Minchin And Ors and Town Of Claremont
[2008] WASAT 78
•10 APRIL 2008
MINCHIN AND ORS and TOWN OF CLAREMONT [2008] WASAT 78
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 78 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:240/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 10/04/08 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Finding that Tribunal has no jurisdiction to review local government budget process but has jurisdiction to consider whether correct budget item applied to grant of licence | ||
| B | |||
| PDF Version |
| Parties: | SUZANNE MINCHIN AND ORS TOWN OF CLAREMONT |
Catchwords: | Local Government Act Licence to trade in public place Tribunal's jurisdiction Whether jurisdiction to review decision by local government to adopt a budget item Budget item identified by local government as payable for licence Whether Tribunal has jurisdiction to review decision to demand wrong fee before issuing licence |
Legislation: | Interpretation Act 1984 (WA), s 45A Local Government Act 1995 (WA), s 6, s 9, Pt 6 Div 5 Subdivision 2 |
Case References: | Bell Bros Pty Ltd v Shire of SerpentineJarrahdale (1969) 121 CLR 137 |
Orders | 1. In relation to the questions as to jurisdiction raised by the parties, the Tribunal finds:,(i) it would be open to the Tribunal to review a decision by the respondent to require an applicant to pay an erroneous licence fee before it would give consideration to the grant of a licence under the TIPP local law where a correct licence fee was tendered. That requirement would be tantamount to a refusal to exercise the discretion under the TIPP local law.,(ii) the Tribunal does not have jurisdiction to review the decision by the local government to adopt that portion of the budget concerning fees and charges for the purposes of the TIPP local law. It has no jurisdiction to review whether the fees charged exceeded the reasonable costs recovery as required by s 6.16(1) or were otherwise determined in accordance with the requirements of s 6.17(1)(a)(2)(c) of the LG Act, or in accordance with the requirements of s 45A of the Interpretation Act 1984 (WA). ,(iii) The fact that that licence was subsequently acted upon to its full extent would not deprive the Tribunal of jurisdiction to review a decision of the character referred to in (i) above. ,2. The matter is adjourned for directions on a date to be fixed in order to consider the further conduct of the matter. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : MINCHIN AND ORS and TOWN OF CLAREMONT [2008] WASAT 78 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 10 APRIL 2008 FILE NO/S : DR 240 of 2007 BETWEEN : SUZANNE MINCHIN AND ORS
- Applicant
AND
TOWN OF CLAREMONT
Respondent
Catchwords:
Local Government Act Licence to trade in public place Tribunal's jurisdiction Whether jurisdiction to review decision by local government to adopt a budget item Budget item identified by local government as payable for licence Whether Tribunal has jurisdiction to review decision to demand wrong fee before issuing licence
Legislation:
Interpretation Act 1984 (WA), s 45A
Local Government Act 1995 (WA), s 6, s 9, Pt 6 Div 5 Subdivision 2
(Page 2)
Result:
Finding that Tribunal has no jurisdiction to review local government budget process but has jurisdiction to consider whether correct budget item applied to grant of licence
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Kott Gunning
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Bell Bros Pty Ltd v Shire of SerpentineJarrahdale (1969) 121 CLR 137
(Page 3)
Summary of Tribunal's decision
1 The Tribunal was called upon to determine several issues going to its jurisdiction to entertain these proceedings. The applicants had each had issued to them a licence to trade in a public place under a Town of Claremont local law. The local law required that an application for a licence be accompanied by the fee which had been adopted by the Town as part of its budget processes.
2 The applicants argued that the Town had demanded fees based upon the wrong item under its budget. They had tendered what they said was the correct fee. The Tribunal concluded that it had jurisdiction to review the question of whether the correct fee had been demanded by the Town.
3 The Tribunal rejected a further contention by the applicants that, if the fee item demanded by the Town did in fact apply to the applicants' licences, the Tribunal had jurisdiction to review the process by which the Town had adopted its budget. It concluded that the adoption of budget items by a local government is not susceptible to review by the Tribunal.
Introduction
4 The parties to this application have identified a number of questions that they say arise for determination in the proceedings. A number of those questions are essentially concerned with the broader question of whether the Tribunal has jurisdiction to review the requirement imposed upon each of the applicants to pay a specified fee for the issue to them of licences to trade in a public place. The parties agreed that the questions concerned with that issue should be determined on the papers as preliminary issues. These reasons address those questions.
