Red Sun Camels Pty Ltd & Anor and Shire Of Broome
[2008] WASAT 201
•29 AUGUST 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: RED SUN CAMELS PTY LTD & ANOR and SHIRE OF BROOME [2008] WASAT 201
MEMBER: JUSTICE M L BARKER (PRESIDENT)
HEARD: 2 JULY 2008 AND 19 AUGUST 2008
DELIVERED : 29 AUGUST 2008
FILE NO/S: DR 198 of 2008
DR 222 of 2008
BETWEEN: RED SUN CAMELS PTY LTD
First Applicant
SHIPS OF THE DESERT
Second ApplicantAND
SHIRE OF BROOME
Respondent
Catchwords:
Local government - Local law regulating trade in a public place - Commercial Camel Activities on Cable Beach Policy - Conditions on licence - Setdown areas - Requirement of operators to be independent
Legislation:
Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Laws 2003
State Administrative Tribunal Act 2004 (WA), s 27, s 28
Result:
Review application dismissed
Shire's decision to impose conditions affirmed
No order as to costs
Category: B
Representation:
Counsel:
First Applicant : Mr J MacLaurin
Second Applicant : Mr J MacLaurin
Respondent: Mr P Wittkuhn
Solicitors:
First Applicant : Julia Barber & Co
Second Applicant : Julia Barber & Co
Respondent: McLeods
Case(s) referred to in decision(s):
Bird and Shire of Broome [2006] WASAT 338
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Madden and Shire of Broome [2007] WASAT 207
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274
Mortgage Force Service Pty Ltd and Commissioner of State Revenue [2007] WASAT 53
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In April 2008, the Shire of Broome approved three applications for trading licences for camel tours on Cable Beach, being those of Red Sun Camels, Ships of the Desert, and Broome Camel Safaris. The approval of each application was subject to compliance with the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Laws 2003, the requirements of the Shire of Broome Commercial Camel Activities on Cable Beach Policy and the stabling of camels at a particular location.
Red Sun Camels Pty Ltd and Ships of the Desert sought review of the conditions that required:
•No individual business shall hold more than one (1) trading licence at any time and will operate independently at all times; and
•The specification of separate set down areas for each operation.
Ships of the Desert also sought review of a condition that prescribed the route to be followed from the land at which the camels were stabled to Cable Beach.
The Tribunal considered that in all the circumstances the Shire had not taken an unreasonable policy approach in relation to the requirement of independence. However, the Tribunal also noted that independence does not necessarily preclude operators from cooperating in various respects in the conduct of their businesses.
The Tribunal further considered that good beach management practices required the appropriate separation of the three camel trains in relation to their respective set-down areas and supported the Shire's decision in that regard.
However, the Tribunal also noted that if and when the Shire's proposed restrictions on the access of vehicles to Cable Beach eventually takes effect it would seem appropriate for all parties to reconsider the camel set-down locations.
The Tribunal altered the condition concerning the route to Cable Beach to be followed by the Ships of the Desert camel train.
Issues
The issues for consideration in these proceedings may generally be stated as follows:
•Whether the Shire of Broome (Shire) has the power to impose a condition on a trading licence granted under the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Laws 2003 (Local Law), that specifies that 'no individual or business shall hold more than one (1) trading licence at any time and will operate independently at all times' and, if so, whether such a condition should be imposed;
•Whether the trading licence granted to Ships of the Desert that provides that 'the operator is to ensure that camels only wait and rest and customers are only picked up from and set down at the set-down area identified as Area A in Attachment 1 to this licence' should be varied so that the set-down area might be along side the set-down area identified in a similar condition imposed on the holder of another such trading licence, Red Sun Camels; and
•Another condition that was initially the subject of some contention between the parties and the Shire, to the effect that the camel tours are to proceed only on an approved route, effectively ceased to be an issue at the commencement and during the proceeding but required consideration by the Tribunal as to its proper terms.
Background to the issues
Some of the background to the issues raised in these proceedings may be found in the earlier Tribunal decisions of Bird and Shire of Broome [2006] WASAT 338 and Madden and Shire of Broome [2007] WASAT 207.
In Bird and Shire of Broome, the Tribunal allowed applications for review of decisions of the Shire refusing applications for trading licences to operate camel tours on Cable Beach North made by Alan Bird and Alison Bird and Abdul Casley. Three such licences had been granted by the Shire to Red Sun Camels Pty Ltd. The Tribunal also set aside the Shire's decision approving the trading licence applications of Red Sun Camels Pty Ltd. The Tribunal made it clear that its decision was based on the impermissible inclusion of a weighted 'Price -50%' factor applied pursuant to the Shire's then policy and selection criteria which had been designed to govern the grant of licences for tours on Cable Beach North.
Following the decision in Bird and Shire of Broome, the Council revised its policy approach to the question of trading licences for camel tours. It then granted three separate licences to each of Broome Camel Safaris, Red Sun Camels and Ships of the Desert for the period 1 April 2007 to 31 December 2007. In Madden and Shire of Broome, Mr Madden's application to be granted a trading licence - in effect to be a fourth operator - was dismissed.
At its ordinary meeting of 18 December 2007, the Council of the Shire adopted a recommendation that Council extend all current existing licences for trading on Cable Beach so that they operated until 30 April 2008, to allow for a review of the policies to be finalised, including as to the setting of fees, and inviting operators to apply for a licence and for Council to determine applications.
On 15 January 2008, the Shire published a draft 'Commercial Camel Activities on Cable Beach Policy' and sought public comment on the draft policy. At its ordinary meeting on 14 February 2008, the Council of the Shire formally endorsed and adopted that policy subject to a number of amendments.
The policy as adopted by the Council of the Shire remains current and in relevant respects emphasises the following points and contains the following relevant provisions:
•Cable Beach is a highly valued environmental, cultural and social asset under the care and control of the Shire of Broome that is enjoyed by visitors and residents alike.
•The Shire's focus for Cable Beach is to sustain a place where the natural environment, on which life depends, is maintained, whilst at the same time the built environment contributes to the economy and a quality lifestyle for all. The Shire will continue to maintain Cable Beach for family orientated and informal recreational pursuits.
•The Shire's Plan for the Future identifies that the Shire will work with the community and other agencies to encourage appropriate investment and business development to ensure a diverse economic base for which all members of the community may benefit. To support economic development the Shire supports the granting of three Trading Licences for commercial camel activities on Cable Beach.
•The objectives of the Camel Policy are to:
(1)Provide additional information that is not defined in the Local Law for the administration of the Local Law that applies specifically to commercial camel activities on Cable Beach; and
(2)Set out the criteria and conditions for the approval of Trading Licences that specifically applies to commercial camel activities on the Cable Beach.
•The Shire will grant three Trading Licences for commercial camel activities on the Cable Beach.
•No individual or business shall hold more than one Trading Licence at any time and will operate independently at all times.
•Trading licences for commercial camel activities on Cable Beach will be approved for a period of five years.
