| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : SHIPS OF THE DESERT and SHIRE OF BROOME [2014] WASAT 49 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 3, 4 AND 5 FEBRUARY 2014 DELIVERED : 5 FEBRUARY 2014 PUBLISHED : 29 APRIL 2014 FILE NO/S : DR 435 of 2013 BETWEEN : SHIPS OF THE DESERT Applicant
AND
SHIRE OF BROOME
First Respondent
RED SUN CAMELS
Second Respondent
BROOME CAMEL SAFARIS
Third Respondent
SUNDOWNER CAMEL TOURS
Fourth Respondent
Catchwords: Local government Permits and approvals Approvals under Local Law Local Law regulating trade in a public place Commercial camel activities on Cable Beach Conditions on trading licences Whether Tribunal had jurisdiction to review decisions of Shire under Local Law Tribunal holding that it had jurisdiction to undertake reviews Local policy regulating commercial camel operations on Cable Beach Four applicants for licences Policy established maximum of three licences Policy established requirement of suitable tenure to conduct operations Unsuccessful applicant did not have sufficient access to and tenure of suitable land Tribunal affirming decision of Shire to exclude unsuccessful applicant Challenge by successful applicant to conditions of licence Operational matters arising from conditions referred to mediation Tribunal indicating that previous decisions of Tribunal suggested that Tribunal will be slow to interfere in operational matters Successful applicant challenging grant of licence to other successful applicant Tribunal holding that assuming power existed no case made to interfere with Shire's decision to grant third trading licence Operational matters referred to mediation Applications otherwise dismissed Legislation: Local Government Act 1995 (WA), Div 1 Pt 9 Result: Operational matters referred to mediation; otherwise applications dismissed
Summary of Tribunal's decision: In November 2013, the Shire of Broome awarded three trading licences for commercial tourist (camel) operations on Cable Beach. The decisions of the Shire were made under a Local Law which gave certain rights of review to affected persons. Two of the applicants in the Shire's process (Ships of the Desert and Red Sun Camels) were the applicants in these two consolidated review applications in the Tribunal.
The Tribunal followed its earlier decisions in relation to reviews concerning beach polo events on Cable Beach, and overruled objections to jurisdiction made by both the Shire and one of the successful applicants (Broome Camel Safaris), which was a respondent in the proceedings.
The Shire's decisions were made pursuant to a detailed written policy and with the help of an independent consultant. The Shire's policy framework had been generally upheld by the Tribunal some years earlier, and none of the parties to the review wanted to upset the three-licence maximum provided for in the Shire's Policy. The Tribunal noted that the policy framework involved reconciling a number of complex and interrelated issues to do with economics, ecology, tourism and regulating access to public places.
One of the applicants (Ships of the Desert) was unsuccessful with the Shire and sought, by way of review, to have one of the three trading licences issued to it instead of some other successful applicant. Ships of the Desert had been excluded by the Shire because it lacked tenure of or access to suitable land. The three successful applicants all held Crown leases in what was a special 'camel precinct' close to Cable Beach.
The Tribunal refused to intervene to set aside the decision not to grant Ships of the Desert a trading licence. The Tribunal viewed the tenure provisions of the Shire's policy as both rational and justified. Despite the considerable efforts of Ships of the Desert to obtain proper tenure, these steps were insufficient to meet this necessary and basic requirement to obtain a trading licence.
Another operator (Red Sun Camels) sought review in relation to a number of the operating conditions attached to its trading licence. Although the Tribunal took evidence in relation to such matters, after dealing with the substantive issues, the Tribunal referred all such operational matters to onsite mediation. All of the parties to the two reviews (including Ships of the Desert) were to be invited to the mediation.
In referring these matters to mediation, the Tribunal noted that the thrust of previous decisions of the Tribunal was to the effect that the Tribunal would be slow to 'micromanage' operational decisions of the Shire, which entity was both the policymaker and the primary administrator of the public land constituting Cable Beach.
Red Sun Camels also sought to displace the third successful applicant (Mr Madden) from his licence. Mr Madden has had considerable experience over the years in the tourist camel industry, both in Broome and elsewhere in Australia. The Tribunal held that, assuming it had the power to do so, nothing of any substance had been presented which demonstrated any irregularity or deficiency in either the process or the outcome sufficient to warrant intervention by the Tribunal.
The Tribunal held an expedited hearing in Broome and because of the possible commercial and tourism impact of the proceedings, the Tribunal delivered reasons for decision immediately after the review.
Category: B
Representation: Counsel:
Applicant : In person
First Respondent : Mr P Wittkuhn
Second Respondent : In person
Third Respondent : Ms M Fifield
Fourth Respondent : In person
Solicitors:
Applicant : In person
First Respondent : McLeods Barristers & Solicitors
Second Respondent : In person
Third Respondent : Avon Legal
Fourth Respondent : In person
Case(s) referred to in decision(s):
Bird and Shire of Broome [2006] WASAT 338; (2006) 47 SR (WA) 125
Madden and Shire of Broome [2007] WASAT 207
Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98
Polo Enterprises Australia Pty Ltd and Shire of Broome [2014] WASAT 3
Red Sun Camels Pty Ltd and Shire of Broome [2008] WASAT 201
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The Tribunal is concerned with two applications for review which have been consolidated: DR 435/2013, which is Mr Bright's application in respect of the Shire of Broome (Shire) to grant his company a trading licence for a commercial tourist (camel) operation on Cable Beach (Ships of the Desert); and Mr Geappen's proposed review in DR 463/2013, which is mainly a challenge to certain conditions in respect of the grant to his company's trading licence for a commercial tourist (camel) operation on Cable Beach (Red Sun Camels). 2 Mr Bright's application essentially deals with the local policy criteria applicable to such licence applications. In particular, the issue is whether he can comply, to the satisfaction of the Tribunal, with that policy intent as to his tenure of and access to suitable land. The second application, by Mr Geappen, deals with a number of policy-based operational matters. Mr Geappen also seeks to raise concerns with the grant of a licence to another party (Mr Madden) who is a respondent in these consolidated proceedings. 3 The Tribunal held an expedited hearing in Broome. Because of the need to resolve matters which might have a significant commercial or tourism impact, the Tribunal gave oral reasons for its determination at the conclusion of the hearing. 4 What follows is taken from the transcript of those reasons, and has been formally revised and edited for publication.
Facts and background 5 The Shire was represented by Mr P Wittkuhn. For the purposes of the factual matters in this review, I adopt, with gratitude, counsel for the Shire's statement of relevant facts so far as it is common ground between the parties. Mostly, those matters are not in dispute; they are reproduced below, so far as are relevant, in an edited form: 1. Licences are regulated by the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 (Local Law). 2. Council's decisions of 21 November 2013 which are now under review, concern applications for licences under the Local Law to trade (trading licences) on a public place (part of Cable Beach), and more specifically, commercial camel operations on and from 1 January 2014. 3. The Council's decision under the Local Law is guided by the Commercial Camel Activities on Cable Beach Policy 4.5.1 (Policy), adopted in its present form by resolution of 20 June 2013. 4. The Policy in its various forms over the years has provided for three trading licences only to be granted for commercial camel operations on Cable Beach. 5. The Policy incorporates criteria for applications for a trading licence. Some of those criteria are expressed as 'Essential - non-weighted'; others are expressed as 'weighted'. 6. Among the 'Essential criteria - non-weighted' is: '2. Evidence of access to appropriately-zoned land and all necessary approvals for premises from which the commercial camel activity will operate'. 7. In accordance with the Policy, Council invited applications for the issuing of three licences only, to operate on and from 1 January 2014. All then-existing trading licences for commercial camel activities on Cable Beach were due to expire on 31 December 2013. 8. Four applications were received. Three were from holders of existing trading licences: (a) John Geappen, who is a director of Red Sun Camels Pty Ltd; (b) James Bright trading as Ships of the Desert; and (c) Allen and Alison Bird trading as Broome Camel Safaris. The fourth application was from Mr Steve Madden, who had operated the Red Sun Camels business on Cable Beach some years earlier, but who has not operated a camel business in Broome since that time. 9. Mr Bright's application was assessed by the Shire as non-compliant with regard to the aforementioned essential criterion. 10. Mr Bright's application was refused by the Shire on that basis. 11. The other three applications were conditionally approved. 12. Mr Geappen and Ships of the Desert are respondents to each other's proceedings, whilst the Birds and Mr Madden are respondents to each of the two proceedings.
