidence that there are any that apply and no question of a clash between competing regulations and local laws arises.

20 So this proceeding goes forward on the basis of the boundaries depicted in the map in Exhibit 9 and thus on the basis that the 2003 Local Law operates in respect of activities on Cable Beach that are the subject of the review application.

Maximum number of camels

21 We have heard much evidence about the extent to which various uses of the Cable Beach north area can be conducted in harmony. I think the ultimate issue is whether 48 camels on Cable Beach north, including in the areas whereby the camels gain access to and leave the beach, is the optimal number or whether 60 camels - an additional 12 under a fourth licence if granted to Mr Madden - is acceptable in beach management terms.

22 I turn to consider in brief the evidence on this ultimate issue. It is reasonably concise. First, the consultations of the Council clearly have led to it forming the view that 48 is the right number. Secondly, Mr Stephen Goode's report, made in 2005, which is at tab 3 of Exhibit 9, at page 23, also suggests 48 is the right number. Thirdly, historically - a point Mr Madden confirmed in his evidence - there have not been more

(Page 7)

than 48 camels on the beach in the whole period over which the camel tour industry has developed in Broome.

23 In all the circumstances, I am inclined to the view and to a finding that 48 is the accepted optimal number. No doubt market demand and the intricacies of conducting the camel tour business over the years have helped to settle that number, but it also reflects the local government's experience as to what the beach is capable of accommodating by way of camels, when having regard to the other competing uses on the beach.

24 To move to 60 camels would, I consider, involve accepting too many imponderables, such as what the impact on competing uses of the beach would be. At this stage, we simply do not know. Mr Madden says good camel management would solve any problems that would arise and would be capable of dealing with all the risks that have been identified. I tend to think that in this area, good decision-making requires a precautionary approach. That means in essence that one should not go too boldly forward where the answers are currently unknown, but the risks are identifiable and real.

Competing uses

25 The evidence lays out the competing uses on Cable Beach north. I do not consider there is any real disagreement about what they are and Mr Arthur Snook, a beach manager from the City of Stirling called by the Shire to give evidence, and Mr Madden himself, both agreed broadly about the nature of these competing uses, as well as the risk issues that arise.

26 The camel tour operators compete with individual recreational uses; that is, people - locals and visitors - simply coming down to the beach to enjoy the beach in one way or the other, including in the Cable Beach north area.

27 There are also four-wheel drives and other vehicles which gain access to that part of Cable Beach, especially, as all agree, at the sunset period.

28 Then there is the use of the beach, particularly that part of Cable Beach which is further north, by dogs and their exercisers. There is a part of the beach that is marked out for dog exercise, but many people take their dogs from the main Cable Beach area across the rocks and to the north.

(Page 8)

29 The risks or management issues arising from the competing uses are equally acknowledged by both parties. There is a question of congestion at certain times on the ramp at Cable Beach where camels enter and exit. At those times, people on foot and in vehicles are also entering or leaving the beach via the ramp.

30 There is also an issue, generally speaking, both at that point and elsewhere on the beach, when camel tours are operating, of safety, particularly in relation to people.

31 There is also a question of the reasonable ability of all persons to enjoy the activities that they have gone to the beach to enjoy.

32 Finally, there is the question of the appropriate environmental management of the beach, so that it remains clean and tidy; thus the issue earlier identified by the Council of the camel faeces.

33 These are all in my estimation real management issues. To have additional camels or camel tours to those that have already been permitted at the level of 48 camels, runs the risk of all the users I have identified not being able to enjoy to the fullest Cable Beach as they currently do. Obviously, if four-wheel drives or dogs were banned from the beach in favour of the expansion of camel tours, the position might be different, but it is not now for the Tribunal to express any preferences as to what the future might hold in that regard.

34 How the beach should be used in terms of all the competing uses is something properly for the Council to consider and to keep considering over the periods that lie ahead. For the present though, the reality is that the various uses I have mentioned are all considered legitimate and must be balanced, so that the wider public interest in the enjoyment of each of them on the beach is guaranteed.

35 As I have suggested, a precautionary approach suggests we cannot be certain what the effect of increasing the number of camels from 48 to 60 on the beach might ultimately be, but I think it would be, at this time, irresponsible for the Tribunal to reject the accumulated judgment of the Shire over time, the expert evidence of Mr Snook, and the experience of camel tour operators to now allow 60 camels, an increase of 12 over the current 48.

(Page 9)

Licensing arrangements

36 I turn to the question of three traders versus four traders and the circumstances in which Mr Madden was refused his licence on 15 March 2007 as a potential fourth operator. I am prepared to accept the Shire's judgment that the formula of three traders by 16 camels is a reasonable one. I do not know that there is any necessarily right formula in this regard. One can understand that if the Council at that time in March had been faced with four operators, who otherwise appeared to have equally satisfied all of the criteria concerning capacity, insurance, land tenure, planning approval and so on, that issue may have loomed larger than it did.

37 In the event, the reasoning of the Council and the reports before it indicate that the Council in fact considered whether you might have three by 16, four by 12 or five by nine operators or some other combination. In the event, there are good rational reasons why three traders by 16 might be considered a preferable way of allocating the maximum number of camels and I do not seek now to second-guess the judgment of the Shire on that point.

38 The reasoning, in essence, is that you have a more efficient, safer set of uses on Cable Beach north, which are less likely to fall into conflict, if that approach is taken. That, of course, is not to say that other approaches might not, on further assessment and judgment in the future, be thought appropriate to satisfy all of those same considerations.

