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 local government for permission to place on a specified part of the public thoroughfare one or more specified things that may obstruct the public thoroughfare.

Facts

The following facts were uncontested and I find:
a)the gates have been located across this thoroughfare which is an unnamed track for many years;
b)the thoroughfare receives a low volume of traffic and primarily serves the function of providing access to the properties at 853 Nanga Brook Road and 855 Nanga Brook Road;
c)the gates are not considered to interfere or adversely affect the use of the thoroughfare by the Shire;
d)the owner of the property at 853 Nanga Brook Road does not object to the presence of the gates across the thoroughfare;
e)the owner of the property at 855 Nanga Brook Road does object to the gates across the thoroughfare; and
f)Mr Shelton does not allege there is any current livestock on his property that need to be prevented from straying.
There were a number of other facts advanced by Mr Shelton and not conceded by the Shire for which I make no findings as they are not relevant to the issue that I need to determine.

The Shire's submissions

Regulation 9(1) of the Regulations

The Shire submits that it is only able to grant permission for a gate or other device to be placed across a thoroughfare where the gate or other device satisfies the following criteria:
a)enables motor traffic to pass through the public thoroughfare; and
b)prevents livestock from straying.
Regulation 9 of the Regulations appears to address prospective applications for gates which were proposed to be erected rather than retrospective application to allow existing unapproved gates to be permitted to remain in place. The Shire does not contend that reg 9 of the Regulations cannot be applied to existing gates.
In general terms a public thoroughfare under the care control and management of the local authority would be expected to be kept open and free from any obstruction which would prevent its intended use.
Accordingly, any legislative basis for allowing a public thoroughfare to be obstructed should be read strictly, as the interference with the use for public thoroughfare should not be permitted except in the most exceptional circumstances.
The Local Government Act 1995 (WA) (LG Act) establishes a general duty to ensure the lawful use of land or premises as well as thoroughfares are not obstructed.

Regulation 6 of the Regulations

Regulation 6 of the Regulations has a broader scope than reg 9 of the Regulations, however as reg 9 refers specifically to gates then it is pursuant to reg 9 that permission for a gate should be sought.
Given that regulation 9 specifically addresses the circumstances in which gates can be permitted to be placed across a public thoroughfare, it is appropriate for the local governments to assess an application to erect gates across a public thoroughfare against the specific provisions of regulation 9, rather than the more general provisions of regulation 6.
…
On that basis the Shire contends that permission for the erection of gates across public thoroughfare should only be granted where it is consistent with the application of regulation 9, which contain provisions which are specifically adapted to relate to gates obstructing thoroughfares.

Applicant's submissions

Regulation 9 of the Regulations

Mr Shelton submits that reg 9(1) of the Regulations should not be read strictly. The regulation should not be read to only apply to new gates to be constructed where there is livestock already in place that needs to be prevented from straying.
It is reasonable that reg 9 of the Regulations be interpreted to allow for gates to be installed where there will be livestock that will need to be prevented from straying.
The Shire has not controlled or managed the thoroughfare in question at any time.

Regulation 6 of the Regulations

Should the Tribunal find that reg 9 of the Regulations does not allow for the registration of the gates then reg 6 of the Regulations allows for the registration of the gates.
Flexibility should be allowed in the interpretation of reg 9 and reg 6 of the Regulations to provide the Shire with a more contemporary approach to be able to consider a broader set of issues that may affect thoroughfares and the properties they traverse.