•At the morning session, all camels must be removed from Cable Beach by 10.00 am. No camels shall enter Cable Beach before 2.30 pm in the afternoon.
•No commercial camel activities are to take place on Cable Beach between the hours of 10.00 am and 2.30 pm.
•The Shire will invite applications for each of the three available trading licences for commercial camel activities with reference to the Local Law and the criteria set out in the Camel Policy;
•Council approved access route, allocated pick-up and set-down area and operating area noted on each licence must be adhered to at all times.
•A licensee may transfer a current trading licence in their name in accordance with s 5.3.1 of the Local Law.
•Furthermore the licence transfer recipient must submit a trading licence application, which must address the criteria of this policy, which will then be processed in accordance with its policy.
•Council may refuse to consider or determine the application in accordance with s 2.2.3 of the Local Law.
Following the invitation for applications, at its ordinary meeting on 10 April 2008, the Council of the Shire approved the following applications for a trading licence under the Local Law for camel tours on Cable Beach, namely, those applications from:
•Broome Camel Safaris;
•Red Sun Camels; and
•Ships of the Desert.
The approval of each application was subject to:
•Compliance with the requirements of the Local Law at all times;
•Compliance with the requirements of the Shire of Broome Commercial Camel Activities on Cable Beach Policy at all times; and
•The stabling of camels at a particular location.
A fourth application (not relevant to these proceedings) was rejected.
By letters dated 18 April 2008, the successful applicants were advised of the relevant terms of the Council's approval.
Under the Local Law, as explained in the Tribunal's decision in Bird and Shire of Broome, there is a two stage licensing process. First, there is an approval of an application for a licence, and then there is the actual grant of the licence. At the point that the Shire proceeded to the step of actually granting the licence, the successful applicants Red Sun Camels and Ships of the Desert objected to the conditions identified by the Shire, that:
•No individual business shall hold more than one (1) trading licence at any time and will operate independently at all times; and
•The specification of separate set down areas for each operator.
Ships of the Desert also objected to the condition specifying the route its camel train had to follow to Cable Beach.
So far as the set down areas were concerned, Red Sun Camels were assigned a set down area closest to the rocky area that in turn is closest to the point at which customers usually enter onto Cable Beach in order to take a camel tour. The licence granted to Broome Camel Safaris (operated by Ms Alison Bird) was designated a set-down area immediately to the north of that of Red Sun Camels. Ships of the Desert was then allocated a set-down area immediately to the north of Broome Camel Safaris. In the result, the set-down areas of Red Sun Camels and Ships of the Desert were separated by the setdown area designated for Broome Camel Safaris.
At that point Mr Chris Hill, operator of Ships of the Desert, raised with the Shire his desire to have - in his terms 'maintain' - a set down area immediately adjacent to - or alongside - that of Red Sun Camels. This was because he and Mr and Mrs Geappen, who operate Red Sun Camels, had in effect allied their operations and for some months had found it convenient to have adjacent set down areas. More will be said of this later.
The Council, however, took the view that in order to meet both of the conditions concerning independence and appropriate set down areas it would be necessary for Ships of the Desert to set down in front of Ms Bird's operation.
It is this practical scenario that gives rise to the two main issues in these proceedings.
Ships of the Desert's position
The position of Ships of the Desert (Mr Hill) is conveniently and concisely set out in a letter that Mr Hill wrote to Mr Jackson, Director Community Services, Shire of Broome, dated 6 May 2008, to the following relevant effect:
•It has only been since July 2007 that the three camel operators have met and set down their respective camel trains at the same point and time.
•As the new owner of Ships of the Desert and in an attempt to prevent any unrest between the other two operators he elected to take the furtherest point from the rocks as his set-down point. At that time his nearest competitor was only using 10 camels (a reference to Ms Bird).
•From the on-set he has endured abuse, threats, and nothing but unrest upon arrival at his set-down point because vehicles and members of the public, in particular nude sunbathers and general beach users, are invariably established within his set-down area. This causes much angst amongst beach users, his staff and himself.
•In early September 2007, he personally met with Paul Dixon from the Shire and advised him that he had discussions with Mr Geappen of Red Sun Camels who had agreed to permit him to set-down adjacent to his camel train.
•That arrangement has been in place since that time and it has worked well with no compromise to other beach users or the third camel operator (Ms Bird).
•Given the close working relationship he has established with Red Sun Camels, and the significant number of large groups that they have and continue to accommodate, it is in the interests of the client and quality customer service that they provide the service paid for in a manner that reflects them working together and supporting the iconic image that is camel rides on Cable Beach, which can only be achieved by working in close proximity to each other.
•With three camel trains of 16 camels each and a required safe distance of 30 metres between each, this means that his clients have to walk a considerable distance to access his business at the designated sit-down point. Given the ever increasing age of the population and the popularity of the elderly in doing the camel ride, a set-down point this far away is unproductive, stressful to the elderly and not in the interests of the other beach users.
•Ships of the Desert is the longest established camel business in Broome, conducting rides since 1981. Red Sun Camels have conducted rides since 1991. Broome Camel Safaris (Ms Bird) has only conducted sunset rides since 2002. Therefore one can reasonably conclude that Ships of the Desert should be at the first point, Red Sun Camels at the second and Broome Camel Safaris the furtherest away.
•He has been operating in this way for over eight months without any problems or complaints from either of the other camel operators or other beach users.
•At a recent meeting on 5 May 2008, Ms Bird only indicated that her camels 'can't be seen by our customers'.
Broome Camel Safaris' position
Following the meeting on 5 May 2008, Ms Bird, on behalf of Broome Camel Safaris, wrote to Mr Jackson setting out her concerns in relation to the set down areas discussed at the meeting.
The letter from Broome Camel Safaris again neatly sets out the then view of Ms Bird and the position more or less taken by her at the hearing. Ms Bird, in her letter to Mr Jackson dated 8 May 2008, made the following points:
•Red Sun Camels and Ships of the Desert are sitting their camels down side by side in a place where only one operator should be.
•Ms Bird had earlier objected verbally and was now objecting in writing.
•Ms Bird's concerns are that this is not a safe practice with the camels very close together, and even if they are very well trained camels, accidents can happen. Ms Bird provided an example to this effect.
•Ms Bird was also concerned because the current arrangements visually block her passengers' view of her camel team when they come through the rocks.
•Ms Bird is under the impression that each operator is supposed to operate independently, and it is obvious this is not what is happening with Red Sun Camels and Ships of the Desert.
•Ms Bird proposed that if the other two operators need to be close to each other for some reason, then they could if Broome Camel Safaris were in the first position closer to the rocks and the other two sat in front of each other in the next two positions, as opposed to sitting side by side.
Red Sun Camels' position
By letter dated 6 May 2008, Janet and John Geappen, on behalf of Red Sun Camels Pty Ltd, wrote to Mr Jackson at the Shire following the meeting on 5 May 2008. This letter also neatly sets out the then and subsequent position of Red Sun Camels. The Geappens made the following points:
•Ships of the Desert from commencement in approximately 1981 until June 2007 loaded their passengers and commenced their ride at their property in Lullfitz Drive. They walked through Hidden Valley to the beach and proceeded south toward the rocks, unloading and reloading, at the set down area north of the rocks. Due to this practice, Ships of the Desert were very rarely at the set down position at the same time as Red Sun Camels or Broome Camel Safaris and would set down wherever convenient. Accordingly, until 1991 when Red Sun Camels commenced, Ships of the Desert had the beach to themselves.
•Red Sun Camels walked their camels to the beach via Sanctuary Road past the Sunset Bar onto the beach via a track behind the bluff (which is now blocked) to set down immediately north of the rocks in the soft sand, and have remained in that position since 1991.
•Broome Camel Safaris commenced operating camel tours on the beach in 1996 and were restricted to morning rides only until they were granted permission to provide sunset rides in May 2003. They walked onto the beach and through the rocks as they currently do. Being a new arrival, they sat down further north along the beach, keeping a clear distance between their camels and the Red Sun Camels.
•When Ships of the Desert was sold to Chris Hill in July 2007, Ships of the Desert were obliged to cease walking through Hidden Valley, and so for the first time began loading at the same time as the other trains north of the rocks.
•Three separate camel businesses on the beach at the same time creates a lot of confusion for the customer. Most are not aware there is more than one company, let alone three. With an ageing and increasingly unfit population, it is in no one's interest to spread further along the beach than is necessary.
•The set down position that Ships of the Desert was obliged to use from July 2007 is an area of the beach that annual visitors to Broome set themselves on for the day every day from June to September. Some of these people have abused Ships of the Desert for invading their space. It was for this reason that Mr Hill discussed with Mr Geappen the possibility of working his train safely beside Red Sun Camels.
•Red Sun Camels and Ships of the Desert are currently sitting side by side safely away from the car access track and commenced this practice by mutual agreement in September 2007. Both found it to be safe, more efficient and easier for the customer. With one checkin point for two businesses, there is less confusion for the passengers as it is easier to direct passengers to the appropriate train.
•Twothirds of the camel riders walking through the rocks now come straight up into the soft sand away from the traffic to check in. This practice is much safer than having groups walking 200 metres along the hard sand.
•Prior to the meeting on 5 May 2008, they were not aware of any complaint from Ms Bird in respect of the present set down positions actually used. There is no evidence that it has compromised her business, the safety of her passengers or the general public. Broome Camel Safaris have been in their current location since the commencement of their sunset rides in May 2003.
•The condition about set down areas should be objective, practical, fair, and in the interests of the public and effective beach management, rather than a competitive business marketing strategy.
•Red Sun Camels are not prepared to relinquish to a competitor the set down position that they have enjoyed for the past 17 years.
•With the current situation between Red Sun Camels and Ships of the Desert, both trains are parked in the soft sand just north of the rocks. Both trains create less congestion or hazards to other traffic as they enter and exit the vehicle path and the least amount of holdups. This is particularly pertinent when exiting the beach after sunset. For Ships of the Desert or any other operator to set down further up the beach would force that third operator to create a traffic hazard and increase traffic congestion.
Cooperation between Ships of the Desert and Red Sun Camels
As noted in the letter of Red Sun Camels to the Shire dated 6 May 2008, Mr Hill purchased the business of Ships of the Desert in July 2007.
At the hearing, Mr Hill explained the nature of his interest and the way he has since cooperated with Mr Geappen of Red Sun Camels since acquiring his business. Mr Geappen also gave evidence explaining that cooperation.
At the outset, it should be noted that when Mr Hill acquired the business, he applied for a transfer of the trading licence under the Local Law, and this was granted by the Shire.
Mr Hill first became involved with Mr Geappen in 2003. He and Mr Geappen had discussed working together at the time Mr Geappen initially decided to apply for all three licences (that were subsequently granted by the Shire but then invalidated by the Tribunal) on the proviso that Mr Hill became actively involved in Mr Geappen's company's operation. Mr Hill says it was agreed that he would work with Mr Geappen where some cooperation between them would be required or desirable, but also that he would attempt to obtain a licence of his own if possible. He then came to Broome in early 2006 bringing a number of camels with him.
In June 2006, Mr Geappen was awarded all three licences. They were subsequently revoked in November 2006 by the Tribunal. By that time, Mr Hill had been working with Red Sun Camels for eight months.
Mr Hill says the owner of Ships of the Desert approached him in the first week of June 2007 with a view to selling his business to him, and he ultimately purchased the business on or about 1 July 2007.
Mr Hill says that from the time he purchased the business of Ships of the Desert, there 'was no secret (and we kept it no secret) that John [Geappen] and I would continue to operate closely, notwithstanding we had agreed that regardless of ownership we would continue to operate two separate camel trains whilst sharing business expenses'.
In order to operate Ships of the Desert, Mr Hill then leased 20 camels from Red Sun Camels.
The extent of the cooperation or collaboration between Red Sun Camels and Ships of the Desert is as follows:
•Red Sun Camels and Ships of the Desert work in harmony.
•The two business names continue to be used, two separate camel trains with separate colours also continue to be used.
•The blankets used on Ships of the Desert continue to reflect the tradition of Ships of the Desert.
•The two businesses share a centralised booking centre so that, for example, when Broome Visitors Centre telephone, they are given the availability of two separate businesses rather than one.
•The administration and bookkeeping costs are shared.
•The two businesses share a centralised camel holding and saddling enclosure area, with the associated benefits to the camels, staff working conditions and cost savings.
•There is a common staff pool. The result is a streamlined approach to both businesses.
The independence issue
The first issue that arises concerns the validity and appropriateness of the condition providing:
No individual or business shall hold more than one (1) trading licence at any time and will operate independently at all times.
The Shire submits that the condition concerning independence stems from considerations of 'public policy' that are 'not readily justiciable'.
The notion that the condition is 'not readily justiciable' owes itself to a contention that sometimes courts do not or should not engage in judicial review of governmental decisions because of their intrinsic nature. For example, the decision may be one that represents the exercise of a very important executive power, such as the power to declare war, or it might represent the exercise of an executive power which is highly discretionary, in the sense that there are no particular criteria which must be regarded before the power is exercised. However, there seems not to be any clear non-justiciability rule. See generally Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; C Finn, 'The Justiciability of Administrative Decisions: A Redundant Concept?' 30 (2002) Federal Law Review 239. In any event it has no basis in relation to the responsibility of this Tribunal to conduct an administrative review of an administrative decision under the SAT Act.
