PAYNE and SHIRE OF ESPERANCE - [2018] WASAT 47

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995
CITATION:   PAYNE and SHIRE OF ESPERANCE [2018] WASAT 47
MEMBER:   MS D QUINLAN (MEMBER)
HEARD:   31 MAY & 1 JUNE 2018
DELIVERED          :   19 JUNE 2018
FILE NO/S:   CC 2666 of 2017
BETWEEN:   SHELLEY PAYNE
Applicant
AND
SHIRE OF ESPERANCE
Respondent

Catchwords:

Local Government Act - Local Law - Trading in Public Places Policy - Trader's permit - Food van - Safety issues - Traffic safety - Pedestrian safety - Coastal hazard - Beach safety

Legislation:

Local Government Act 1995 (WA), s 9.7(1)(a)
State Administrative Tribunal Act 2004 (WA), s 27

Result:

Review not allowed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr A Roberts

Solicitors:

Applicant	:	N/A
Respondent	:	McLeods

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

Nil

REASONS FOR THE DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal pursuant to s 9.7(1)(a) of the Local Government Act 1995 (WA) (LG Act) for a review of the decision of the Shire of Esperance (respondent, or Shire) to refuse to grant a trader's permit to Ms Shelley Payne (applicant).

Proposed trader's permit

The applicant seeks a trader's permit in order to operate a food van in the West Beach carpark, Esperance (proposed trader's permit). There are two West Beach carparks, the main one, or relevant one for these proceedings, is located opposite the intersection of Johns Street and Twilight Beach Road (West Beach carpark). The West Beach carpark is located 2 kilometres (straight line) and 3 kilometres by car from the Esperance town centre. The West Beach carpark consists of 41 car parking bays and a newly constructed stairway with a 60 metre descent down to the beach. The proposed trader's permit would involve the food van occupying one car parking bay adjacent to a newly constructed pathway from the boardwalk to Twilight Beach Road and serving customers from an opening on the pathway side of the van at the end of the van which is furthest away from the road. On occasion, as required, the car which tows the food van would occupy another car parking bay.

Legislation

A particularly relevant consideration for the Tribunal in determining these proceedings, is the recent development of the Trading in Public Places Policy (TPP Policy). The TPP Policy has been prepared by the Shire under the provisions of the Activities in Thoroughfares and Public Places and Trading Local Law 2016 (Local Law) which is a local law as provided for under the LG Act.
In the absence of any considerations in these proceedings under cl 6.5(2) of the Local Law, cl 6.5(1) provides that in determining the application the Tribunal is to have due regard to the following:
(a)any relevant policies of the local government;
(b)the desirability of the proposed activity;
(c)the location of the proposed activity;
(d)the principles set out in the Competition Principles Agreement; and
(e)such other matters as the local government may consider to be relevant in the circumstances of the case.
Clause 6.6 of the Local Law provides that, if a permit is to be issued, that conditions can be imposed under cl 6.6 or through a policy under cl 7.4 of the Local Law.
Pursuant to s 27 of the State Administrative Tribunal Act2004 (WA) review proceedings in the Tribunal are by way of a hearing de novo, or hearing afresh. They are not appeals of the decision of the Shire. These proceedings do not require that an error must be shown in the process undertaken by the Shire or that there is an error in the Shire's decision. It is, in essence, another opportunity for the applicant to convince or persuade a decisionmaker to make a decision favourable to their application. The Tribunal looks at the matter afresh, standing in the shoes of the Shire, and is not restricted to the material that was before the Shire at the first instance. The purpose of the review is to produce the correct and preferable decision at the time of the review, taking into account the legislative and policy framework that is in existence at the time of the review.
The Tribunal notes that the applicant is an elected council member of the Shire, and quite properly under her obligations pursuant to the LG Act, the applicant has not participated in the Council's decisionmaking regarding her application nor the development of the TPP Policy, bar one exception which is detailed later in these reasons.

Issue to be determined

The issue to be determined in these proceedings is whether, in the exercise of the Tribunal's discretion under cl 6.5(1) of the Local Law, it is appropriate to approve the proposed trader's permit, in particular, having due regard to the TPP Policy including giving consideration as to whether the TPP Policy should be departed from in this instance.

Site view

During the course of the hearing held in Esperance, the Tribunal had the opportunity to conduct a site view of the location for the proposed trader's permit at the West Beach carpark. The Tribunal was able to observe the carpark, the proposed site for the food van and the new stairway to the beach which is not visible from Twilight Beach Road. The Tribunal was able to observe the 1.6 metre kerbed area which is the only barrier, or existing 'clear zone', which exists between the traffic on Twilight Beach Road and the carpark area where the food van is proposed to be located under the proposed trader's permit.

Background facts

On 7 September 2017 the applicant lodged her application for a trader's permit with the Shire for approval. The proposed trader's permit proposed that the food van (measuring 4 metres by 1.6 metres) would operate Monday to Sunday from 6 am and would sell food, drinks and surfwax.
Following consultation with Shire officers, who initially supported the concept of a proposed trader's permit at West Beach, the applicant amended her application for the proposed site of the food van to be located adjacent to the intended new footpath (which is now constructed). The amended application constitutes the proposed trader's permit regarding which the Tribunal has jurisdiction to determine.
On 26 September 2017 Council considered a suite of four draft policies that had been prepared to guide decisionmaking under the Local Law. Included in those four draft policies was a draft policy entitled 'Traders and Itinerant Vendors' which is the earlier draft version of the policy later renamed the TPP Policy (draft TPP Policy). The draft TPP Policy included West Beach as a possible location for a trader's permit. Whether the TPP Policy has been properly developed is in dispute between the parties in these proceedings. The development of the TPP Policy is detailed further later in these reasons.
The proposed trader's permit was also considered by the Council on 26 September 2017, with a recommendation from Messrs Paul Clifton and Terrence Sargent for approval subject to conditions. However, the Council determined that the proposed trader's permit should be advertised to neighbouring properties within a 200 metre radius of West Beach and Council noted that, subject to there being no substantiated objections, Council would approve the proposed trader's permit.
The advertising of the proposed trader's permit involved a letter being provided to 73 residents within 200 metres of West Beach. Twelve submissions were received (one was from outside of the 200 metre area and discounted) which opposed the proposed trader's permit.
Following a site inspection by the elected members of the Council, on 28 November 2017, the Council again considered the proposed trader's permit. Based on the community submissions received, many of which Mr Clifton took the view were substantiated, the officer's recommendation on this occasion was to refuse the proposed trader's permit as follows:
In consideration of the submissions made with regards to Amenity, Facilities, Safety, Anti-Social Behaviour, Litter and Coastal Hazard, that Council refuse the issuance of a Traders Permit at this location because the proposal would have a material impact upon the amenity and character of the area.
The Council accepted the officer's recommendation and further noted in the Minutes a request that the Chief Executive Officer arrange a Council briefing session to research all suitable locations for temporary trader's permits.
The requested informal briefing session of the councillors occurred on 9 January 2018. As to what occurred at the informal briefing session is in dispute between the parties and is detailed further later in these reasons.
On 17 April 2018 an informal agenda briefing session occurred as per usual one week prior to the Council's consideration of the TPP Policy. Relevant to the proceedings West Beach was no longer included in the draft TPP Policy as a suitable location for a trader's permit.
On 24 April 2018 the Council formally adopted the TPP Policy in its final form which did not include West Beach as a suitable location for a trader's permit.

Respondent's case

The respondent submits that there are six relevant issues that the Tribunal should find in the exercise of its discretion not to approve the proposed trader's permit as follows:
(a)The proposed trader's permit is inconsistent with the TPP Policy, namely that West Beach is not included as a suitable location and also that the food van would not be independent of power and water.
(b)West Beach is an undesirable location for attracting further people due to the inherent risks identified in the recent Coastal Risk Assessment, prepared in conjunction with Surf Lifesaving WA and finalised on 4 July 2017 (Coastal RA), which found that West Beach has the highest level of risk of beaches assessed within the Shire.
(c)The proposed trader's permit has the risk of attracting additional vehicles wishing to park creating a spill over in surrounding areas thereby creating additional traffic risks to vehicles and pedestrians.
(d)The West Beach carpark has issues of minimal or insufficient setbacks by current standards therefore adding further vehicles and pedestrians/customers would create a further safety hazard.
(e)The proposed trader's permit has potential amenity impacts in the residential area relating to noise and odours.
(f)The proposed trader's permit has potential to increase the litter on West Beach.
In support of its case, the Shire provided witness statements of Shire officers Mr Sargent, Mr Clifton and Mr Mathew Walker as well as two residents who live opposite the West Beach carpark, Mr Shaun Beros and Mr Kenneth Richardson.

Applicant's case

The applicant submits that the Tribunal should approve the proposed trader's permit for the following reasons:
(a)The food van will likely improve the amenity and character of the area as it will create a 'community hub'.
(b)The applicant does not expect additional patrons to West Beach due to the existence of the food van.
(c)The applicant challenges the bona fides of the recent development and finalisation of the TPP Policy.
(d)The applicant has canvassed the local community and obtained a significant amount of letters/submissions in support of the proposed trader's permit.
(e)The applicant submits that the coastal hazard for swimmers at West Beach, described by the applicant and one of the supporters as a 'family beach', is not as significant as suggested by the Shire.

Consideration

Submissions from the community

Relevant to the Tribunal's determination in these proceedings are the submissions received by the local community as part of the Shire's consultation process. Also relevant to the Tribunal's determination in these proceedings are the community submissions provided by the applicant and respondent which support and oppose the proposed trader's permit. Many of these submissions also contain relevant witness evidence of observations that the person has made of the traffic and parking issues which arise in the vicinity of West Beach.
Consideration of these submissions requires the Tribunal to give the matters raised due regard in assessing the merits of the proposed trader's permit. Giving due regard to the submissions is not a mere counting exercise of who is for and against the proposed trader's permit or, as the respondent submitted in closing, 'this is not a popularity contest'.
The submissions in support raise a number of matters in favour of approval of the proposed trader's permit such as: support for new business ventures, tourism, lack of food and drink facilities at West Beach and along Twilight Beach Road in general, arguing against the reasons proffered by the Shire for refusal and alleging bias by the Shire against the proposed trader's permit. There are also a number of generic submissions which were obtained by the applicant which simply note they do not object to the proposed trader's permit.
The submissions in opposition raise a number of matters against approval of the proposed trader's permit such as: car parking overflowing onto verges during busy summer days, already frequent near collisions in the carpark, passing motorists who are already distracted being further distracted by the food van, speeding vehicles along Twilight Beach Road, increased litter, odour, noise, unsociable trading hours, pedestrian/customer safety and safety concerns because of the small buffer area between van and road.
The matters raised in these submissions must be given due weight by considering the anecdotal nature of the evidence provided and noting that any opinions expressed in the submissions are opinions that are expressed by individuals who are not qualified to provide opinion evidence. Further, each of these submissions have a somewhat definitive, or fixed, point of view as to the merits of the proposed trader's permit, positive or otherwise so that they are not sufficiently independent opinions to be afforded significant weight.
One particular exception to a community member possessing a definitive point of view is Mr Shaun Beros. The applicant required Mr Beros to attend for crossexamination on his witness statement which detailed his concerns regarding traffic congestion, driver distraction and carpark chaos on busy days. Mr Beros lives directly opposite the West Beach carpark and would often observe the comings and goings which occurred, particularly on his balcony in summer when the carpark was at its busiest. Mr Beros frequently witnessed drivers being distracted and vehicles accidentally mounting the verge as they passed by West Beach carpark. Mr Beros was concerned that the introduction of a food van, a concept that he loved in theory as he quite liked the idea of strolling across the road for a coffee, in practice would be madness. He observed that with the food van attracting more people and vehicles this would make an already chaotic and unsafe situation on busy days even worse.
The Tribunal finds Mr Beros to be an impressive witness. Mr Beros was not effectively challenged or undermined by crossexamination. In fact, the Tribunal found that crossexamination significantly enhanced the strength of his testimony.
The Tribunal accepts, and relies upon in reaching a determination, the evidence of Mr Beros. The Tribunal quotes the following from pages 2 - 3 of his witness statement:
We now note that vehicles are parking on the verges and curbs once the car park is full. These would be the times the proposed business would be looking to profit from the crowds. A food and beverage business would introduce additional traffic pulling into purchase goods along with waiting customers and customers consuming their purchases. Add this to the existing mix of vehicles, beachgoers, surfers, tourists and camper vans, bikes, dogs, children all metres away from the main road. There is also an exit/entry a short distance down from the proposed business site which already banks up with vehicles waiting to get in to and out of the car park.
In addition to this the food and drink business is proposing to set up metres away from public toilets, public showers and a public drinking fountain. There is also designated disabled access and a curb cut away for people with disabilities, wheelchair users, scooter/gopher users and bike users to cross Twilight Beach [R]oad and access the car park from the John [S]treet. This access and cutaway is well utilised as the carpark gives access to the public toilets and the coastal boardwalk for people with disabilities, families, walkers and cyclists. The proposed business van is looking to set up directly alongside this accessway, again no more than a few metres away. People have always crossed the road from and into the car park at this intersection and will no doubt continue to do so. The proposed business site would result in the public, including people with disabilities, coming out from behind the business van to access the designated crossover before crossing a major road notorious for speeding vehicles.
The combination of pedestrians, vehicles coming into and out of the car park, vehicles turning into and out of John [S]treet and Twilight Beach [R]oad, two major roads and public facilities all within metres of each other creates a dangerous mix for all. In addition to this there are already a range of distractions for pedestrians and passing traffic such as the ocean and island views and a range of spectacular activities staged along this stretch of road and from this carpark. After living across the road from [West] Beach car park for some 19 years I have no doubt introducing a food and beverage business into the existing mix during what will be the busiest times of the year will clearly create new and increase existing safety issues for all parties. This public car park and combined public amenities are already overextended at busy times of the year and given the surroundings it is not a venue adequately designed to cater for a private business to safely operate from.
The views of Mr Beros were further supported by Mr Richardson, who also lives directly opposite the West Beach carpark. The applicant also required Mr Richardson to attend for crossexamination on his witness statement. The evidence of Mr Richardson was not effectively challenged or undermined by crossexamination.
Mr Jamie Hudson was the only other resident who lived directly across from the West Beach carpark who shared such a regular and unique observation point of the carpark who provided a submission and evidence to the Tribunal. However, the only content of Mr Hudson's submission was that he had no objection to the food van at West Beach.
The Tribunal has given the matters raised in those submissions due consideration in determining these proceedings. It can be concluded from the submissions that, despite some opposition, that many in the local community support the approval of the proposed trader's permit. However, the matters raised by the submissions which oppose the proposed trader's permit, which in many respects correlate with the matters argued by the Shire, require further consideration.

Development of the TPP Policy

Policy guides and informs the exercise of discretion, it is not determinative of the exercise of that discretion. Properly prepared policy must be given due weight in decisionmaking and departure from policy is done only where circumstances are appropriate to do so.
The first draft of the TPP Policy (as noted above at that time it was entitled 'Traders and Itinerant Vendors'), was considered at the same Council meeting as the initial consideration of the proposed trader's permit on 26 September 2017. The development of the TPP Policy, in particular the guidance by the councillors in developing the policy, is set out in the witness statement of Mr Sargent. The Tribunal finds that Mr Sargent provided evidence in the proceedings as a factual, rather than an expert witness. The final TPP Policy was approved by the Shire at its Council meeting on 24 April 2018.

The applicant sought to rely on the evidence of Councillor Dale Piercey, as well as her own limited involvement in, and knowledge of, the development of the TPP Policy, to support her submission that it is a policy that has not been properly developed and has been altered from its original draft form (when it included West Beach) in order to thwart her proposed trader's permit.
Both the applicant and Councillor Piercey opposed the TPP Policy (noting of course that the applicant did not participate in the decisionmaking). Both Councillor Piercey and the applicant gave oral evidence and the Tribunal had the opportunity to observe their recollection of events and understanding of the development of the TPP Policy and policy generally. Both the applicant and Councillor Piercey are new Councillors only having joined the Council in October 2017. Both were unaware of the introduction of the Local Law in January 2017 and development of policies complementing the Local Law. Both the applicant, and Councillor Piercey in particular, perhaps because they are new councillors seemed somewhat illinformed regarding Shire processes and the development of policy.
It is for the above reasons the Tribunal finds that both the applicant and Councillor Piercey were somewhat vague and unreliable in their evidence. Therefore, in circumstances where the evidence of the applicant and Councillor Piercey differ from that of Mr Clifton or Mr Sargent, the Tribunal prefers the evidence of the latter rather than the former.
Of particular relevance to the present proceedings is the evidence from Mr Sargent that during the development of the TPP Policy, the West Beach carpark was initially included as one of 12 possible locations for food vans. Mr Sargent gave evidence that the West Beach carpark, along with a number of other locations, was ultimately not included in the approved TPP Policy on a number of bases, including concerns over close proximity to passing traffic being a risk to patrons, potential litter management issues, amenity and suitable safe access for patrons.
Mr Sargent explained in his evidence that the draft TPP Policy as at 26 September 2017 proposed four sites for trader's permits. Three of those sites were existing food van sites and the fourth was the new proposed site at West Beach. Mr Sargent further explained that at the informal briefing with councillors on 9 January 2018 that approximately twelve sites were considered and that West Beach was one of the sites removed following this briefing.
When the applicant was providing oral evidence as to what had occurred at the January informal briefing of councillors and the Tribunal queried as to how the applicant knew what had occurred the applicant testified that, despite her pecuniary interest, she attended this councillor informal briefing session. Following the advice of the Chief Executive Officer, the applicant testified that she attended to listen but did not speak or contribute to the briefing session discussions.
Mr Clifton also provided evidence to the Tribunal regarding the factual background to the refusal by the Shire, the development of the TPP Policy and the reasons why the proposed trader's permit should not be approved. Mr Clifton has relevant expertise and experience to express an expert opinion in these proceedings. Further, the Tribunal finds that Mr Clifton understood his obligations as an expert and considered his evidence to be of assistance.
Mr Clifton explained in his evidence that of the eight sites in the now finalised TPP Policy, only three sites are not existing sites (pages 873, 877 and 878 of the Hearing Book). Mr Clifton also explained that the sites included in the finalised TPP Policy were chosen following extensive community consultation (where limited community interest was shown) and ongoing consultation with councillors. Mr Clifton testified that at the time of removing West Beach from consideration and adding in the three new sites listed above he did not consider it necessary to engage in any further community consultation.
Mr Clifton informed the Tribunal at paragraph 56 of his witness statement that the determination of the designated trading zones where mobile food vendors can operate in the finalisation of the TPP Policy were identified having regard to:
(a)the ease of access and manoeuvring of mobile food vans or trailers within the area;
(b)whether the area provided a suitable setback from the thoroughfare and provided sufficient space for the separation of different user groups, the trader and noise sensitive premises;
(c)whether there was limited or some services provision, (that is power); [and]
(d)whether the site reduces the risk between the different uses of the thoroughfare or public place.
Mr Clifton stated that West Beach was not included due to the considerations identified above.
The applicant has submitted expressly and impliedly, that the development of the TPP Policy in its final form excluding the West Beach carpark was a deliberate, and inappropriate, act on the part of the Shire's officers to thwart the proposed trader's permit. The Tribunal finds no evidence to support that submission. In fact, the Tribunal finds that the Shire's officers, namely Mr Clifton and Mr Sargent, have acted with no particular agenda to ensure a particular outcome as they have simply responded to further cogent information as it has come to their attention.
Further, the Tribunal does not accept the submission, whether expressly or impliedly made by the applicant, that Shire officers have sought to improperly influence councillor decisionmaking when it is clear from the history of the consideration of the proposed trader's permit and the development of the TPP Policy that the Council, whilst it takes into account officer recommendations, decides independently of such recommendations.

West Beach coastal hazard

Mr Clifton, amongst others, reported that West Beach is a popular beach and is currently used for surfing, bodyboarding, exercising dogs, walking and sightseeing. Mr Clifton directed the Tribunal's attention to the Coastal RA, where the finding of the assessment is that West Beach has the highest level of risk of beaches within the Shire (that were assessed).
Mr Clifton gave evidence that, following deferral of the Shire's decision on 26 September 2017 for public consultation, until receipt of a particular public submission he was unaware of the Coastal RA conducted by Surf Life Saving Western Australia in conjunction with the Shire and finalised in July 2017. Mr Clifton concluded from his reading of the Coastal RA that the characteristics of West Beach, whilst excellent for surfing, however are hazardous for swimming and other beachgoers owing to the rips and rocks. Mr Clifton is of the opinion that the proposed trader's permit has the potential to increase the activation of West Beach by attracting more people to West Beach which increases their risk potential of being exposed to coastal hazards.
Other than making submissions without sufficient foundation, such as the risks at West Beach are not as significant as the Shire suggests, the applicant provided no cogent evidence that challenged the significant risks identified at West Beach in the Coastal RA.

Officers' recommendations

It is a relevant consideration for the Tribunal in determining these proceedings, at first instance and prior to consideration of public submissions, Messrs Sargent and Clifton as officers of the Shire recommended approval of the proposed trader's permit subject to conditions. After considering the public submissions and, (in Mr Clifton's view) substantiating the issues raised, the officers recommended refusal of the proposed trader's permit. Just as that initial recommendation is not determinative of the exercise of the Shire's discretion, that recommendation, whilst relevant, is not determinative of the exercise of the Tribunal's discretion whether to approve the proposed trader's permit.
The fact that the officers involved, principally Mr Clifton, actually changed their mind from a recommendation to issue the proposed trader's permit to a recommendation to refuse the proposed trader's permit indicates to the Tribunal that the officers involved are not wedded to any particular view point nor are they acting to improperly thwart the applicant's proposed trader's permit.

Traffic and pedestrian safety

Mr Walker has relevant traffic expertise and experience to express an expert opinion in these proceedings concerning road and pedestrian safety. The applicant sought in crossexamination to undermine the expertise of Mr Walker. It was quite properly elicited in crossexamination that Mr Walker's formal engineering qualifications did not relate to traffic engineering, however it also became clear that Mr Walker has amassed expertise in traffic and pedestrian safety as well as road design through his practical experience in local government. Indeed, Mr Walker was the only witness who possessed any relevant expertise to provide an opinion on traffic and pedestrian safety or the design of roads and carparks.
Further, the Tribunal finds that Mr Walker understood his obligations as an expert and considered his evidence to be of considerable assistance in determining these proceedings.
Mr Walker provided evidence that 72.6% of vehicles travelling along Twilight Beach Road have recently been found to be travelling in excess of the allowed speed limit of 50 kilometres per hour and that statistically the chance of a vehicle crashing in the vicinity of West Beach is over four times the risk when a vehicle is travelling at the speed limit.
Mr Walker is also of the view that given the short distance of the proposed trader's permit location and its activity type (that is to attract patrons) that it has the potential to cause a distraction to a passing motorist, thereby also serving to increase the risk of accidents and to further reduce road safety in the vicinity.
Mr Walker also has concerns about activity in what he calls the 'clear zone'. According to the Austroads Guide to Road Design Part 6, the required 'clear zone' width is 4.5 metres for a road with the design of 60 kilometre per hour or less with between 1,500 to 6,000 average daily traffic with a fill batter of 6:1 to flat. Mr Walker explains in his evidence that the site of the proposed trader's permit would occur within the 4.5 metre 'clear zone' and it would attract pedestrians into the 'clear zone' which is not considered good practice in terms of road safety.
Mr Walker explained in crossexamination that, whilst the existing kerbed area division of 1.6 metres may have been historically acceptable, it is prudent and usual practice when assessing new proposals to assess them against the current guidelines which require a 4.5 metre 'clear zone' and that any pedestrian activity in the 'clear zone' is not recommended.
Mr Walker expressed the view, if the proposed trader's permit was approved, in order to improve the safety of pedestrians at the site, a barrier would need to be installed such as a guard rail or wire rope barrier. Mr Walker explained that installation of a barrier was not his preferred outcome (refusal of the proposed trader's permit was his preference) as the hazard to pedestrians would be replaced with a potential hazard of the barrier to vehicles.
The applicant crossexamined Mr Walker seeking to challenge and undermine the basis of his opinion. The Tribunal is of the view that the applicant was unsuccessful in this regard. The Tribunal finds that Mr Walker was a persuasive expert witness whose opinions were derived from logic and sound reasoning. The Tribunal accepts, and relies upon, the opinion of Mr Walker in determining these proceedings.

Other issues raised

Mr Clifton also raises a potential for the amenity of the area to be impacted upon by noise in circumstances where the hours of operation proposed by the applicant are from 6 am Monday to Sunday with no stipulated closing time. The Tribunal considers that any nuisance issues as to noise could be appropriately managed by way of condition if the Tribunal was minded to issue the proposed trader's permit.
Mr Clifton also raises the issue that the operation of a mobile food van has the potential to increase litter in the location in circumstances where there are two 240 litre wheelie bins located in the carpark and no bins on West Beach itself. Whilst the Tribunal acknowledges Mr Clifton's concern in this regard, the Tribunal does not see this as a reason on its own or in combination with other reasons, to refuse the proposed trader's permit as it could be appropriately managed by way of condition if the Tribunal was minded to approve the proposed trader's permit.
Mr Clifton is of the view that the West Beach carpark does not lend itself to the parking and/or manoeuvring of vehicles towing trailers and that this creates the potential to cause conflict between users of the carpark. Whilst the Tribunal acknowledges Mr Clifton's concern in this regard, the Tribunal does not see this as a reason to refuse the proposed trader's permit as the Tribunal takes the view that the manoeuvring and parking of the food van trailer would occur at the beginning and end of the trading day when it is to be expected that the carpark will be underutilised.
In the circumstances where odour complaints in relation to food vans have not been raised elsewhere in the Shire, the Tribunal is not convinced that odour is a sufficient reason to refuse the proposed trader's permit. Equally the Tribunal was not convinced that utilising the power on site (rather than use a generator which may itself bring about noise complaints) was a sufficient reason to refuse the proposed trader's permit.

Conclusion

The Tribunal note, that much of the applicant's case focussed on irrelevant matters such as criticising the processes of the Shire, in particular the consultation process, undertaken by the Shire in relation to her application rather than eliciting evidence, including expert evidence, in answer to the issues raised by the Shire as to why the Tribunal should not approve the proposed trader's permit. Further, whilst the Tribunal is cognisant that the applicant is unrepresented in the proceedings and the Tribunal did seek to assist the applicant in fairly eliciting evidence from witnesses in oral testimony, the Tribunal finds that there is little cogent or persuasive evidence to support the submissions made by the applicant in support of the proposed trader's permit.
The applicant has not provided any expert evidence to counter the issues raised by the Shire in opposition to the proposed trader's permit. In particular, the applicant has not provided any expert evidence concerning the risk that the proposed trader's permit in attracting patrons to the business actually attracts more people to West Beach itself. Nor does the applicant have any expert evidence to persuade the Tribunal that the risk assessment for West Beach in the Coastal RA is in any way incorrect. Most importantly, the applicant has not provided any expert traffic engineering or other cogent traffic safety evidence to counter the expert opinion of Mr Walker.
The Tribunal finds that the reasons why the West Beach carpark was not included in the TPP Policy are, unsurprisingly, consistent with the reasons advanced by the Shire as to why the Tribunal should refuse to approve the proposed trader's permit.
The Tribunal finds that the very nature of the business to be undertaken by the food van under the proposed trader's permit involves the attraction of customers and that these customers, as evidenced by the community support not to mention the possibility of passing tourist trade, would increase the patronage of the West Beach carpark and potentially also West Beach itself. The Tribunal finds, even in accepting the applicant's submission that customers would likely place their food order and then move toward looking at the view whilst waiting for their order, that the very nature of the food van business involves congregation of people around the van that would be longer and more significant than the usual movements of pedestrians on a footpath or in a carpark. Therefore, the Tribunal finds that the proposed trader's permit would unacceptably increase the safety risks due to the expected increase of patrons to the West Beach carpark and West Beach itself as well as their behaviour being altered by the introduction of the food van.
In the exercise of the Tribunal's discretion upon review and applying the relevant considerations under cl 6.5(1) of the Local Law, even in circumstances where there is significant community support and there are many positive aspects to the proposed trader's permit, the Tribunal finds that it is not appropriate to approve the proposed trader's permit. In having due regard to the TPP Policy in circumstances where the Tribunal finds that the TPP Policy should be applied and not departed from in this instance, the Tribunal finds that the proposed trader's permit is inconsistent with the TPP Policy in that it is not an identified location for such an activity to occur and that this is such a significant inconsistency as to warrant refusal.
In the exercise of the Tribunal's discretion upon review and applying the relevant considerations under cl 6.5(1) of the Local Law, independently of the inconsistency with the TPP Policy, the Tribunal finds that the proposed trader's permit should be refused as it is not the appropriate location for such an activity. This is principally for two safety reasons.
Firstly, traffic and pedestrian safety will be further compromised in the vicinity of West Beach and Twilight Beach Road and the carpark by the introduction of the proposed trader's permit increasing patronage of the carpark. Secondly, the potential for the attraction of additional patrons to West Beach, including tourists who are not familiar with the many hazards of West Beach, poses additional safety risks for those patrons as identified by the Coastal RA.

Orders

In accordance with these reasons, the Tribunal orders as follows:
1.The review is not allowed.
2.The decision of the respondent on 28 November 2017 refusing the proposed trader's permit is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
19 JUNE 2018