SUMNER NOMINEES PTY LTD and SWAN RIVER TRUST
[2006] WASAT 168
•26 JUNE 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: SWAN RIVER TRUST ACT 1988 (WA)
CITATION: SUMNER NOMINEES PTY LTD and SWAN RIVER TRUST [2006] WASAT 168
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 26 JUNE 2006
FILE NO/S: DR 19 of 2004
BETWEEN: SUMNER NOMINEES PTY LTD
Applicant
AND
SWAN RIVER TRUST
Respondent
Catchwords:
Swan River Trust Management Area – Private development of gazebo – Parks and recreation reserve – Crown land vested in the local government – No application for approval – Notice served to remove development – Gazebo used for purposes associated with adjacent reception centre – Use of foreshore for private commercial purposes – Use by general public incidental – Order to remove confirmed
Legislation:
Environmental Protection Act 1986
Land Administration Act 1997 (WA), s 41
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 214
State Administrative Tribunal Act 2004 (WA), s 167(5)(b)(i)
Swan River Trust Act 1988 (WA), s 3, s 4, s 50(1), s 52, s 68, s 68(1)(b), s 68(2), Sch 1, Part 5
Town Planning and Development Act 1928 (WA), s 10
Result:
The application for review is dismissed
The notice to remove the development is affirmed, as of the date of this decision
The development is to be removed within 30 days as required by the notice
Category: B
Representation:
Counsel:
Applicant: Mr E Samec
Respondent: Mr T Sharp
Solicitors:
Applicant: Kott Gunning
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Drake and City of South Perth & Anor [2005] WASAT 271
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's Decision
Sumner Nominees Pty Ltd purchased the Mulberry on Swan Reception Centre on Lot 34 Hamersley Road, Caversham in October 2003. On the strip of parks and recreation reserve between the reception centre and the Swan River was a wooden gazebo, which the reception centre had erected in about 1990 and had since used for wedding ceremonies.
The gazebo was in poor condition because of termites and in early 2004 it partly collapsed in a storm. Sumner Nominees instructed a builder to construct a new limestone and timber gazebo just to the west of the old gazebo, which was demolished, without first seeking the approval of the Swan River Trust.
In June 2004, the Swan River Trust issued a notice to Sumner Nominees requiring the gazebo to be removed. The Swan River Trust considered that allowing the gazebo to remain would create an undesirable precedent, which would encourage other landowners who want to privatise, or make an unauthorised commercial gain from the foreshore reserve.
Sumner Nominees lodged an application for review of the notice, saying that a gazebo had been in this location for over 15 years and its removal would not be in the public interest. The gazebo, it said, did not cause any detriment to the Swan River, or the foreshore reserve.
The State Administrative Tribunal has determined that the gazebo was effectively used as an adjunct of the adjacent function centre. The access to the gazebo by the general public was generally incidental to this private commercial use. The State Administrative Tribunal was concerned that the parks and recreation reserve not be used in this way by the unauthorised erection of structures that facilitate commercial use. The application for review was dismissed.
Introduction
This is an application for review of an notice served on Sumner Nominees Pty Ltd (applicant) by the Swan River Trust (respondent) ordering the removal of a gazebo erected by the applicant, from the parks and recreation reserve situated between the applicant's property and the Swan River.
The notice was served pursuant to s 68(1)(b) of the Swan River Trust Act 1998 (WA) (SRT Act) in June 2004. In July 2004, the applicant lodged with the Minister for the Environment an appeal against the order as then provided for under s 68(2) of the SRT Act. The appeal was referred to the Appeals Convenor, established under the Environmental Protection Act 1986 (WA) (EP Act), to investigate and prepare a report for the Minister.
The Appeals Convenor commenced an investigation, but it was not completed within six months of the transfer day, as defined in the State Administrative Tribunal Act 2004 (WA) (SAT Act), that is by 30 June 2005. The matter was then transferred to the State Administrative Tribunal (Tribunal) as provided for in s 167(5)(b)(i) of the SAT Act.
At the last of three directions hearings, on 6 October 2005, the Tribunal ordered that subsequent to an exchange of submissions between the parties, the matter was to be determined entirely on the documents. The Appeals Convener provided to the Tribunal the material he received from the applicant's architect, Mr Kim Doepel, the respondent and from the City of Swan (City), which is the local government for this locality. He also provided his report as completed at the date of transfer. The Tribunal then received submissions on the matter from the solicitors representing the two parties.