This Tribunal has the statutory obligation to conduct a review of the merits of a decision, where it has jurisdiction under an enabling Act: s 17 and s 18, SAT Act. The review hearing the Tribunal conducts is de novo and is not confined to the matters that were before the original decision-maker but may involve the consideration of new material, whether or not it existed at the time the original decision was made: s 27(1), SAT Act. The purpose of the review in the Tribunal is to produce the 'correct and preferable decision' at the time of the decision upon the review: s 27(2), SAT Act. Reasons for decision provided by the decision-maker do not limit the Tribunal in conducting a proceeding for the review of a decision: s 27(3), SAT Act. It follows that the Tribunal is obliged to conduct a review of the appropriateness of the disputed conditions concerning both independence and set down areas. In that regard, the Tribunal stands in the shoes of the primary decision-maker, in this case the Shire.
So far as a 'policy' of a decision-maker is concerned, this may be relevant to an assessment of the rationality of a given decision and what the correct and preferable decision should be in a given case. However, 'policy' is not generally binding on the Tribunal. Section 28 of the SAT Act provides that if a certificate is given by the minister responsible for the administration of an enabling Act that, at the time of the reviewable decision, a statement policy had been published in the Government Gazette under written law and applied to decisions of the kind under review, then the Tribunal in conducting the proceeding 'must have regard' to the statement of policy as in effect at the time of the review.
However, the 'policy' of the Shire encapsulating the independence requirement is not a policy to which s 28 applies. Rather, the 'policy' fits into the category of a more informal policy that decision-makers are often encouraged to develop so that their decision-making is rational and, from one case to the next, is consistent. Informal policies of this kind are widely used to inform official decision-making in many areas of government in this way. They are, for example, widely used in planning and development decision-making by local governments. Indeed, good public administration could not be provided without them.
Nonetheless, as I have explained on an earlier occasion, the existence of a policy cannot replace the discretion of the decision-maker, in the sense that the policy is to be inflexibly applied regardless of the merits of the particular case. However, 'the relevant consideration in many applications will be why the ''policy" should not be applied; why the … principles that find expression in the "policy" are not relevant to the particular application': Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24].
In this case, the question really is what the justification for the independence condition is, what ends does it serve and whether, in the context of the grant of a trading licence in respect of the operation of camel tours on Cable Beach, such a condition makes good practical sense as far as the governance of the municipal district of Broome is concerned.
The Shire's suggestion, then, that the issue of the independence condition is 'not readily justiciable', that it is, in effect, outside the scope of the Tribunal's review of the Shire's decision, is misplaced.
The starting point on a review of the independence condition is the Commercial Camel Activities on Cable Beach Policy itself that was adopted by the Council of the Shire on 14 February 2008. That policy was first proposed in a draft and then, following some modifications, adopted. It is clear from the terms of the introduction to the policy, quoted earlier in these reasons, that the Shire considers trading activities on Cable Beach should be regulated in order to protect 'a highly valued environmental, cultural and social asset' that is 'enjoyed by visitors and residents alike'.
The Tribunal has no difficulty at all in endorsing that consideration in the development of such a policy and in the identification of relevant conditions to be imposed on a trading licence to trade on Cable Beach. One does not need to spend much time to find support for the view that Cable Beach is rightly famous for its natural beauty throughout Western Australia, Australia and elsewhere and patronised by tourists from near and far. There is also evidence before the Tribunal, given by the operators of both Red Sun Camels and Ships of the Desert, that tourists on large passenger vessels calling at Broome port book camel tours well in advance. The camel tours are said to be 'iconic' - no doubt a much over used word these days - of Broome generally and of Cable Beach in particular. It goes without saying that, unless carefully regulated and managed, the environmental, cultural and social asset that is Cable Beach could be depleted or destroyed.
Thus, there is no doubt about the good sense in limiting the number of camels that can be involved in tours, and ultimately the number of tours that can be operated on Cable Beach. That much was discussed and approved in the decision of the Tribunal in Madden and Shire of Broome.
The question now before the Tribunal is whether the Shire can go further and effectively say that licences will only be given to persons who operate independently of other licence holders. The intention here plainly is that the Shire is entitled to, and should, facilitate the operation of separate businesses. The Shire's stated intent in the policy is that a number of residents of Broome should have a reasonable opportunity to engage in the camel tour business and that all licences should not in effect go to one person. Allied to that consideration, although in truth a separate issue, is an issue raised in the course of the Tribunal hearing by Councillor Wevers, to the effect that a better service for consumers is likely to be provided if there is real competition between three independent operators of camel tours.
The current policy explicitly reflects the first, resident business opportunity consideration where it provides that:
The Shire's Plan for the Future identifies that the Shire will work with the community and other agencies to encourage appropriate investment and business development to ensure a diverse economic base from which all members of the community may benefit. To support economic development the Shire supports the granting of three Trading Licences for commercial camel activities on Cable Beach.
Leaving aside then the views of Councillor Wevers for the moment that the requirement for three operators is more likely to produce a competitive environment for the benefit of consumers of camel tours, the question is whether it is open, as a matter of law, and desirable, as a matter of approach, for the policy under which the Shire grants these trading licences and imposes conditions on them explicitly to pursue the object of encouraging "appropriate investment of business development to ensure a diverse economic base from which all members of the local community may benefit".
It seems to the Tribunal that it is at least arguable that such an objective may be achieved by the imposition of an independence condition. If a trading licence in respect of camels enables a licence holder to have up to 16 camels in a tour (it being understood that the sunset tours are the most popular and therefore the most profitable), then that licence may well form the basis of a viable business. If no one person can hold more than one such trading licence, then it means that three persons in the local economy may 'obtain jobs' in that sector of the economy. It seems, from the Shire's assessment of the situation, that having three persons engaged in profitable endeavour, rather than just one or two, is a worthy objective. While one might argue with this proposition along the lines that there is no reason why a single operator, operating under appropriate conditions, might not provide an excellent service to the community, and employment opportunities to a range of persons engaged in the camel tour business in Broome, the idea that three operators helps sustain a better, more diverse local economy, cannot be dismissed out of hand.
As a matter of law, in some areas of regulation of activities by statute it is well understood that factors such as competition reduction (or promotion) are not necessarily relevant to the exercise of a statutory power. For example, in the decision of the High Court of Australia in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, which had to do with town planning controls, Barwick CJ at 681 said that:
economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter.
The result in that case was that, in deciding whether or not a particular land use should be permitted or refused, it was not open to the planning authority to make a decision based on the objective of protecting an existing business operator from competition.
It is not, however, immediately obvious to the Tribunal that the powers of the Shire under the Local Law when granting trading licences, necessarily exclude consideration being given to economic factors generally or competition factors in particular. Nonetheless, when a local government decides to become, in effect, an economic regulator and protector or promoter of competitive forces, it is likely to find its role an increasingly complex and difficult one and often it would be best advised to avoid undertaking such a role.
In this case, the primary objective of the Shire seems to be to ensure that no one person can, in effect, have control of all 48 camels that might be on Cable Beach in camel tours at the one time (that is to say, three approved camel tours with up to a maximum of 16 camels in each). The background to this particular policy approach of the Shire is that there was much consternation in Broome when the Shire initially sought tenders for the three licences and, in the result, granted all three licences to the highest tenderer - Red Sun Camels. That was the decision set aside on legal grounds by the Tribunal in Bird and Shire of Broome.
As a result, the Council of the Shire have had the opportunity to reconsider the tenets of the policy that they want in place. The Shire have made it quite clear, through the policy adopted on 14 February 2008, that they do not believe that, in effect, all three licences should go to one person. The intention is that up to three people should each have the opportunity to run a camel tour business under a licence.
In all of the circumstances, it seems to the Tribunal that this is not an unreasonable approach to the resolution of what criteria should be relevant to the grant of the three licences. While the Tribunal could conceivably come to a different view and say that, as noted above, a single operator of three camel tours could provide a good service and do so safely, and the like, the Council of the Shire has adjudged the situation differently. The Tribunal can see why the Council of the Shire has come to that view. It wants to ensure, as it has stated in its policy, a diverse economic base from which all members of the local community may benefit. In the circumstances, it seems to the Tribunal that the correct and preferable decision is that there should be three separate licences granted to ensure that the maximum number of people in the Shire of Broome who want to be engaged in the business of providing camel tours have the opportunity to apply for and be granted a licence. The Shire, to that extent, has reasonably set itself against the notion that there should be just one or perhaps two operators of camel tours on Cable Beach.
In these circumstances, the Tribunal considers it should support the approach taken by the Shire in this regard. Accordingly, the Tribunal finds that, presently, the correct and preferable decision to be one that supports the grant of three separate trading licences to support camel tours on Cable Beach.
That being the case, it seems to follow, as a simple matter of logic, that, once granted, the trading licences should not be transferrable except upon application where the same criteria set out in the Shire's policy are met. That is currently provided for in the policy and the conditions imposed on licences.
It also seems to follow that the requirement for separate licences, and the rationale behind that decision, should not easily be circumvented by the holders of separate licences in effect folding their businesses one into the other, so that they are no longer in substance separate. However, having said that, it is not an entirely easy thing to say that operators under separate licences cannot and should not be able to agree to cooperate in various respects in the running of their business. Why two operators should not share a booking business, should not share staff, and the like, is not immediately obvious to the Tribunal. It does not necessarily mean they are not independent of each other.
Where, however, the overall assessment of two allegedly independent operations is such that they are, for all intents and purposes, the same operation, then one may seriously question whether there is independence and, as a consequence, whether there are two separate operations each supported by a separate licence, or just one operation. The general degree of cooperation in respect of booking and staff may be one thing, but if the two allegedly separate operations actually agree a pricing structure or have an agreement or understanding in this regard, then one would begin to question whether there really are two separate and distinct operations or just one.
The overall impression the Tribunal is left with, having regard to the background circumstances in which Mr Hill and Mr Geappen came to their current arrangements, and the expression of the arrangements both by Mr Hill and Mr Geappen in evidence at the Tribunal hearing, is that for all intents and purposes the operations are very closely intermingled at the moment and, to a large extent, are not operating independently of each other. The fact ultimately that the two camel teams sit down very close by to each other, just north of the rocks on Cable Beach North, albeit that Ships of the Desert has a different livery to that used by Red Sun Camels, rather invites the view that there is but one and not two separate operations.
The further question, of course, is whether having the camel tours of Red Sun Camels and Ships of the Desert sitting down alongside each other is a practice designed to secure the orderly and proper management of Cable Beach North in that area. This is an additional issue to which I will now turn.
The set-down condition
As noted earlier, the Shire has imposed, as a condition to each trading licence, a condition that:
the operator is to ensure that camels only wait and rest and customers are only picked up from and set down at the set‑down area identified as Area … in Attachment 1 to this licence.
Each of the three licence holders has been designated a separate setdown area.
As noted earlier, the first set‑down area immediately to the north of the rocks is allocated to Red Sun Camels. The next, to the north of the Red Sun Camels allocated area, is allocated to Broome Camel Safaris. In front of Broome Camel Safaris to the north is the area allocated to Ships of the Desert.
The result is, if these conditions are complied with, that at the time the sunset tours commence, when all tours are on the beach, there is the potential for three trains of camels, each of 16 camels, to be lined up in a long line, albeit with appropriate distances of about 30 metres between each of the trains. As noted earlier, Mr Hill of Ships of the Desert says that this would mean he has to have his camel train located at some distance from the rocks and consequently some distance from where customers usually enter by foot onto Cable Beach. The point is made by both Mr Hill and Mr Geappen that the customer base is increasingly elderly and unfit and they would have to find their way, walking through soft sand, to the most northerly point at which Ships of the Desert would be based.
Obviously, and no one doubts this, it would be much more convenient for Mr Hill if he could set down his camels near to the rocks and alongside Mr Geappen's Red Sun Camels. (So too it would be too for Ms Bird's Broome Camel Safaris if it were offered the opportunity).
In this respect the questions raised by this condition and the objections to it are:
•Safety and beach management issues; and
•'Fairness' issues, put in a general way, in that Ms Bird for Broome Camel Safaris says that if Mr Hill and Mr Geappen can set down their respective camel trains immediately north of the rocks area and adjacent to a mobile 'shop' that they use, the impression can be created that it is only their tours that are available and customers effectively cannot or will not see her camel tour a little further to the north of them.
Leaving aside the 'fairness' issue raised by Ms Bird, the primary question is whether it is appropriate from a safety and beach management point of view to have Ships of the Desert setting down in an area adjacent to where Red Sun Camels set down.
The primary position of the operators has been set out in their position statements quoted above. In short, Mr Hill and Mr Geappen say that they have been setting down alongside each other now since about September and there have been no safety issues. Ms Bird says that problems can arise when camels are in close proximity. The answer to that, say Mr Hill and Mr Geappen, is in the proper management of camels, and Mr Hill says he is particularly expertly trained in their handling.
The Tribunal took a view of the area where the camel tours set down leading up to the sunset tours on the evening immediately before the Tribunal hearing in Broome. There were some small issues in the course of the viewing in that a large number of tourists from a cruise ship that had berthed at Broome port were late in arriving. Nonetheless, the Tribunal saw the three camel trains set down, saw customers dismounting the camels and also saw customers mounting the camels. The point was made in evidence that, in practise, ordinarily the three tours set off on their sunset walks at staggered times so that they are not always in close proximity to each other.
The area in which Red Sun Camels and Ships of the Desert have been setting down for the last little while, and where it is proposed by them that they should be able to set down for the duration of the term of the licences is, as noted, immediately north of the rocks area. It is nearby to the main track between the rocks and along the sandy beach that most vehicles follow in travelling out onto Cable Beach North to enjoy the beach, the sunset and the like. It is also the track that other beach users follow or people tend to walk along if walking in that direction along the beach or to reach the camel tour set-down areas.
Accordingly, there is, generally speaking, as noted in the Tribunal's earlier decision in Madden and Shire of Broome, competing uses and management issues, such as:
•During the day nude bathers using the beach;
•People accessing the Cable Beach North area in four-wheel drives;
•Persons walking along the beach and particularly the usual vehicle track to access the Cable Beach North area;
•All manner of people including children enjoying that access; and
•Some camel tours in the morning and three camel tours arriving for the sunset ride.
The Tribunal received photographic and other direct evidence from council officers involved in the beach management including Mr Timothy Trew, beach inspector with the Shire of Broome, about how close on occasions the camels from Red Sun Camels and Ships of the Desert get to the vehicle access track and to each other.
The Shire also called Arthur John Snook who is a Team Leader - Beach Services with City of Stirling to give evidence about these beach management issues. Mr Snook had earlier given evidence in the proceedings between Madden and Shire of Broome and so had some prior familiarity with the area and the general nature of the issues raised.
Mr Snook considered a number of the arguments that had been put forward and expressed his view about them, as follows.
•Three camel businesses on the beach at the same time creates a lot of confusion for the customer: As to this point Mr Snook said there is no doubt that the capacity for confusion on the beach exists with three operators conducting business at the same time - especially at sunset. Implementing a specific set-down point, which should be clearly advertised when tickets are sold and should be included on the ticket, would to a considerable degree lessen this confusion. He also thought permanent signage would help to identify the pick-up and set-down points. He also supported the adoption of clearly distinct blankets for each camel tour operator, which is in fact happening.
•An aging and unfit population: As to this Mr Snook suggested that observations indicate that the majority of people participating on these rides are not elderly, rather are mature and middle-aged or younger, including families and children. Whilst some older people did participate they were in the minority. The Tribunal might interpolate to say that at the view it took it came to a similar view to that expressed by Mr Snook. Mr Snook said it has been noted that participants may arrive on the beach by either a tourist bus or in a private four-wheel drive vehicle ensuring that there is only a minimal distance for people to walk, and so not all customers walk from near the Sunset Bar onto the beach, past the rocks and onto the set-down areas.
•Encroachment of camels onto space 'staked out' by long-term visitors to the beach: Mr Snook noted that Broome and Cable Beach has long been a mecca for tourists and many do return year after year. He says while some may try to occupy a similar area to one they had enjoyed before they do not 'own' the space and as such have no real claim to it. He therefore considered that this was not a primary difficulty preventing Ships of the Desert putting down in the more northerly designated set-down area.
•A perceived increase in pedestrian traffic along the beach if customers are forced to walk along the beach: Mr Snook suggested that with the implementation of specific and separate set-down spots there may be cause for people to walk further along the beach, but this does not translate to an actual increase in the number of people walking along the beach. Cable Beach North is extremely popular but all beach users including pedestrians and vehicle owners are used to groups of people walking along the beach and each watches out for the other.
•The camels used in both the trains of Red Sun Camels and Ships of the Desert have spent a lot of time together and are used to each other's presence: Mr Snook says that whilst he wasn't an expert in camel management, the camels of both operators may be comfortable with each other but when faced with the possibility that on occasions there may be up to 128 people milling around 32 camels in a relatively small and confined area (that is 16 camels in each of those two tours, with two persons on each, including the people who were just leaving one tour and the people who were arriving for the next) there is an increased opportunity for an incident to occur. He suggested that the most docile of animals might become 'quite spooked' with a large number of people particularly children walking and running around amongst the camels, and this would occur.
•An increased demand for operators to work together to fulfil large group requirements: Mr Snook said operators should be aware that they have only 16 camels available to them when accepting group bookings. This enables them at best to cater for up to 32 customers at any one time, but only if customers are willing to share a camel and the weight limits are met. Should a large group wish to make a booking it is up to the operator concerned to advise the group of the restrictions and recommend another operator to assist them. He said whilst it may be preferable for the operators, asking the set-down points to be near each other, it is not essential as the distance between the operators is not excessive. It would be necessary for them to take bookings and ensure customers know where the relevant set‑down points are.
In summary, Mr Snook said that set-down point C - closest to the rocks - which is currently designated under the licence conditions of the Shire to Red Sun Camels, is at its maximum capacity for camel trains with one operator setting down in a single line, particularly when the tour coincides with a high tide. With two operators setting down camel trains in parallel, there is significantly less room for operators to set down and still maintain adequate room to cater for vehicle and pedestrian traffic at this point. With specific set‑down points along the beach this potential hazard is reduced.
As noted earlier in relation to the position of each of the current tour operators there was a divergence of opinion as to what management difficulties camels could present.
The differences in views really boil down on all of the evidence to the points already made. On the one hand Mr Hill, who on Mr Geappen's admission is much more experienced with camels than he is, considers that there is no practical problem with having the two camel trains nearby to each other. The system works well. Each camel train is staggered to leave at sunset one before the other. There has been no practical difficulty in the operation since it was put in place some months before the end of 2007. He says that good handling practices ensure there is no difficulty.
Ms Bird on behalf of her Broome Camel Safaris raises the two issues mentioned earlier, namely, that having the camels in close proximity to each other may create a problem and good management suggests that there needs to be greater distance between the three camel tours. Additionally, she says that it is in general terms not fair that the other two licence holders should be able to set up alongside each other in the way that they have been doing and now propose, as it tends to overshadow or screen out the existence of her tour. She also relies on the fact that there is meant to be two independent operators and by allowing the two other camel trains to sit down alongside each other the independence condition will not be complied with.
Following the Tribunal hearing on 2 July 2008, the Tribunal re-opened the hearing and heard further from the parties and their representatives on 19 August 2008. At that time, the Shire put in to evidence a resolution of the Council dated 24 July 2008 and documents relating to that resolution. This information concerns the possible future restriction on the use of vehicles on Cable Beach and has the potential to bear on the beach management issues the subject of these proceedings. It transpired that the Shire had been considering a report concerning motor vehicle management on Cable Beach for a number of years, although this seems not to have been brought to the attention of the Shire's solicitors for the purposes of the earlier hearing.
In any event, the information now before the Tribunal is as follows. At various times it seems from about September 2005, the Council of the Shire has been considering motor vehicle management on Cable Beach in order to reflect the environmental and cultural heritage values, the social and economic benefits to the community, and public safety issues concerning the use of vehicles on Cable Beach.
On 24 July 2008, a report from the Cable Beach Management Advisory Committee was considered by the Council. The report canvassed the history of concern and the competing issues. The report noted that beach drivers are only one category of beach users and whilst the social amenity may be diminished if they are prevented from using their vehicles to access the beach, the social enjoyment of other beach users may be enhanced.
The report also noted that in considering all of the various issues it was important to acknowledge that the future of the Broome tourism industry is dependent upon the protection of the 'Broome brand'. It was further noted that Cable Beach is an integral part of this 'brand' and is very important for the future of the industry. In particular it is the natural beauty of the beach and its cultural heritage that attracts tourists.
To explore the links between vehicle impacts on Cable Beach and vehicle management the committee considered three levels of vehicle management and control:
•Level 1 management measures - increasing management resources on the beach and thereby ensuring a high level of compliance with speed limits, intrusions into restricted areas and monitoring of the behaviour of drivers.
•Level 2 management measures - which would include all level 1 measures with increased controls that either directly or indirectly restrict numbers of vehicles accessing Cable Beach.
•Level 3 management measures - this would phase in the prohibition of all private vehicles accessing Cable Beach. There would continue to be an exemption for vehicles at Ganteaume Point (GP) being used to launch boats and for tour guide operators to deliver passengers and supplies to boats moored at GP. However, all people launching or delivering goods or people to boats would be required to park their vehicles and trailers off of the beach. This area does not, however, affect Cable Beach North.
The report noted some implementation concerns that would arise under the level 3 measures, including the potential for further vehicle intrusions to the north of Cable Beach and impact on the Roebuck Bay area by increased vehicle numbers accessing beaches from Crab Creek Road.
The Committee report also recognised that decisions relating to the management of vehicles on Cable Beach cannot be considered in isolation from the funding implication of any such decision, particularly in relation to infrastructure and operating costs. Accordingly, the development of motor vehicle management plans must be complemented by capital works budgets and information detailing the impacts on Shire operating costs.
In relation to the level 3 management measures the committee report noted that very few vehicles would be permitted on Cable Beach under this option and the operational funding burden carried by the Shire would have the potential to be substantially reduced on an ongoing basis. However, it should be noted that costs in other areas, such as annual maintenance expenses, new car parks, walkways and ablution facilities would increase.
The committee report also noted that if level 3 management measures were adopted substantial capital works program for car parking facilities between Cable Beach reserve and Ganteaume Point would be required. The timing for implementation of this program would depend on the time frame adopted at the introduction of the policy of vehicle prohibition on Cable Beach. The report then noted vehicle car parking options. The report noted that in summary in the short time these infrastructure requirements are likely to involve a capital works program costing up to $1.5 million.
In relation to aboriginal heritage matters the information before the Council included advice that there are a number of important aboriginal sites on Cable Beach several of which were registered many years ago for protection under the Aboriginal Heritage Act 1972 (WA). Traditional owners represented by Rubibi Aboriginal Corporation were noted by the report to be 'adamantly opposed to any vehicles driving on Cable Beach'. The Goolarabooloo Aboriginal Corporation also considers that people driving vehicles on Cable Beach North are in contravention of the Act with respect to one particular aboriginal site.
The information further noted that native title negotiations between the State government and Rubibi commenced in 1994. The Rubibi combined native title claim covers the Broome town site and an extended area around Broome and Roebuck Bay. It includes the coastal waters and the intertidal zone between the high water mark and the lower astronomical tide. This means Cable Beach is included in the claim area. Following a native title determination on 28 April 2006, which has been the subject of an appeal, all parties expect a successful mediated outcome in coming months. All this will be relevant to management practices for Cable Beach including vehicle access. The native title determination made to this point, however, recognises native title over much of the claim area. In relation to the Cable Beach area the determination was that:
•Native title does not exist over that area of Cable Beach below the high water mark from Ganteaume Point to Station Hill which is approximately 550 metres north of the vehicle assess ramp at Cable Beach reserve.
•Tidal native title exists on Cable Beach between the low and high water marks from Station Hill to Willie Creek. Tidal native title confers a bundle of rights including but not limited to rights of access and usage, rights to hunt and gather, the rights to maintain and protect places of spiritual significance. These rights are 'non-exclusive' which means that there is no right to exclude access for use of the area by other interests. However, native title holders have specified rights to be consulted and to negotiate on land use in these areas.
•Non-exclusive native title covers most of Minyirr Park.
•Exclusive native title exists above the high water mark from the northern boundary of Cable Beach eastward to Lullfitz Drive and northward out to Buckleys Plain to the Coconut Well subdivision and beyond. Exclusive native title also exists between the high water mark and Cable Beach Road north from approximately the round about at Gubinge Road to the reserve near the surf club.
In the light of all this information on 24 July 2008, the Council resolved as follows:
That Council:
(1)Acknowledges that Cable Beach is iconic and internationally renowned with a range of significant values that must be protected. These values include environmental, heritage, economic and social values.
(2)Acknowledges that the growth in numbers of vehicles being driven on the beach as identified in the report from Cable Beach Motor Vehicle Management Advisory Committee is one of the biggest threats to he values of the beach and the Broome lifestyle.
(3)Requests the Chief Executive Officer to engage Rubibi and Council in an exploration of a fully costed strategy that will protect the access to and the values of Cable Beach and the Broome lifestyle, with sufficient infrastructure so that people have easy access to the beach without the need to drive on it.
(4)Requests the Chief Executive Officer to engage Rubibi to explore all possible funding opportunities to fund any strategy developed to provide the beach access required so that people no longer need to drive on it.
(5)Determines that Cable Beach should be vehicle free and restricts vehicles from the beach when the necessary infrastructure enabling effective access has been developed.
This resolution of the Council is an extremely important one for the future of the tourist industry in Broome and in particular the management of Cable Beach.
The Tribunal notes and accepts the resolution.
The resolution of the Council has important implications for the future management of uses such as the camel tours on the beach.
However, it is important to note from the terms of the resolution and the substance of the report before Council on 24 July 2008, that much work needs to be done before vehicles will actually be prohibited under the level 3 management option on Cable Beach North.
In the long run, however, the adoption of the Council's resolution of 24 July 2008 will affect the way uses such as the camel tours are operated on the beach.
However, for the immediate future, the Tribunal must determine the issues before it on the evidence currently before the Tribunal. Should the position change anytime in the future it seems that the Council has the capacity to vary conditions imposed on the current licence holders. Under cl 2.4.4 of the Local Law, the local government may vary the terms or conditions of a licence and the licensee shall comply with those terms and conditions as varied on and from the date of notification of the variation. Clause 2.9 notes that when the local government makes a decision as to whether it will vary a licence the provisions of Div 1 of Pt 9 of the Act apply. Thus it would be open to the applicants to apply during the course of the licence period to the Shire to vary the condition relating to set-down areas if they show good cause. If the Council did not agree to a variation pursuant to cl 2.9, the Shire acknowledges the applicant would clearly have a right to review to the Tribunal.
In these circumstances, the Tribunal must assess the circumstances of the case according to the current legal and factual situation. If however, circumstances change in the future and, in particular, the Shire introduces the level 3 management controls as suggested in its recent resolution, then no doubt the Council and the current operators should endeavour to resolve the beach management issues concerning the camel tours. In the Tribunal's view there would clearly be a good case for reviewing the set-down arrangements if motor vehicles were excluded from Cable Beach North.
The Tribunal, on the basis of all the evidence, and in particular by reference to Mr Snook's evidence, currently considers that good, precautionary beach management practices require an appropriate separation of the three camel trains. The initial proposal, which is the subject of the relevant conditions of the Shire, is that the set-down areas should be designated more or less in a line. In this way the camel trains are kept at an appropriate distance from the track used by pedestrians and vehicles entering and leaving Cable Beach North area through the rocks, and from each other.
While it may be that Red Sun Camels and Ships of the Desert are, for much of the time, able in a practical sense to carry out their tour duties without running into any conflict, and while it undoubtedly serves the business ends of the two operators concerned - because they are sharing bookings and the like - those considerations at this stage should not be permitted to drive the question of what is best in terms of good beach management.
Having seen the set-down Area C where Red Sun Camels is designated to set down, and having seen the two camel trains come along and set down and customers dismount and new customers mount, and accepting there is no 'scientifically' correct and preferable answer to the question, the Tribunal considers on balance that the correct and, in this case, preferable answer to the beach management issue is that more separation is required than that which the two applicant operators have allowed to date in order to ensure public safety and camel tour participants' safety, at this time.
The Tribunal considers that it is correct and preferable that the three camel trains should set down at an appropriate distance from where most vehicles and pedestrians are likely to be, that is, at an appropriate distance from the vehicle track. To that end, the designated set-down areas on each of the three licences is the correct and preferable outcome.
While some evidence has been given to the Tribunal that nude bathers who sometimes use the beach to the north have reacted abusively when they consider their space has been invaded by a camel train setting down, the Tribunal considers this to be a beach management issue that officers such as the beach inspector at the Shire will need appropriately to deal with. Signage can help to resolve this issue in the long run, but mainly the familiarity of beachgoers with camel trains setting down, particularly at regular times of the day and evening, will help resolve this potential issue.
In the Tribunal's view therefore it is inappropriate for the Ships of the Desert to have the right to set down in Area C alongside Red Sun Camels. The correct and preferable decision is, in terms of good, precautionary beach management practice, is that they should set down where currently designated by the Shire in the relevant conditions.
It is also reasonable, having regard to the history of the establishment of these three businesses that Broome Camel Safaris be entitled to remain in the middle position and that Red Sun Camels be entitled to remain in the position closest to the rocks. While Ships of the Desert may have a long history in the camel industry its use of the set-down area or areas in the vicinity of the rocks is of more recent standing.
It is therefore, having regard to the history of the matter and all of the facts and circumstances, appropriate to maintain the set-down arrangements specified by the Shire in the conditions attached to the three licences. That is the correct and preferable decision. Accordingly, the Tribunal supports the decision made by the Shire in that regard.
The condition concerning the camel train route for Ships of the Desert
At the commencement of the hearing, while this condition affecting the Ships of the Desert was raised as an issue, it appeared that the parties considered that the issue could easily be resolved. At the further hearing on 19 August 2008, there was further discussion concerning this condition.
Having heard from Counsel for the parties, it was apparent that there is some concern about the entitlement of Ships of the Desert to stable their camels on their land currently used for the stabling of camels by Red Sun Camels. That issue of 'independence' is not raised for the Tribunal in these proceedings. The question raised is simply one concerning the route to be taken by the Ships of the Desert camel train on its way to Cable Beach. About this, the parties were substantially in agreement.
In the light of the submissions of the parties, Tribunal would order that the condition (vii) be replaced with a condition expressed in the following terms:
(vii)The operator is to only to access the area of application (Cable Beach) via the approved route from the approved place of stabling camels (see attachment 1), provided however that if and so long as the operator has agreement from Red Sun Camels to walk the operator's camels from the operator's stabling area through lot 302 then the operator can utilise the same route as identified in attachment 1 to this licence.
Conclusion
The primary matters in issue are in the end capable of being resolved on beach management terms.
While the Tribunal has made certain observations in respect of the independence condition, and would not remove that condition, the Tribunal does not, in the end, need finally to resolve whether or not there is or is likely to be any breach of that condition by the existing arrangements between Red Sun Camels and Ships of the Desert. These arrangements to some extent will change in any event as a result of the setdown requirements clarified by this decision. The Tribunal nonetheless has made a number of observations about what independence might mean.
To sum up these observations, on the face of it there seems no reason why operators cannot remain independent and at the same time do things like have a shared booking system, share staff, share stabling facilities, even share some approved 'shop' on the beach for the purposes of selling wares or processing photographs and the like. The test for whether or not each operator remains 'independent' will, in the end, be resolved by reference, not to a mechanical application of criteria suggesting or rejecting independence, but by having due regard to such criteria and forming an overall impression as to what the state of that business is - independent or not. An example of such an approach is the approach adopted by courts in determining whether a person is an employee or an independent contractor; see Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939; Mortgage Force Service Pty Ltd and Commissioner of State Revenue [2007] WASAT 53 and the cases cited there. If the operators were actually setting their fees together and in other respects so pooling their resources and intermingling their businesses that they were effectively the one and the same business - albeit that they used different colour blankets on their camels and the like - one might well form the view that the independence condition was being breached.
As noted earlier, the Tribunal believes that the independence condition can be supported and that, on a correct and preferable view, it is a reasonable condition in the current circumstances in Broome, especially having regard to the background of the existing licensing arrangements. The fact that it has the support of the elected representatives of the people of the district of Broome on the Council of the Shire is not an insignificant factor in that regard.
Nonetheless, it is not necessary for the Tribunal to finally rule on whether the independence condition is being complied with in order to determine this case. The fact is that, taking a precautionary approach to beach management whereby one does not wait for a problem to arise before accepting that a particular proposed arrangement is not optimal, leads the Tribunal to refuse the review application on this occasion on beach management grounds.
The Tribunal, however, has made it clear in its earlier comments that if and when the Shire implements its resolution of 24 July 2008, with a view to severely restricting the access of private motor vehicles on Cable Beach, especially on Cable Beach North, then the question of what good each management practices require in relation to the setting down of the camel tours will need to be considered afresh. At that time the Tribunal expects that the representatives of the Shire and the operators will sensibly meet and discuss these issues and agree a convenient and practical solution that suits all parties and serves to promote this popular tourist facility in Broome. When that happens it will be open to the operators to apply to the Shire for variation of the existing licence and open to the Shire to vary the licence conditions accordingly. As the Shire's representative acknowledges in these proceedings, should any of the operators be aggrieved by the Council's decision-making at that time, they will have the option of seeking further review in the Tribunal.
Order
For the reasons given above, the Tribunal orders as follows:
1.Save as provided in Order 3, the review application is dismissed.
2.The decision of the Shire to impose the conditions concerning the independence and set‑down areas on each of the three licences, particularly those granted to Red Sun Camels Pty Ltd and Ships of the Desert are appropriate and those decisions are affirmed.
3. Condition (vii) of the licence granted to Ships of the Desert is revoked and replaced with a condition in the following terms:
(vii)The operator is to only to access the area of application (Cable Beach) via the approved route from the approved place of stabling camels (see attachment 1) provided however that if and so long as the operator has agreement from Red Sun Camels to walk the operator's camels from the operator's stabling area through lot 302 then the operator can utilise the same route as identified in attachment 1 to this licence.
4.There will be no order as to costs.
I certify that this and the preceding [118] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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