Consideration

As I am only considering the interpretation of reg 6 and reg 9 whether the thoroughfare in question is under the control and management of the Shire is not required to be considered.
If I were considering the merits of this application, then I would need to consider if it was a thoroughfare over which the Shire had control or management as otherwise it would not be able to grant registration under reg 9(1) of the Regulations.
The meaning given to the Regulations is to be approached in accordance with the general principles and primary objects of statutory construction that is to:
a)construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute;
b)begin with the text itself with regard to its context and purpose;
c)consider the context within the immediate provision(s); and
d)consider the whole of an act from the beginning of the task.[1]
[1] Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 (Thayli) at [29].
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
However, in construing a legislative provision I should not have regard to any assumptions about the desired operation of the relevant provisions.[2]
[2] Thayli at [31] and [33].
'Public thoroughfare' is not defined in the Regulations or the LG Act. 'Thoroughfare' is defined as:
[T]horoughfare means a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end.[3]
[3] Section 1.4 of the LG Act.
The Oxford Dictionary defines 'public thoroughfare' as: 'Open to or shared by all people of an area or country'.
Accordingly, a public thoroughfare is a path or road shared by all people in the area (or country). It is reasonable to read reg 9(1) of the Regulations to refer to roads rather than paths given the reference to the passage of motor vehicles.
Regulation 9(1) of the Regulations refers to 'a gate or other device'. A 'cattle grate' is the most obvious other device that is commonly used on major roads to prevent livestock crossing from one paddock or area to another but still allowing 'motor vehicles to pass'.
Given the use of 'and' which is a conjunctive word I accept the Shire's submission and find that reg 9(1) of the Regulation only allows for permission to be granted by the Shire where the gate or other device satisfies the following criteria:
a)enables motor traffic to pass through the public thoroughfare; and
b)prevents livestock from straying.
That is, a gate for which permission may be granted pursuant to reg 9 of the Regulations has to do two things. It has to both allow for motor traffic to pass and in addition prevent the straying of livestock. A gate that allows traffic to pass but because of its construction allows livestock to pass is not one for which permission pursuant to reg 9(1) of the Regulations can be granted.
The Shire in its submissions equates the requirement for a gate to allow for the passage of motor vehicles and prevent the straying of livestock to being the same as meaning the gate has to be for the purpose of and by inference, the sole purpose of preventing the straying of livestock.
In following the principles of statutory construction, I must look for meaning in the text itself and have regard to the context in which it appears. I should not make assumptions about the desired operation of the relevant provisions.[4]
[4] Thayli at [31] and [33].
Regulation 9 of the Regulations is made pursuant to subdivision 5 of the LG Act - Certain provisions about thoroughfares.
I accept that it is implicit in reg 9(1) of the Regulations that it allows for gates and other devices to be placed on public thoroughfares to prevent the straying of livestock.
I can find nothing in the Regulations or the LG Act that suggest the legislature intended that permission could only be granted for the sole purpose of preventing the straying of livestock.
Part 3 of the LG Act regulates the functions of local government. The general functions of local government are set out in s 3.1 of the LG Act. It states:
General function
(1)The general function of a local government is to provide for the good government of persons in its district.
(2)The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.
(3)A liberal approach is to be taken to the construction of the scope of the general function of a local government. (my emphasis)
In its submissions, the Shire refers to s 3.21 of the LG Act as establishing a general duty to ensure thoroughfares are not obstructed. When one looks at this section it appears it's purpose is to address the need to ensure the actions of the local authority do not affect or obstruct land or property belonging to the general public.
Section 3.21 reads:
(1)In performing its executive functions, a local government, so far as is reasonable and practicable, is to -
(a)ensure that -
(i)the lawful use of any land, thoroughfare or premises is not obstructed, and any reasonable request that a person makes to avoid such obstruction is met; and
(ii)as little harm or inconvenience is caused and as little damage is done as is possible; and
(iii)danger to any person or property does not arise from anything done on land; and
(iv)anything belonging to it, or to a person who has exercised a power of entry on its behalf, that has been left on any land, premises or thing entered is removed as soon as practicable unless this Act expressly allows it to be left there;