Review of operational matters: mediation 6 As was indicated during the hearing, the Tribunal has decided - and this has generally now been accepted by all parties - that all conditional matters dealing with, for example, the dates of any licence's duration; any policy-based operating requirements; and issues to do with fees and charges and the like (other than, perhaps, the prohibition on the sale of bottled water, which the Shire has, sensibly, agreed to review) will be referred to on-site mediation to be arranged for Broome between all of the parties, as soon as is practicable. 7 Nevertheless, while the Tribunal has been in Broome, the opportunity has been taken to consider as much of the evidence in relation to those matters as has been practicable should it turn out to be necessary to resolve these matters by way of a further hearing.
What this case is not about 8 Before turning to the reviews themselves, I should mention two matters, to indicate what this case is not about. 9 The first is that while aspects of the Cable Beach Policy 4.5.1 (Policy) and its application are disputed by the parties, no party seeks to undermine the maximum limit of three trading licences, which is the number set out in the Policy. The Tribunal has effectively upheld the three trading licences policy in earlier proceedings: Madden and Shire of Broome [2007] WASAT 207 (Madden). 10 Secondly, insofar as Mrs Bird's trading licence is concerned (Mrs Bird is the third camel operator and licence holder - Broome Camel Safaris), no party has seen fit to interfere with that decision.
Jurisdictional challenges 11 I turn next to the question of jurisdiction, which has been raised by both the Shire and by Mrs Bird's counsel. Division 1 of Pt 9 of the Local Government Act 1995 (WA) deals with objections and reviews of decisions made by the Shire under the Local Law. 12 The Tribunal overrules the objections to jurisdiction made by those parties. 13 In my view, the Shire's decisions of 21 November 2013 fall within the same category of a reviewable 'transactions' as appeared in Polo Enterprises Australia Pty Ltd and Shire of Broome [2013] WASAT 98 (Polo) (cf Polo Enterprises Australia Pty Ltd and Shire of Broome [2014] WASAT 3). I propose to follow and apply those decisions and a previous decision of this Tribunal (Bird and Shire of Broome [2006] WASAT 338; (2006) 47 SR (WA) 125), upon which Polo relied, to establish that the Tribunal has jurisdiction to undertake the review. 14 I should mention also that the Tribunal does not accept the contention that a preliminary screening or threshold rejection by the Shire of Mr Bright's application somehow changes the character of the administrative decision in relation to Mr Bright and his Ships of the Desert operation. Likewise, I do not accept that categorising one licence - that is, Mrs Bird's Broome Camel Safaris operation - as a 'renewal', would somehow take her licence out of the scope of review. 15 In any event, it appears that Broome Camel Safaris did not expressly apply for a renewal and, in any case, the Shire did not process it as a renewal. If it was in fact a renewal, then the same policy (that is, the Policy we are dealing with in the review) was applied to the assessment of Mrs Bird's application for a trading licence under the Local Law. 16 None of these matters detract from the jurisdiction of the Tribunal to undertake the review.
The exercise of the review jurisdiction 17 I turn to the exercise of that jurisdiction. Clearly, Mr Bright has rights of review in relation to the refusal of his trading licence. Likewise, Mr Geappen has rights to challenge, not, of course, the Policy itself, but the application of the Policy that, in effect, produces disputed conditions. Now, whether Mr Geappen has standing to, in effect, impugn Mr Madden's success as the third licence holder may be put aside for the moment. 18 For the reasons advanced by the former President of this Tribunal (Barker J) in previous 'camel cases' (see, for example, Madden, and Red Sun Camels Pty Ltd and Shire of Broome [2008] WASAT 201), the Shire's Cable Beach camel policies (the Policy is its latest iteration) are rational, and, in my view, lawful, and ought to be applied to regulate trading licences for camel operations on Cable Beach. 19 Indeed, the thrust of those previous 'camel cases' indicates that the Tribunal will be slow to 'micromanage' operational decisions of the Shire, which body is both the policy-maker and the primary administrator of the public land constituting Cable Beach. It seems clear from those authorities - and this is certainly my own view as well - that if, speaking generally, decisions about conditions attaching to licences fall within the 'range of reason', then they will not be disturbed by the Tribunal. Such a position of course does not prevent mediation about these matters, nor does it limit the actual jurisdiction of the Tribunal to finally determine such matters. 20 However, it needs to be emphasised that managing interrelated and complex issues such as the regulation of the iconic camel rides tourism industry in Broome; the use of public resources (including beaches); the assessment of the ecological impact of any proposed use of public land; questions of community access and safety; determining economic matters relating to the tourism industry (including predicting visitor numbers and, in effect, estimating the viable return on investment for the commercial operators of the camel tours); and any coordinating role with the State Government (which is the owner, as the Crown, of what I describe below as 'the camel precinct') are all matters, prima facie, for the primary decision-maker. That is, they are matters for the Shire to balance and to consider in the formulation of and in the application of any relevant policy.
First issue: Compliance with the tenure requirements of the Policy 21 The first matter to be considered is whether Mr Bright meets a criterion described as 'essential' concerning, in effect, access to suitable land to hold his camels. The Policy refers to access to 'appropriately zoned land' and 'all necessary approvals for premises from which the commercial camel activity will operate'. In addition, the Policy refers to 'all necessary approvals for property owned and or managed by various stakeholders'. The relevant contentions of Mr Wittkuhn are as follows: 1. The conducting of camel tours of up to 16 camels per team on the beach necessitates the keeping and stabling of well-trained camels in reasonable proximity to Cable Beach. 2. A trading licensee's security of tenure of suitably-zoned land for that purpose has a direct nexus with the safe, orderly and reliable conducting of tours on Cable Beach. 3. Camel tours are a high-profile, iconic feature of tourism in Broome. There is no good reason why, in the interests of better assuring a reputable and reliable service through the licensed use of a public asset (part of Cable Beach), camel tour operators should not demonstrate that their business is not at peril of lacking lawful access to proper stabling facilities for camels. 4. The criterion should be upheld as an essential criterion, and to be given sensible and meaningful content, properly refers to a form of legally-recognised security of tenure such as a freehold or leasehold interest. It is not necessary for the purposes of the present proceedings to determine whether a mere licence to occupy land should be regarded as sufficient for the purposes of the essential criterion. 22 It is true that the status as an owner in fee simple or as a lessee or even as a licensee is not expressly mentioned or required by the Policy. But, the clear intent of the Policy is to have some legitimate, regular and certain base in sufficient land for a proper commercial camel operation. Further, it seems to me that the Policy must be applied in the certain knowledge of the drafters of it that there was already in existence, in effect, a 'camel precinct' relatively near to Cable Beach, comprising several Crown leases, for the special purpose of housing camels and their caretakers in connection with these operations. 23 I accept the Shire's Mr Schonfeldt's explanation of the rationale for the Policy's objective on this point. I also accept the thrust of the Shire's case which is set out above. In short, the questions of access to appropriate land and the related issue of tenure are foundational to the grant of any trading licence. 