39 Mr Goode's 2005 report at page 23 goes through a number of those reasons which support this application. The Council was entitled, as the Tribunal now is, to regard those aspects of Mr Goode's earlier work even though the Tribunal in Bird and Shire of Broome [2006] WASAT 338 found aspects of the Council's then licensing system not to be valid.

40 In any event, this is not a case where the earlier decision-making by the decision-maker to grant the licences to other people was so obviously wrong that I should disregard the fact that three licences have already been allocated. I thus find myself in the position now of accepting that there are three licences authorising operators to conduct tours involving up to 16 camels each. As I have found that the policy of allowing only 48 camels on the beach is preferable, it is difficult to contemplate any more camels and thus to contemplate the grant of a licence to a fourth operator to run an additional 12 camels.

(Page 10)

41 The question whether or not the full complement of 48 camels is currently out on the beach and working has reasonably been raised by Mr Madden. However, the evidence suggests that sooner rather than later, depending on market demand, there will be 16 working camels in each operator's team. We have heard that only one licensee presently operates with a full 16 camels. However, we have also heard that the position is likely to develop soon by which the potential for 48 camels to be on the beach at the one time will be realised. In the end, I do not think it can be said by the Tribunal with any degree of confidence that notwithstanding the existing three licences for 16 camels each, the operators are unlikely to get anywhere near maximum camel usage, such that a fourth licence could be granted to Mr Madden without fear that the 48 camel limit would be exceeded.

42 There are aspects about the application and its refusal in March 2007 that Mr Madden has brought to the attention of the Tribunal, which again I think he has some reasonable sense of grievance about. He feels that he was dealt with differently from one of the other operators, who was granted the third licence on that occasion. The assessment of Mr Madden's application was such that he was considered by the Shire not to have satisfied all of the criteria that the applicants knew they had to meet because he did not have a lease over land in an appropriately zoned area and did not have planning consent for the stabling of the camels to make the whole tour possible.

43 These things I think he acknowledges, but Mr Madden says there was another operator in much the same position, because that other operator was on land where the lease had expired and thus, in a practical sense, that person was no further advanced than he was. Be that as it may, one can see perhaps in all circumstances that the Council considered that at least that other person was in an appropriately zoned area and the likelihood was that the leasing position would be worked out. At that stage, Mr Madden's application to get a lease in appropriately zoned areas was still in the pipeline.

44 As it turns out, there is no doubt that Mr Madden has in the meantime secured the appropriate lease in an appropriately zoned area and from the evidence I have heard, there could not be, on the face of it, any reasonable basis for him to be refused the planning approval. It seems from communications he has had with an officer of the Shire that planning approval is in the pipeline, once he has lodged appropriately scaled plans to satisfy the planning application rules.

(Page 11)

45 In my view it was not unreasonable for the Council to discriminate between the applications in the way it did at the time. As the Council did at that time, I now hold the view that at the present time the optimal number of camels on Cable Beach is 48. This makes it difficult then to issue a fourth licence. It is in that sense unfortunate that the clock, from Mr Madden's point of view, cannot be wound back to 15 March 2007, although it may have made no difference.

The future

46 That then leads me to make some comments about the future. The licences which have been granted in March are all for the period 1 April 2007 to 31 December 2007. They will of course expire in due course and all manner of people might be interested then in applying for new licences. The history of the camel licences that the Tribunal has seen in the two matters that have come before it in recent times, late last year and now, shows that the Shire quite commendably is trying rationally to deal with the question of licences: how many there can be and the basis upon which they should be issued. One suspects if there are business opportunities, a range of people will still be keen to take them up and the Council will be required to revisit these issues again in the future.

47 I say nothing more about that now. It is not the role of the Tribunal on this occasion to try and provide any comment or guidance about those future matters. They are matters properly for the local government from time to time to work through, but it will at least provide people such as Mr Madden, who are interested in obtaining licences in the future, the opportunity to make fresh applications and for them then to be considered. It will also provide an opportunity for the Council when it revisits the issues to reflect on the appropriateness of the broad policy approach it took in March 2007 and the question of whether 48 camels remains the right limit and three tours the right number.

48 As I said before, there are a number of competing beach uses, which suggest there needs to be a limit. A precautionary decision-maker approach supports keeping the numbers carefully under control. In the future, if the position in respect of other competing uses were to change, of course that might also affect the approach the Council takes to this issue.

49 For argument's sake, if the view were ever adopted that Cable Beach north should effectively become a camel beach, rather than a four-wheel drive beach and other sorts of beach, then it may well be open for the Council to consider increasing the number of camels on the beach, but I

(Page 12)

do not mean those comments to be taken to support going in that direction, because how the beach should be used is plainly a matter for the local community, through the local government, to determine.

50 For the present though, the Tribunal considers the 48 camel limit appropriate and, in the light of the three licences for up to 16 camels each which have been already been issued, the Tribunal considers the rejection of Mr Madden's application by the Council to have been the correct and preferable decision. Though a very difficult decision to make, the Tribunal considers this remains the correct and preferable decision today.

51 Let me finally say that decisions like the one that the Council had to make, and the Tribunal has had to make on review, are very difficult decisions to make, not the least because a previous operator stands to lose the opportunity of maintaining and developing a livelihood. No one likes to make these sorts of decisions, but the proper management of an important public resource such as Cable Beach sometimes requires these sorts of hard decisions to be taken. When they are, they are necessarily taken in the community's overall interests.

Findings and orders

52 For these reasons then, the Tribunal on 15 June 2007 made the following orders:

1. The decision of the Shire of Broome of 15 March 2007 to refuse Mr Madden's application for a trading licence to conduct camel tours on Cable Beach for the period 1 April to 31 December 2007, is affirmed.

2. The review application is dismissed.

I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT