SHELTON and SHIRE OF WAROONA - [2021] WASAT 99

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   SHELTON and SHIRE OF WAROONA [2021] WASAT 99
MEMBER:   MS P LE MIERE, MEMBER
HEARD:   14 MAY 2021
DELIVERED          :   2 AUGUST 2021
FILE NO/S:   DR 39 of 2021
BETWEEN:   STEPHEN JOHN SHELTON
Applicant
AND
SHIRE OF WAROONA
Respondent

Catchwords:

Local Government - Preliminary issue - Regulations 6 and 9 - Powers to authorise installation of gate

Legislation:

Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 6, reg 6(2), reg 6(3)(b), reg 6(4)(a), reg 9, reg 9(1)
Local Government Act 1995 (WA), s 1.4, s 3.1, s 3.1(3), s 3.21, s 3.52, Pt 3

Result:

Preliminary questions answered in the affirmative

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr T Beckett

Solicitors:

Applicant	:	N/A
Respondent	:	McLeods

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

Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106
Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is a review of a decision by the respondent, the Shire of Waroona (Shire) refusing permission to the applicant, Mr Stephen John Shelton to maintain two gates on a public thoroughfare within his property at 851 Nanga Brook Road, Waroona (851 Nanga Brook Road) The thoroughfare provides access to his property and that of a neighbour at 855 Nanga Brook Road, Waroona (855 Nanga Brook Road). There is alternative access to both properties.
The Shire accepts the gates have been located on the thoroughfare for many years. Mr Shelton sought registration of the gates due to his neighbour now refusing to close the gates. Mr Shelton alleges the security and safety of his family are affected by the gates being left open as one of the gates is within 20 metres of his home.

Issue

I need to decide as preliminary issues whether the Shire has the power or authority to grant approval to Mr Shelton to maintain the two gates.
The agreed questions are:
1)Does reg 9(1) of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) (Regulations) allow a local government to grant permission for a person to have a gate across a public thoroughfare if a purpose of the gate is not to prevent livestock from straying?
2)In the alternative does reg 6(2) of the Regulations allow a local government to grant permission for a person to place a gate on a public thoroughfare, where the gate would not be capable of approval under reg 9(1) of the Regulations?

Legislative provisions

Regulation 9(1) provides:
A person may apply to the local government for permission to have across a public thoroughfare under the control or management of the local government a gate or other device that enables motor traffic to pass across the public thoroughfare and prevents livestock from straying.
Regulation 6(2) provides:
A person may apply to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SHELTON and SHIRE OF WAROONA

Details

AGLC: SHELTON and SHIRE OF WAROONA [2021] WASAT 99
Case: [2021] WASAT 99
Decision Date

CaseChat Overview and Summary

The case involves a dispute between Mr. Stephen John Shelton and the Shire of Waroona, concerning the installation and maintenance of two gates on a public thoroughfare in Waroona. The applicant, Mr. Shelton, sought approval from the respondent, the Shire, to maintain the gates on a public road that provides access to his and his neighbor's properties. The Shire had previously refused Shelton's application for the registration of the gates, prompting the applicant to seek judicial review of the decision. The court was tasked with determining whether the Shire had the power or authority to grant approval for the installation of the gates, specifically addressing two preliminary issues related to the interpretation of certain regulations.

The central legal issues before the court were whether Regulation 9(1) of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) allowed a local government to grant permission for a person to maintain a gate across a public thoroughfare if the primary purpose of the gate was not to prevent livestock from straying, and whether Regulation 6(2) of the Regulations allowed a local government to grant permission for a person to place a gate on a public thoroughfare if the gate could not be approved under Regulation 9(1). The court examined the legislative provisions, the context, and the purpose of the relevant statutes and regulations to interpret these provisions.

In its reasoning, the court found that Regulation 9(1) of the Regulations allowed a local government to grant permission for a gate across a public thoroughfare if the gate met the criteria of enabling motor traffic to pass and preventing livestock from straying. The court did not find that the regulation required the gate's sole purpose to be the prevention of livestock straying. Moreover, the court held that Regulation 6(2) of the Regulations allowed a local government to grant permission for a person to place a gate on a public thoroughfare, even if the gate could not be approved under Regulation 9(1), provided the gate was considered a temporary obstruction. The court emphasised the importance of interpreting regulations in a manner that allows for flexibility and discretion in managing local thoroughfares, in line with the general functions and powers of local governments under the Local Government Act 1995 (WA).

In conclusion, the court answered the preliminary questions in the affirmative, ruling that the Shire had the power to grant permission for the installation of the gates under certain circumstances. The court ordered that the preliminary issues be answered accordingly and scheduled a directions hearing to proceed with the case.

Orders