and
(b)ensure that -
(i)buildings, fences, and other structures are not disturbed nor damaged; and
(ii)when it enters land that is fenced, it enters through the existing and usual openings in the fence unless it is expressly authorised to open the fence; and
(iii)any physical damage done to any land, premises or thing, is immediately made good unless compensation has been or is to be paid.
(2)Subsection (1)(b) does not apply to any land, premises or thing that is local government property.
The general tenor of the section is in respect of land and premises and perhaps footpaths as opposed to roads.
The reference in this section to fences and other structures is with respect to entering upon land and causing damage to property belonging to members of the public.
Section 3.52 of the LG Act reads:
Public access to be maintained and plans kept
(1)This section applies in respect of a thoroughfare only if it is in the metropolitan area or on land that has been constituted a townsite under section 10 of the Land Act 1933.
(2)Except to the extent that it is authorised by law to close them or restrict their use, a local government is to ensure that public thoroughfares are kept open for public use.
(3)In fixing or altering the level of, or the alignment of, a public thoroughfare, a local government is to ensure that access by vehicle to land adjoining the thoroughfare can be reasonably provided.
(4)A local government is to keep plans of the levels and alignments of public thoroughfares that are under its control or management and make those plans available for public inspection.
Section 3.52 of the LG Act refers specifically to public thoroughfares and to only those in the metropolitan area or those in a town site.
The obligation or the duty of the Shire set out in s 3.52 of the LG Act to 'ensure that public thoroughfares are kept open for public use.' applies only to those public thoroughfares in the metropolitan area. Waroona is in the Peel region not the metropolitan area.
Again, the obligation to maintain plans of public thoroughfares applies only to those public thoroughfares in the metropolitan area that are under its control or management.
This indicates to me an intention of the LG Act to deal differently with land in the metropolitan area and land outside the metropolitan area and in town sites.
I am not persuaded that there is a legislative basis for allowing the obstruction of a public thoroughfare 'only in exceptional circumstances'. There are a variety of different thoroughfares and the local authority ought to have the discretion to deal with them differently.[5]
[5] See section 3.1(3) of the LG Act.
I am not persuaded in these circumstances that the purpose for which permission for a gate in a rural area pursuant to reg 9 of the Regulations is sought should be determinative of the application. Such a requirement could potentially lead to a local authority being required to carry out an investigation as to the true purpose of an application for permission for a gate as opposed to the purpose written on an application form.
The intent of having a local authority managing roads in rural areas as opposed to a state or national authority is to allow for regional or local circumstances to be considered. It is trite to suggest that local laws that are desirable and appropriate for a local government authority in an area such as Fremantle maybe quite different to those in an area such as Meekatharra.
An interpretation that allows for more flexibility to the local authority to manage its thoroughfares in the manner it considers appropriate to the local circumstances is to be preferred. See s 3.1(3) of the LG Act.
In applying the principles of statutory interpretation, I note that reg 9 of the Regulations:
•is a local law not a state-based law;
•the history of the legislative scheme is to provide authority to local governments to make local laws; and
•the 'mischief to which the statute is directed is to give local authorities control over thoroughfares for which they are responsible.
A liberal approach to the interpretation of reg 9(1) of the Regulations is to be preferred to allow for local laws to meet the differing needs of a local authority to manage thoroughfares under its management and control.
Regulation 9(1) of the Regulations permits a local government to grant permission for a person to have a gate across a public thoroughfare provided it fulfills the criteria set out in reg 9 of the Regulations.
I am not persuaded that a purpose of a gate, that is, the reason or motivation of a party seeking permission for a gate must be considered by the local authority before it can grant permission.
Regulation 9 of the Regulations requires certain criteria of a gate to be fulfilled namely, to allow motor vehicles to pass and to stop livestock from straying. There is no reference in reg 9 of the Regulations to the purpose of the regulation. I am not persuaded that a purpose can be read into the regulation.
I am satisfied that had the legislature intended that gates could only be approved for the purpose of preventing livestock from straying it would have said so.
I find Regulation 9(1) of the Regulations allows 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.