Background
5 There are 121 applicants in these proceedings. Each of them applied to the Town of Claremont, and was granted, a licence to trade in a public place. The licences were issued under the Town of Claremont Local Law Relating to Trading in Public Places (TIPP local law), being a local law made by the respondent pursuant to its powers under the Local Government Act 1995 (WA) (LG Act). The applicants' licences were for stalls at a craft fair to be operated over three days from 27 April to 29 April 2007 at the Robinson and Silver Jubilee pavilions of the Claremont Showgrounds.
(Page 4)
6 Prior to the issue of the licences, there had been a number of exchanges between the Town and Ms Suzanne Minchin, one of the organisers of the craft fair. The Claremont Showgrounds is owned by the Royal Agricultural Society (RAS). In January 2007, the Town gave notice to the RAS that the Town proposed to charge stallholders licence fees under the TIPP local law (TIPP licence fees). Ms Minchin wrote to the Town in March 2007 seeking exemption from the requirement to pay TIPP licence fees under cl 15(2) of the TIPP local law for the craft fair to be held from 27 to 29 April 2007. She also wrote at that time to councillors of the Town seeking support for the exemption. By letter dated 10 April 2007, the CEO of the Town wrote to Ms Minchin declining to grant exemptions. On 13 April 2007, he again wrote to Ms Minchin stating that the TIPP licence fees to be paid were those set out under the "Health" heading in the Town's adopted 2006 2007 budget.
7 Ms Minchin maintained that the fees identified in the Town's budget under "Health" did not properly apply to the TIPP local law. On 23 April 2007, the CEO replied confirming that the fees as previously specified were payable, and that the penalty for a stallholder trading without a licence is a fine of up to $2,500 with a daily penalty of $50. That day, Ms Minchin attended the Town's offices and lodged 204 TIPP licence applications, 200 of which sought trading for three days from 27 to 29 April 2007. Two applications were for two days, and one application for one day. On 26 April 2007, Ms Minchin attended the Town's offices and paid a total of $35,405 in TIPP licence fees. At the same time she delivered a letter addressed to the CEO protesting at what she asserted was the Town's incorrect charge of $35,405 for the fees. The licences were issued that day.
TIPP local law
8 Clause 6 of the local law prohibits a person undertaking activities as a stallholder unless that person holds a current licence. Clause 7 requires that every application must be in the form provided in the Schedule to the local law, and must be accompanied by, amongst other things, "the applicant/renewal fee as determined by the local government pursuant to cl 16".
9 Clause 8 provides:
"(1) The local government shall issue to every licensee a licence certificate in the form set out in Schedule 2, for which the licensee shall pay the relevant sum determined by the local government pursuant to cl 16.
(Page 5)
- (2) No licence is valid until the fees and charges have been paid …"
10 Clause 16 provides that:
"The fees and charges in relation to this local law will be set in accordance with Part 6, Division 5, and Subdivision 2 of the Local Government Act 1995."
11 Clause 19 deals with "objection and appeal rights". It provides:
"When the local government makes a decision as to whether it will:
(a) grant a personal licence under this local law; or
(b) renew, vary or cancel a licence that a person has under this local law,
the provisions of Division 1 of Part 9 of the Act and regulations 33 and 34 of the Local Government (Functions and General) Regulations 1996 shall apply to that decision."
12 The applicants contend that the decision reviewable by the Tribunal is the decision to grant a licence and issue a licence certificate subject to payment of the relevant sum as determined in accordance with Pt 6, Div 5, Subdivision 2 of the LG Act.
13 Division 5 of Pt 6 of the LG Act is concerned with financing local government activities.
14 Section 6.16 of the LG Act empowers a local government to impose and recover a fee or charge for any goods or service it provides. The section specifies that a fee or charge may be imposed for, amongst other things, receiving an application for approval, granting an approval, making an inspection and issuing a licence, permit, authorisation or certificate. Fees and charges are to be imposed when adopting the annual budget but may be imposed or amended during the course of a financial year s 6.16(3).
15 Section 6.17 provides that fees or charges relating to the approval or issue of licences are to be set by reference to the cost to the local government or providing the service or goods.
(Page 6)
16 The requirement to adopt an annual budget is found in Pt 6, Div 2 of the LG Act. That division requires the preparation of adoption of an annual budget which incorporates all of the income and expenditure expected by the local government in the next financial year, including the fees and charges proposed to be imposed by the local government (s 6.2(4)(c)).
Respondent's annual budget 2006 2007
17 On 4 July 2006, the respondent's council resolved to adopt various fees and charges and a consolidated budget for the year ending 30 June 2007. The motion specifically included adoption of the fees and charges itemised in a section of the budget titled "Fees and Charges". Included amongst those were the fees and charges set out at pages 18 and 19 of the budget document. Under the heading "Trading in Public Places" various fees were specified in relation to "display of goods not on private property", "display of goods on private property" and "impoundment fees".
18 Page 19 of the document commences with the heading "Health". Beneath that heading appear the words:
"Health related fees are charged in accordance with the Health Act. The following fees are council imposed fees and are charged in addition to this Act."
19 Beneath those words are set out a number of fees under the heading "Stallholders Licences". Following those fees are fees related to "alfresco licences" and "administration fees".
20 The licence fees required by the Town in relation to the applicant's licences were those fees identified under the heading "Stallholders Licences" at page 19 of the budget.
The issues for determination
21 At the early directions hearings in relation to the application, the respondent indicated that it wished to argue that the Tribunal lacked jurisdiction to review the requirement to pay the prescribed fee for the licences. The parties were directed to file a statement of the preliminary issue for determination, and various other documents to enable the preliminary issue to be determined. However, the parties were unable to agree as to the formulation of the preliminary issue, and instead each identified what they considered to be the issues which fell for
(Page 7)
- determination. As previously observed, a number of those issues went to the question of jurisdiction.
22 The applicants' formulation of the issues as to jurisdiction was as follows:
"A. Whether the Tribunal has jurisdiction to review the Respondent's decision to grant a licence to trade in a public place, subject to the payment of a fee imposed for the granting of the approval and issue of the licence, where objection is made to the determination of the fee on the grounds that such fee
(a) was wrongly determined by reference to a fee applicable to a licence relating to matters of "Health", as set out on page 19 of the 2006/2007 Budget of the Respondent;
(b) exceeded the reasonable cost recovery for service contrary to Section 6.16(1) of the Local Government Act 1995 (WA);
(c) was not determined in accordance with the matters specified in section 6.17(1)(a) to (c) of the Local Government Act 1995 (WA);
(d) was not a fee which comprised recovery of expenditure that is relevant to the scheme or system under which the licence was issued, within the terms of section 45A of the Interpretation Act 1984 (WA).
B. Whether the Tribunal has jurisdiction to review the Respondent's decision to grant a licence to trade in a public place subject to the payment of a fee imposed for the granting of the approval and issue of the licence in circumstances where the fees assessed by the Council Officers have been paid under protest, a licence issued and the licence acted upon to the full extent of the licence."
23 The respondent formulated the jurisdictional issues as follows:
(Page 8)
- "1.1 Whether there is any right of review of the fee which must accompany an application for a licence made pursuant to clause 7.1(1) of the Town of Claremont Local Law Relating to Trading in Public Places ("Local Law").
1.2 Whether there is any right of review of an application for a licence under the Local Law when the licence applied for has been issued allowing trading on precisely the terms sought in the application.
1.3 Whether the Tribunal has jurisdiction to review fees and charges payable on the issue of a licence under the Local Law when those fees and charges have been paid, a licence issued and the licence acted upon to the full extent of the licence.
1.4 Whether the Tribunal has jurisdiction to review the level of fees and charges set by a local government under Part 6 of the Local Government Act 1995 ("Act")"
24 There is obvious overlap between the parties' formulations of the issues. In my view, those issues can be most conveniently addressed by dealing with the applicants' issue A with the respondent's issues 1.1, 1.2 and 1.4, and then dealing with the applicant's issue B with the respondent's issue 1.3.
Issues A, 1.1, 1.2 and 1.4
25 Clause 19 of the TIPP local law prescribes that the provisions of Div 1 of Pt 9 of the LG Act apply to a decision, under the local law, as to whether the local government will grant a person a licence. Even absent that provision, s 9.1(a) of the LG Act would have the effect of applying Div 1 Pt 9 of the Act to a decision under the TIPP local law "as to whether (the local government) will grant a person an authorisation under" TIPP local law. By virtue of s 9.2, a prospective licensee whose licence is the subject of the local government's decision is an "affected person" for the purposes of the division. By s 9.7, an affected person is given the right to apply to the Tribunal for a review of the decision.
26 It is clear, therefore, that if, for example, one of the applicants applied for, but was refused, a licence under the TIPP local law, the Tribunal would have jurisdiction to review that decision.
(Page 9)
27 The starting point for analysis is to identify the "decision" which is the subject of the application. The standard form of application to this Tribunal for review under s 9.7(1) of the LG Act requires an applicant to identify the person who made the reviewable decision and the date on which it was made, and to attach a copy of the decision. The applicant in this case identified the decision as having been made by the CEO of the Town of Claremont on 26 April 2007. The "copy of the decision" attached was (in respect of each applicant) a copy of the licence issued to that applicant. The grounds upon which the review was sought were said to be that the licence fees charged and collected on 26 April 2007 were excessive and contrary to Subdivision 2, Div 5 of Pt 6 of the LG Act.
28 In the applicants' initial submissions in relation to its preliminary issues, the decision the subject of the review was variously described as:
• the decision made by the respondent to apply the TIPP local law (submissions par 1.5);
• a reviewable decision made by the respondent when its officers charged the applicants licence fees under the "Health" section of the respondent's budget (submissions par 1.6);
• a decision made when the respondent was asked to review the decision to apply the higher fees to the applicants and decided not to review that decision (submissions par 1.7);
• a decision to grant a licence and issue a licence certificate subject to payment of the relevant sum, as determined in accordance with Pt 6, Div 5, Subdivision 2 of the LG Act (applicants' Issues, Facts and Contentions par 2.6)
• a decision made when the respondent determined the relevant sum (determined pursuant to cl 6 of the TIPP local law) to be paid in respect of a licence which it decided to grant (applicants' Issues, Facts and Contentions par 2.8); and
• a decision made by the respondent when it determined and received a fee for the licence and issued a licence certificate (applicants' Issues, Facts and Contentions par 2.11).
(Page 10)
29 The first of those formulations of the "decision" seems misconceived. The application by the applicants was an application for a licence under the TIPP local law. I do not understand there to be any issue that a licence is required by that local law for the stalls which the applicants proposed to conduct. The application of the TIPP local law was not a decision taken by the respondent, but a necessary consequence of having received an application under that local law.
30 The balance of the formulations of the "decision" all essentially describe the respondent's requirement that the particular fee, which it identified in the budget, had to be paid before the licence would issue.
31 A complicating factor in this case is that the particular fee charged for the licences was found, within the budget, under a section headed "Health". I will return to the significance of that complicating factor below. For the sake of analysis, however, it is useful to consider the position as if the adopted budget clearly identified the fees and charges to be levied in respect to licences issued under the TIPP local law. In my view, if that were the case, the requirement that that charge be paid before a licence will issue is not a "decision" for the purposes of cl 19 of the TIPP local law, or s 9.1(1) of the LG Act. That is because cl 7 of the TIPP local law requires the fee to accompany an application, and cl 8 requires the licensee to pay the sum determined and that no licence is valid until the fees and charges have been paid. The decisionmaker is thus precluded from issuing a licence unless the fee that has been previously determined is paid. There is no decision to be made as to whether or not to require payment, because the local law makes payment a prerequisite to the grant of a licence (subject only to the exemption provision found in cl 15, which is not relevant for present purposes).
32 Apart from the issue of the location of the budget item under the heading "Health", the applicants' primary contention appears to be that the fee adopted in the budget was not set in accordance with the requirements of Pt 6 Div 5 Subdivision 2 of the LG Act. In particular, the applicants contend that the fee exceeded the reasonable cost recovery for service contrary to s 6.1(1) of the LG Act, was not determined in accordance with the matters specified in s 6.17(1)(a) to (c), and was not a fee which comprised recovery of expenditure relevant to the scheme or system under which the licence was issued, as required by s 45A of the Interpretation Act 1984 (WA). It is thus the decision to adopt that portion of the budget about which complaint is made.
(Page 11)
33 There is no provision in the LG Act which enables a person to seek review before this Tribunal of decisions made in the process of adoption of a budget, except for reviews of questions of general interest as to whether a rate or service charge was imposed in accordance with the LG Act (s 6.82). The right of review under s 6.82 has no application to fees and charges imposed under Pt 6 Div 5 Subdivision 2 (which are not by definition "service charges" as that expression is used in s 6.82). The applicants (at par 2.8 of their Statement of Issues, Facts and Contentions) accept that the imposition of fees when adopting an annual budget does not "by itself comprise a decision which affects any person". They contend, however, that "the setting of a fee as part of the budgetary process is inextricably interwoven with the application of a fee when granting a licence" (applicants' Issues, Facts and Contentions par 2.19). It is contended that the whole of that process must comply with the provisions of Pt 6 of the LG Act. I do not accept that submission. The decision to adopt the budget is a separate decision, taken in the context of an overall budgetary process. The decision as to whether or not to issue a licence under the TIPP local law is a separate decision having regard to the requirements and considerations identified in the TIPP local law. In the absence of a statutory provision conferring upon the Tribunal the jurisdiction to review decisions taken by local governments in adopting their annual budgets, the Tribunal lacks the jurisdictions to review those decisions.
34 The applicants argue that this case is analogous to the decision of the High Court in Bell Bros Pty Ltd v Shire of SerpentineJarrahdale (1969) 121 CLR 137. That case concerned an action by a licensee for recovery of fees charged by the Shire of SerpentineJarrahdale pursuant to a bylaw subsequently found to be invalid. The issue for determination was whether or not the payments by Bell Bros could be said to have been involuntary payments such as to entitle it to recovery in an action for money had and received. The conclusion was that the payments were to be treated as involuntary.
35 In my view, the decision in Bell Bros does not assist the applicants in this case. Whether or not the payment by the applicants of the licence fees was made voluntarily or under protest does not assist in determining whether the Tribunal has jurisdiction to review the imposition of the fee. The Tribunal's jurisdiction is entirely statutory. Whether there might be an action available to the applicants in a court of competent jurisdiction for recovery of the fees paid is not a question which informs the existence or otherwise of jurisdiction of this Tribunal.
(Page 12)
Significance of the heading "Health"
36 The foregoing discussion proceeds on the assumption that the fees adopted in the budget are those fees applicable to licences under the TIPP local law. The applicants contend, however, that the charge required by the respondent was wrongly determined by reference to a fee applicable to a licence relating to health. They contend that the correct fee is that shown in the budget as "display of goods on private property" under the heading "Trading in Public Places".
37 Again, for the sake of analysis of the extent of the Tribunal's jurisdiction, it is helpful to assume particular facts. In essence, the applicants' contentions are based on the proposition that the adopted budget prescribed a fee (which I will call feeA) for licence of the type sought by the applicants, and a different fee (which I will call fee B) for different licences to do with matters concerning health. The agreed facts show that the applicants tendered fee A, but were told that they would have to pay fee B in order to obtain their licences. If it were the case that the respondent determined to grant the licence upon payment of a fee it was not entitled to demand under the TIPP local law, then in my view a right of review to the Tribunal would exist. That is because upon payment of the correct fee, an applicant is entitled to have its application considered having regard to the considerations identified in the TIPP local law. A refusal to exercise the appropriate discretion to grant or refuse a licence where the preconditions for an entitlement to the exercise of that discretion are met is, in effect a refusal to grant a licence, having regard to the proper considerations, and amounts to a decision for the purposes of cl 19 of the TIPP local law and s 9.1 of the LG Act.
Conclusion as to issues A, 1.1, 1.2 and 1.4
38 For the foregoing reasons, my conclusion in relation to the questions raised by these issues are as follows:
(i) (Issue A(a)) it would be open to the Tribunal to review a decision by the respondent to require an applicant to pay an erroneous licence fee before it would give consideration to the grant of a licence under the TIPP local law where a correct licence fee was tendered. That requirement would be tantamount to a refusal to exercise the discretion under the TIPP local law.
(ii) (Issues A(b), (c) and (d) and 1.4) the Tribunal does not have jurisdiction to review the decision by the local government to adopt that portion of the budget concerning fees and charges for the
- purposes of the TIPP local law. It has no jurisdiction to review whether the fees charged exceeded the reasonable costs recovery as required by s 6.16(1) or were otherwise determined in accordance with the requirements of s 6.17(1)(a)(2)(c) of the LG Act, or in accordance with the requirements of s 45A of the Interpretation Act 1984 (WA).
- (iii) (Issue 1.2) the conclusion I have reached that the Tribunal has jurisdiction to review a decision based on a requirement to pay an incorrect fee contemplates a situation where the application for a licence is accompanied by tender of the correct fee. If that is what has occurred in this case, then the refusal to issue the licence on payment of that fee is susceptible to review. It is thus not a situation where "the licence applied for has been issued allowing trading on precisely the terms sought in the application" because the effective decision is to refuse to consider the application unless an unjustified requirement is met.
Issues B and 1.3
39 These issues concern the question of whether or not it is open to the Tribunal to review a decision to grant a licence where the licence has been issued and acted upon to its full extent prior to the institution of the application for review. The facts giving rise to these applications are quite unusual, and it is difficult to imagine other circumstances which might give rise to this issue. Given the conclusions I have reached in relation to the other issues, it is appropriate that my comments on these issues be limited to the precise circumstances of this case.
40 In this case, what I have found to be susceptible to review is a decision to require the payment of an incorrect fee before a licence would be issued. As I have indicated, that requirement, if one were made, would be tantamount to a refusal to grant a licence upon tender of the correct fee. In my view, that decision would be reviewable notwithstanding that, under threat of significant penalties, the incorrect fee demanded was paid in order to secure a licence. The fact that that licence was subsequently acted upon to its full extent would not, in my view, deprive the applicants of a right to have the erroneous decision reviewed. The scope of the Tribunal's powers under s 29(3) of the State Administrative Tribunal Act 2004 (WA) is such that an effective remedy could be granted to the applicants in
(Page 14)
- the event that they had been improperly charged a fee in excess of the fee properly identified in the adopted budget.
The future of the proceedings
41 Whether or not the respondent has made a decision susceptible to review by the Tribunal depends upon whether or not it is required payment of the correct charge under the Town's adopted budget. That turns upon the question as to whether the fees and charges shown for "stallholders licences" at page 19 of the budget are the correct fee payable for licences under the TIPP local law. That question was the subject of correspondence between Ms Minchin and the Town in April 2007. The explanation given by Mr Kyron, the Chief Executive Officer, in a letter dated 13 April 2007 as to the Town's approach was as follows:
"The fees that are charged for Trading in Public Places as you correctly pointed out have the heading of 'Health' but this is presently being rectified and does not negate the requirement for those fees to be paid. The fees stated on page 18 titled Trading in Public Places actually relate to the Town of Claremont's "Activities on Thoroughfares and Public Places Local Law" and not the trading in public places local law this [sic] too has been rectified for the 2007/2008 budget year."
42 That assertion is a question of fact. Evidence will be required to determine whether or not the position asserted by the Chief Executive Officer is correct. I note the description of the stallholders licences, fees and charges as charges "in addition to" charges in accordance with the Health Act 1911 (WA). Whether that necessarily requires that those charges be concerned, as the applicants contend, with stalls selling or displaying foodstuffs seems to be doubtful. The parties have not, however, had the opportunity to present evidence, or make submissions, on that factual issue. I will, therefore, hear the parties as to the appropriate method of disposition of the remaining issues in the proceedings.
Orders
1. In relation to the questions as to jurisdiction raised by the parties, the Tribunal finds:
(i) it would be open to the Tribunal to review a decision by the respondent to require an applicant to pay an erroneous licence fee before it would give consideration to the grant of
- a licence under the TIPP local law where a correct licence fee was tendered. That requirement would be tantamount to a refusal to exercise the discretion under the TIPP local law.
- (ii) the Tribunal does not have jurisdiction to review the decision by the local government to adopt that portion of the budget concerning fees and charges for the purposes of the TIPP local law. It has no jurisdiction to review whether the fees charged exceeded the reasonable costs recovery as required by s 6.16(1) or were otherwise determined in accordance with the requirements of s 6.17(1)(a)(2)(c) of the LG Act, or in accordance with the requirements of s 45A of the Interpretation Act 1984 (WA).
(iii) The fact that that licence was subsequently acted upon to its full extent would not deprive the Tribunal of jurisdiction to review a decision of the character referred to in (i) above.
- 2. The matter is adjourned for directions on a date to be fixed in order to consider the further conduct of the matter.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
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