The matter has been considered by the Tribunal in the light of this material.
The locality
The applicant owns Lot 34, which faces north to Hamersley Road, Caversham (Lot 34). Lot 34 has an area of 5.98 hectares and is about 230 metres wide. The applicant owns and operates the Mulberry on Swan reception centre (reception centre) which is built toward the south east corner of Lot 34. The reception centre faces south east across Crown Reserve 46665 (reserve) to the Swan River. The reserve appears to be about 1.5 metres lower than Lot 34.
A pontoon has been anchored in the Swan River since about 1985, and is used as a landing by boats delivering visitors to the reception centre. A wooden boardwalk raised at least 350 millimetres on stumps, with handrails, has been constructed across the reserve between the pontoon and the south west corner of the reception centre. To walk along the reserve, pedestrians must ascend three steps, cross the boardwalk and then descend to the reserve on the other side. The reserve is about 40 metres wide where it is crossed by the boardwalk.
About 30 metres to the east of the boardwalk, where the reserve appears to be about 20 metres wide, the gazebo the subject of this application, has been erected about three metres from the river edge. The gazebo is hexagonal in shape and is 6.5 metres across. The overall height from ground level to the apex of the roof is 5 metres and the floor is raised about 500 millimetres above the ground on limestone coloured block footing. At each corner are 1.1 metre high pillars of the same blocks, said to be to defeat the problem of termites, then timber columns supporting the roof. The northern two sides facing the reception centre are open, the remaining sides have a handrail at 900 millimetres. The roof is rafters only as work ceased when the respondent served a stop work order. The respondent has allowed shade cloth to be replaced on the rafters from time to time.
The inside of the gazebo is an empty space with a floor of brick paving. There are two steps on the open sides down to a paved apron that extends 8 metres out from the gazebo and which is up to 12 metres wide at one point. A low wall with flower pots extending at each end of the stairs defines the beginnings of the apron. Beyond the apron is the reserve with lawn maintained by the applicant. The gazebo has a power point installed. People in the gazebo viewed from the apron would have the river and river side trees behind them.
Prior to 27 September 2001, the reserve was owned in fee simple by the Western Australian Planning Commission. On that date, the reserve became Crown Land reserved for the purpose of "recreation". Care, Control and Management of Reserve No 46665 was placed with the City by way of Management Order H881900, dated 26 September 2001, under s 41 of the Land Administration Act 1997 (WA), with power to lease for any term not exceeding 21 years. The reserve has at all times relevant to this matter been reserved for parks and recreation under the Metropolitan Region Scheme (MRS). The reserve is wholly within the management area of the respondent, pursuant to s 4 and Schedule 1 of the SRT Act.
The reserve includes Swan Location 13436 (Location 13436) and Swan Location 13437 (Location 13437). From the information supplied it is not clear where the boundary between the locations lies, but Location 13437 which contains the gazebo and boardwalk, appears to have a common boundary with Lot 34 of about 75 metres at the south east corner adjacent to the reception centre building and grounds. The remainder of the southern boundary of Lot 34 is common with Location 13436 and this location extends some hundreds of metres beyond Lot 34 to West Swan Road.
About 75 metres from the eastern boundary of Lot 34, the Swan River curves to the south and the reserve widens significantly. In an extensive area between the river and West Swan Road, the reserve contains the Lilac Hill Park playing fields. The view between the expansive area of the playing fields and the narrow section of the reserve to the east where the boardwalk and gazebo are situated is restricted because of bush and bunds, and a barrier gate erected to prevent vehicle movement.
Legislative framework
As noted above, the reserve is wholly within the management area of the respondent, pursuant to s 4 and Schedule 1 of the SRT Act.
At s 3 of the SRT Act, "development" is defined as:
"(a)the erection, construction, demolition, alteration or carrying out of any building, excavation, or other works in, on, over, or under land or waters;
(b)a material change in the use of land or waters; and
(c)any other act or activity in relation to land or waters declared by regulation to constitute development ..."
Part 5 of the SRT Act is concerned with controls on development within the management area. Section 50(1) requires that:
"… no person shall undertake or cause to be undertaken any development to which this part applies without the approval of the Minister (for the Environment) …"
Section 52 states:
"52. Applications for approval
(1)If a development is proposed to be carried out ¾
(a)on land that is within the district of a local government, an application for approval shall be made in the prescribed form to that local government;
…
(2)An application shall be accompanied by plans and specifications of the proposed development, and an applicant shall also furnish such information or documents relating to the proposed development as the Trust may reasonably require.
(3)An application to which subsection (1)(a) applies shall be sent to the Trust by the local government together with its opinion on the manner in which the application should be determined."
The SRT Act does not provide for retrospective approval of unauthorised development within the management area.
Part 6 of the SRT Act is concerned with enforcement. Section 68 provides:
"68. Power to direct cessation or removal of development contrary to this Act
(1)The Trust may ¾
(a)by notice in writing served on a person who is undertaking any development in contravention of section 50 or 51 direct him to forthwith stop doing so; or
(b)by notice in writing served on a person who has undertaken any development in contravention of that section, direct him within such period, being not less than 21 days after the service of the notice, as is specified in the notice, to remove, pull down, take up, or alter any development undertaken in contravention of that section,
or may by one notice give both of such directions to a person.
(2)A person on whom a notice is served containing a direction under subsection (1)(b) may, within the period specified in the notice apply to the State Administrative Tribunal for a review of the direction.
(3)A notice containing a direction under subsection (1)(b) is suspended as to that direction pending the determination of the application for a review.
…
(6)If a person fails to comply with a notice given to him under subsection (1)(b), the Trust may itself remove, pull down, take up or alter the development and may recover from the person in any court of competent jurisdiction the costs incurred by it in so doing."
Events just prior to the serving of the notices
The respondent purchased Lot 34 with the reception centre in October 2003. At that time there was on the reserve, between the reception centre and the river, a wooden gazebo erected about 1991 by previous owners of the reception centre. The applicant said that an inspection in October 2003 showed the wooden gazebo to be in a deteriorated condition, including extensive damage by termites. In a storm in early 2004, the gazebo partly collapsed and became dangerous, the applicant instructed a builder to demolish the remains and erect a new masonry and timber gazebo. The respondent says the new gazebo is larger than, and in a different location from, the former gazebo. The evidence includes poorly reproduced surveyor's drawings, photographs of the former and existing gazebos, and aerial photographs of different years at small scale. From these, the comment can be made that the new gazebo appears to be about the same size as the former structure, that it is orientated differently and that it is several metres further to the west, closer to the small bridge across a drain.
On 16 March 2004, on inspecting the reserve, the respondent found that the old gazebo had been demolished and the new gazebo being constructed. No application for approval of the development had been lodged with either the City or the respondent as required for development in the respondent's management area.
The notices
On 18 March 2004, the respondent served on the applicant a notice to stop further work. The notice stated:
"Pursuant to Section 68 of the Swan River Trust Act 1988 ('the Act') you are hereby ordered to cease the development which was undertaken contrary to Section 50 of the Act, namely, the limestone and timber gazebo within the part of the management area to which the Act applies an Lot 13437 of Crown Reserve 46665, Caversham."
On 28 May 2004, the respondent again inspected the locality and on 24 June 2004, served a further notice on the applicant, this time to remove the gazebo. The notice stated:
"Pursuant to Section 68(1)(b) of the Swan River Trust Act 1988 ('the Act') you are hereby ordered to remove the development which was undertaken contrary to Section 50 of the Act, namely, the limestone and timber gazebo within the part of the management area to which the Act applies on Lot 13437 of Crown Reserve 46665, Caversham."
The applicant then lodged with the Minister for the Environment the appeal against the order to remove the gazebo that has become this application for review before the Tribunal.
The role of the tribunal in the review of the notice
The respondent says the notice served under s 68 of the SRT Act to remove unauthorised development must be distinguished from such notices served under s 10 of the Town Planning and Development Act 1928 (WA) (TPD Act) (now s 214 of the Planning and Development Act 2005 (WA) (PD Act)). This is because some town planning schemes include capacity to apply for a retrospective planning approval and this can be "twin tracked" with a review of a notice to remove unauthorised development. The respondent argued the SRT Act does not provide for retrospective approval of an existing development and a review under s 68 must simply be to determine whether or not the development was unauthorised. If it is unauthorised, it was submitted, the only course is that the notice stands and the requirements of the notice must be completed. The applicant said that it was not seeking retrospective approval of the gazebo, just that the order to remove the gazebo be set aside.
The role of the Tribunal in reviewing a notice to remove unauthorised works issued under s 10 of the TPD Act (now s 214 of the PD Act) has been usefully analysed by Senior Member David Parry in the recent decision Drake and City of South Perth & Anor[2005] WASAT 271 [90] – [97]:
"90Section 10 of the [TPD] Act confers a discretion on the responsible authority as to whether or not to give a direction to the owner of land or any other person who undertook development in contravention of a town planning scheme and, if it decides to give a direction, as to its terms. In Re Griffiths; Ex parte Homestyle Pty Ltd (2005) 139 LGERA 178, McLure JA, with whom Roberts Smith and Pullin JJA agreed, held, at [22], that s 401(1) of the Local Government (Miscellaneous Provisions)Act 1960(WA) confers a discretion on a local government to issue a notice to the builder or owner of a building to pull down or alter the building in specified circumstances. Her Honour set out four reasons in support of her conclusion that the section confers a discretion, the first three of which were as follows:
'Firstly, by virtue of section 56(1) of the Interpretation Act 1984 (WA) there is a presumption that the word 'may' imports a discretion. Secondly, the power is activated by a variety of conduct which may differ significantly in nature and degree. Thirdly, there would be little need for an appeal if the City was under an obligation to issue a notice.'
91Each of these reasons is equally applicable in relation to s 10 of the Act. In this regard, s 56(1) of the Interpretation Act [1984 (WA)] provides that "where in a written law the word 'may' is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion". Section 10AA of the (TPD) Act [now s 255 PD Act] provides that a person to whom a direction is given under s 10 may apply to the Tribunal for a review of the decision to give the direction.
92Section 10 of the Act is silent in relation to the factors which the responsible authority should consider in determining whether to exercise its discretion to give a direction and, if it decides to give a direction, as to its terms. The factors which would guide or inform the exercise of discretion to give a direction under s 10 cannot be exhaustively stated. It would be impossible and inappropriate to attempt to do so. However, it is instructive, both for the purposes of these proceedings and the proper application of s 10 generally, to identify the following five important matters for consideration in the exercise of discretion under that section.
93First, it is in the public interest of the proper and orderly development and use of land that planning law should generally be complied with. It is expected that, normally, those who carry out development or subdivision, or use land, should comply with the planning legislation and any applicable approval, licence or other authorisation in relation to that activity. As Kirby P (as his Honour then was) observed, in a related context, in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 340:
'[T]here is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1951] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211.'
94Second, the impact of the contravention of the scheme on the affected locality and environment. This includes a consideration of whether "the breach complained of was a purely technical breach which was unnoticeable other than to a person well-versed in the relevant law (cf Parramatta City Council v RA Motors Pty Ltd (1986) 59 LGRA 121 at 125f)": Warringah Shire Council v Sedevcic (supra) per Kirby P at 339.
95Third, the factual circumstances in which the contravention of the scheme took place.
96Fourth, the time which has elapsed since the development was undertaken in contravention of the scheme.
97Fifth, the expense and inconvenience which would be involved in remedying the contravention of the scheme."
With respect, given the wording of s 68, it is considered the Tribunal has the same role to play in determining this application for review, which is concerned with unauthorised development, as discussed above for orders under s 214 of the PD Act and s 401 of the Local Government (Miscellaneous Provisions)Act 1960 (WA). That is, to review the decision by the respondent to issue the order and to determine whether or not it is appropriate to set aside the order. The matter has been considered under the headings that follow.
Replacing a pre‑existing structure?
A gazebo had been located on the reserve near the river since, at least, about 1990, apparently constructed and used from that time by a former owner of the reception centre. The respondent said it had no record of the original gazebo being approved under Part 5 of the SRT Act and that the City had advised no planning or building approvals had been issued. From the evidence it is apparent that in 1990, the Minister for the Environment dismissed an appeal seeking to allow the former structure to remain. There were subsequent exchanges of correspondence between the then owner, the Minister and the respondent in respect to the structure being given to the Western Australian Planning Commission and lease arrangements put in place. These came to nothing, but no action was taken to have the structure removed.
When the applicant purchased the reception centre in October 2003, it was advised by a building surveyor that the gazebo was in a deteriorated condition. When the gazebo was damaged in a storm, the applicant did not carry out repairs, but had it demolished and replaced. The applicant said it had acted in good faith. It had believed the previous gazebo had been sanctioned by the respondent and the City because both authorities knew of it, knew the use made of it and at no time before March 2004 had expressed any concerns to the applicant. Had it been aware the previous gazebo was not approved, the necessary applications for approval of the new structure would have been lodged.
There has been a gazebo in this general location for at least 16 years, but the Tribunal does not consider that the new structure should be allowed to remain just for this reason. The new pergola is considered to be more than simply a replacement.
Scaling from the provided surveyor's plans of 2000 and 2004, the new gazebo is about 4.5 metres to the west of the site of the former gazebo. The new gazebo is therefore in a different location, is of new materials, including additional masonry, and is to the applicant's design. The new gazebo is designed and orientated to be suitable for the use the applicant would make of it from time to time as part of its function centre business.
The applicant should have been aware that the gazebo was on Crown Land reserved for parks and recreation. Advice to the applicant on purchase in October 2003 was that the structure was badly deteriorated, with the implication that it was not particularly suitable for use as an adjunct to the reception centre. To consciously construct a new pergola in such circumstances could only be supported if resultant use of the structure was consistent with public ownership of the reserve and the recreation purpose for which the reserve was created. The circumstances in which the new gazebo was privately constructed are not considered to provide a basis of themselves for allowing the new pergola to remain.
Environmental and visual amenity impacts
In the opinion of the respondent, the photographs it provided show that the new gazebo was clearly visible from the river and there would be an impact on the river and reserve. Had an application been made, it is unlikely that an approval would have been granted because of the overall bulk and scale of the gazebo and its close proximity to the river bank. In addition, no provision had been made for proper disposal of storm water from the structure and surrounding paved areas and this also would have an impact.
Mr Doepel, the applicant's architect, said the gazebo was an insubstantial structure. It had a removable shade cloth covering, open sides, was similar to a typical backyard gazebo and was of human scale. He said the photographs provided show the gazebo to be an attractive structure that blended into the dominant flooded gums along the edge of the riverbank and did not detract from the natural surroundings.
The applicant submitted that the City has been aware of a gazebo on the reserve for many years and so was in the most favourable position to assess the impact on the foreshore reserve, Swan River and the amenity of the locality. It argued that the greatest weight should be placed on the City's view. The applicant drew attention to the letter dated 18 October 2004, from the City to the Appeals Convenor, in which the City advised:
"… that the City has no objection to the proposal. In particular, the City endorses the comments of Mr Doepel outlined in his submission entitled 'Supplementary Information, Appeal to the Hon. Minister for the Environment Against the Notice to Remove the Development', as there is no adverse impact on the Reserve."
The applicant emphasised that it considered the gazebo would not create any environmental impact or pollution threat. There was no water connected or sewerage needed so there was no possibility of water, waste or spillage of any kind entering either the surrounding ground or the Swan River.
As pointed out by Mr Samec, for the applicant, all development by its very nature must have some impact on land. The photographs provided by the parties show that the proposed gazebo is not higher than, but is visible through, the river side trees. The photographs also show that the structure is not of imposing bulk and scale.
The Tribunal is of the view that the gazebo is a simple structure that is not of itself visually offensive. The question for review, it is considered however, is more than the degree of impact of the structure on the amenity of the foreshore reserve. If it were simply a matter of whether a public gazebo of the design proposed could be allowed, then the City's comments could be endorsed. Of more concern are the implications of the purpose for which this gazebo was privately constructed on public land.
Public Benefit
The applicant said use of the gazebo for weddings encourages greater public use of the foreshore reserve by people who would not otherwise attend at this part of the river foreshore. In addition, the gazebo and the reserve have always been used by the general public as a recreational facility and that access would continue. There would be no benefit, it was argued, to the public or tourists or the City in whom the reserve is vested, if the gazebo were to be removed.
The respondent argued that it is not in the public interest that the gazebo remains. The general public have restricted access to the gazebo and the foreshore reserve because of fencing on both sides of the reception centre. Regular inspections of the foreshore by its officers have showed that this section of the reserve was not popular with the general public because of these problems with access.
From the submissions, it is apparent that the applicant, having erected the gazebo, has an expectation that it would be available for its purposes when required. When not in use by the reception centre, it would be available to the general public for whatever use they might make of it.
The gazebo is simply an empty space under a roof. It does not include any public facilities such as a table and seating. The gazebo is located at the end of the parks and recreation reserve, generally obscured from the remainder of the reserve by vegetation and bunding, and is beyond the applicant's raised walkway across the reserve. Incidental use by members of the general public that might occasionally venture this far, is not considered by the Tribunal to constitute a public benefit that of itself warrants the keeping of the gazebo.
Unauthorised development and use
In the opinion of the respondent, the applicant's main purpose in replacing the gazebo was for use in their commercial operations. It was therefore the respondent's assertion that the gazebo was primarily for commercial purposes, in particular wedding ceremonies.
The respondent argued that if the applicant is not directed to remove the structure, this will allow an undesirable precedent to continue and serve to encourage landowners who want to privatise, or make an unauthorised commercial gain from, the foreshore reserve.
The applicant said the new gazebo simply replaced an existing gazebo, and therefore did not represent a development inconsistent with the existing use of the land. It was not a commercial building and the physical form of the gazebo did not lend itself to privatisation of the foreshore reserve.
The applicant advised that as reception centre staff were maintaining the reserve, it was willing to enter into any reasonable lease arrangement with the City. The Appeals Convenor reported that the City had advised that it would consider leasing the reserve to the applicant, but any lease arrangements would be restricted to recreational uses in accordance with the vesting order for the reserve. It would appear that such a lease might defeat the purpose of having the gazebo always available when required for the purposes of the reception centre.
In response to the respondent's concern about allowing the development to remain, setting an undesirable precedent, Mr Samec argued that each application must be considered on its merits and that the precedent argument is not a stand alone argument, citing Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) at page 10. There was no evidence, he said, that there having been a gazebo in this location for over 15 years had resulted in other applications for similar developments. There was nothing to support the respondent's concern that allowing the gazebo to remain would serve to encourage landowners to try to privatise the foreshore reserve.
Precedent was considered in an analysis of authorities, including Aspen Pty Ltd v State Planning Commission, by Senior Member Parry in another recent decision of the Tribunal, Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71 - 75]. It is not proposed to repeat the analysis here, other than to say that Mr Parry respectfully adopted as consistent with Western Australian authority, including Aspen Pty Ltd v State Planning Commission:
"… criteria stated by Lloyd J in Goldin v Minister for Transport as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely:
'(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.' "
In considering this matter, I respectfully adopt the same approach to precedent. The structure in itself is not objectionable, but what is considered objectionable is the circumstances of its development and the implied appropriation of foreshore land by the erection of a structure for the purposes of a commercial operation. The gazebo is considered to be, in reality, an adjunct to the reception centre use on Lot 34. It would be difficult to distinguish the use with other applications by private or commercial land owners that by simple development seek to appropriate the public foreshore for private use.
Comment
The structure is unobjectionable in terms of visual impact, but the use made of it can be considered "not unobjectionable". This is because it is a private development designed, orientated and with surrounds, set out to facilitate its use for reception centre purposes, particularly weddings. It was built essentially for reception centre purposes with public use incidental. This gives the gazebo the air of being an adjunct to the reception centre.
Precedent is considered a valid consideration in this instance. This is a privately developed structure that enhances a commercial operation of which the general public might make use when it is not used for commercial purposes. In this, it is considered that there is more than a mere possibility of applications by others for a facility that might be available for some use by the general public when not used for commercial purposes by the developer. The Tribunal is of the view that this form of commercial activity should only rarely occur in the parks and recreation reserve.
Achieving public ownership of the foreshore reserves and ensuring public access to and use of them has been central to the MRS since its gazettal in 1963 and is not lightly set aside. It is in the interest of orderly and proper planning that the planning law be complied with in this instance because of the significance of the parks and recreation reserve. Private advantage should not be supported in this instance simply because the gazebo has been built.
The building of the gazebo was a breach of the development control in place. It was not an obscure technical breach but clearly the erection of a structure for a particular purpose on Crown Land. Notwithstanding that there might have been a gazebo on this site since about 1990, the existing gazebo, as discussed above, is considered to be a recent construction that should not enjoy the benefit that might attach to a structure that has been in place for a long time.
The gazebo is not a public facility. It is a private development constructed on public land for the purposes of the adjacent reception centre. There might be incidental use of it by the general public when it is not required by the reception centre, but this is not considered to be such a public benefit that the order to remove the structure should be set aside and the unauthorised development be allowed to remain.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The notice to remove the development is affirmed, as of the date of this decision.
3.The development is to be removed as required by the notice.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
2
4
8