Regulation 6 of the Regulations

The Shire submits reg 9 of the Regulations 'covers the field' with respect to a local authority's powers to permit the installation of gates and a local authority does not have a residual power under reg 6 of the Regulations to grant permission for a party to install a gate.
The Shire goes further and alleges that to allow the installation of gates pursuant to reg 6 of the Regulations if it could not do so pursuant to reg 9 would be to 'circumvent' reg 9 of the regulations. That is, it would use reg 6 of the Regulations to overcome its lack of power in reg 9 of the Regulations to grant permission for the installation of a gate in a surreptitious manner.
I do not consider it appropriate to approach the matter in that way. The Shire has not referred me to any authority to support this proposition.
What I need to consider is whether permission for the installation of gates can be authorised by the broader power in reg 6 of the Regulations that permits the installation of obstructions.
This approach is consistent with established principles of statutory construction, which include:
a)where statutory provisions intersect, a construction that favours the greatest congruity or coherence between those provisions is to be favoured;[6]
b)each provision in a legislative instrument should have 'work to do';[7]and
c)accordingly, if it is clear that a specific provision was intended to deal with a topic, it will usually prevail over general provisions in relation to that topic.[8]
[6] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky Inc) at [70].
[7] Project Blue Sky Inc at [71].
[8] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 213, Gaudron J.

Regulation 6 of the Regulations refers to obstructions that are 'placed things' and 'protective structures'. Protective structures are defined in reg 6(4)(a) of the Regulations as: '… hoardings, fences, walkways or other structures for the protection of the public thoroughfare or public safety'. 'Things' or 'placed things' appear to be anything else that is not a protective structure and could possibly include gates.
The requirements under reg 6 of the Regulations for permission to be granted for the installation of an obstruction include that the party applying for permission must specify the period for which permission is sought to have the obstruction on the thoroughfare.[9] This indicates that reg 6 should be used for obstructions that are of a temporary nature.
[9] Regulation 6(3)(b) of the Regulations.
Regulation 6 of the Regulations does not grant any power to the local authority to require a person to close a gate as reg 9 of the Regulations does. If a gate cannot be required to be closed it may not be of practical use.
The conditions that may be imposed by reg 6 of the Regulations make it unsuitable and possibly not workable from a practical point of view to grant permission for the installation of a gate that is intended to be a permanent gate.
The conditions that can be placed on the granting of permission pursuant to reg 6 of the Regulations lead me to the conclusion that it was not intended to refer to gates that are to be installed on a permanent basis.
Regulation 6 of the Regulations is specifically intended to deal with a 'thing placed' or a 'protective structure' of a temporary nature, that is its 'work to do'. Following the principles of statutory construction reg 6 can apply to a gate that is a temporary obstruction.
Also applying the principles of statutory construction, permission for a gate that is not a 'thing placed' or a 'protective structure' cannot be obtained pursuant to reg 6 of the Regulations.
Where a gate could be considered 'a thing' or a 'placed thing' to be used on a temporary basis to obstruct the thoroughfare permission could be granted pursuant to reg 6 of the Regulations.
Consideration as to the need for conditions will apply as it would for an obstruction that is not a gate, including but not limited to time limits and or signs warning of the obstruction.
I find that consideration of whether permission should be granted for a gate to be placed on a public thoroughfare pursuant to reg 6 of the Regulations should be made independently of whether permission could be granted pursuant to reg 9 of the Regulations.
For permission to be granted for a gate to be installed pursuant to reg 6 of the Regulations would necessarily require the gate to be a 'a thing' or 'a placed thing' or 'a protective structure' temporary in nature.
I find permission for a gate to be installed could be granted under reg 6 of the Regulations regardless of whether permission could be granted pursuant to reg 9 of the Regulations.
For the above reasons I find reg 6(2) of the Regulations allows 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.
I therefore make the following orders.

Orders

1.The preliminary issues are answered as follows:
(a)Regulation 9(1) of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) (Regulations) allows 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.
(b)Regulation 6(2) of the Regulations allows 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 regulation 9(1) of the Regulations.

2.The proceedings are listed for a directions hearing at 12.30 pm on 13 August 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
2 AUGUST 2021