24 The three successful applicants hold Crown leases in the camel precinct, specifically for their operations or proposed operations. Mr Bright, the unsuccessful applicant, does not, although he and his partner have done everything in their power to improve their position beyond the personal 'licence' that they currently appear to hold in relation to the housing of their camels on Mr Geappen's land. Whether that arrangement with Mr Geappen (which I view as largely ephemeral, and probably temporary) is strictly lawful or not - as no Ministerial consent has been given for it - need not be presently decided. 25 Whatever the status of this arrangement, the plain fact is that Mr Bright does not hold, relative to the other three contenders, any tenure, interest, or other stake in land sufficient to meet the Policy's intent of suitable access to appropriate land. This may change in the future. I acknowledge Mr Bright's efforts to rectify this situation, including his recent attempts to obtain a proper lease of certain freehold land. 26 The Tribunal has considerable sympathy for Mr Bright given his 'Catch 22' position. He is in a position where his expected arrangements for land have fallen through and suitable land in Broome is scarce, and the State's land administrators are still working through various issues (including issues to do with unpaid rent) with some of the relevant lots and leases in the camel precinct. 27 Now, none of this is really satisfactory, but neither is it the fault of the Shire, nor the responsibility of the Shire to fix this situation. The Shire and the Tribunal must take Mr Bright's position more or less as they find it; that is, that he is, at present, without satisfactory or sufficiently regular access to suitable land for such a specialised operation. 28 There is unlikely to be any change to that position in the immediately foreseeable future, although this may alter in the medium to long-term. Also, whatever problems both Mr Geappen and Mr Madden are having with the State's land administrators, the fact is that they, like Mrs Bird, are the holders of registered instruments of lease giving them security of tenure. 29 The Tribunal regrets that it cannot intervene in this situation to give Mr Bright the relief that he seeks. Unfortunately, the Tribunal has no magic wand to wave to make these problems disappear.
Second issue: Should Mr Madden's licence be displaced? 30 Assuming that it has the power to do so, I can see no basis whatever for the Tribunal to intervene, on, say, Mr Geappen's application, in respect of either of the two licences already granted, or in respect of the third licence to be granted to Mr Madden. As I have said, the Shire is the primary administrator in this area and here it has applied its Policy methodically, carefully assessing each successful applicant. An independent consultant has assisted with this process. The third licensee, Mr Madden, is no stranger to the tourist camel industry in Broome and elsewhere in Australia. 31 Nothing has been produced to me, despite what Mr Geappen has alleged, to show any irregularity or deficiency in either the process or the outcome sufficient to warrant intervention by the Tribunal.
Conclusions and final orders 32 In summary, Mr Bright's application must be dismissed, and so much of Mr Geappen's application that seeks to displace any decision awarding a relevant trading licence must also be dismissed. Subject to the Tribunal's orders (see below), the decisions under review are affirmed. The remaining operational matters in dispute will be referred to on-site mediation. All parties will be invited to attend that mediation. 33 Accordingly, for the reasons set out above, the Tribunal makes the following orders: 1. Leave is granted to amend the title of the applicant in proceeding DR 435/2013 to show the applicant as 'Ships of the Desert Pty Ltd'. 2. Material which has been filed with the Tribunal in respect of which there is a claim for its treatment as 'protected matter' is to remain sealed and is not to be disclosed until further order of the Tribunal. 3. For the reasons given, Ships of the Desert Pty Ltd's proceeding DR 435/2013 is dismissed, and the decision under review is affirmed. 4. For the reasons given, so much of Mr Geappen's proceeding DR 463/2013 which is not dealt with in the following paragraph of these orders (referring certain matters to mediation) is dismissed, and the decisions under review are otherwise affirmed. 5. So much of proceeding DR 463/2013 which deals with claims concerning operational matters and conditions is to be referred for mediation on site in Broome. 6. All of the parties to proceedings DR 435/2013 and DR 463/2013 are to be invited to the proposed mediation. 7. Each party to the mediation shall file and exchange their preferred dates for mediation, by 28 February 2014. |