Till v Sunshine Coast Regional Council
[2016] QCAT 530
•19 December 2016
CITATION: | Till and Others v Sunshine Coast Regional Council [2016] QCAT 530 |
PARTIES: | Liam Till and Others |
| v | |
| Sunshine Coast Regional Council (Respondent) | |
| APPLICATION NUMBER: | ADL119-15 |
| MATTER TYPE: | Anti-discrimination matters |
HEARING DATE: | 11 November 2016 |
HEARD AT: | Maroochydore |
DECISION OF: | Member Clifford |
DELIVERED ON: | 19 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The complaints are dismissed. |
CATCHWORDS: | DISCRIMINATION – Indirect discrimination - where most accessible access point to patrolled beach is close to a dog off leash area - where closest access point to patrolled beach has steps - whether particular conditions to access beach impose a term - whether applicant indirectly discriminated against because of parental status, family responsibilities, or association with young children - whether applicant’s children indirectly discriminated against because of age - whether children of tender age have impairment - whether persons without the attributes can comply - whether terms imposed are reasonable. Anti-Discrimination Act 1991 (Qld), s 6 - 11; s 46; s 101, s 204, s 205, s 209 and s 210. |
APPEARANCES and REPRESENTATIONS: | |
APPLICANT: | Mr Till represented himself. |
RESPONDENT: | Mr Michael Kohne, Integrity Management Officer (Corporate Governance Branch) represented the Sunshine Coast Regional Council. |
REASONS FOR DECISION
Background
Liam Till and his two children, a daughter born March 2013 and a son born December 2014, live on the Sunshine Coast at the Town of Seaside in a house Mr Till and his wife built and moved into in early 2011.[1]
[1]Exhibit 1, Statement of Evidence, p.16
The house is located in the residential area directly adjacent the beach, and is about mid-way between Beach Access 98 to the south and BA97 to the north. BA96 is about 75 metres north of BA97 and is the closest Beach Access point to the Lifeguard Tower from where the patrolled beach is set up. BA96 has a number of steps onto the beach, BA97 is described as very steep and sandy, and BA98 starts at the accessible toilet block, follows a boardwalk and then has around 40 metres of board and chains onto the beach.[2]
[2]Exhibit 1, Photographs p.4 - 8.
The Town of Seaside patrolled beach is seasonal, and operates on all weekends and school and public holidays between the start of September school holidays to the first weekend in May between the hours of 8.30 am to 5.00pm. Over the Christmas school holiday period the lifeguard services are between 8.00 am to 6.00 pm.[3]
[3]Exhibit 4, Statement of Gary Ehsman, p.21 of Respondent bundle of documents.
A Dog Off-Leah Area (DOLA) operates between BA97 and BA98 during the hours of 5.00 am - 8.00 am and 5.00 pm - 8.00 pm.
Mr Till’s complaint
Mr Till claims that he and his two children have been indirectly[4] discriminated against by the Sunshine Coast Regional Council in the supply of services and/or in the administration of State laws and programs (Local Government Act), on the basis of his parental status,[5] family responsibilities[6] and association with persons of particular attributes, (the age and impairment of his children), and that his children have been indirectly discriminated against because of their age and impairment.[7] In essence Mr Till claims that the patrolled beach is not accessible because BA96 consists of steps, and BA98, although more physically accessible is not safe to access because of the DOLA.
[4]Anti-Discrimination Act 1991; s.11 defines indirect discrimination as: on the basis of an attribute a person imposes, or proposes to impose, a term - a) with which a person with an attribute does not or is not able to comply; and b) with which a higher proportion of people without the attribute comply or able to comply; and c) that is not reasonable. Term includes condition, requirement or practice, whether or not written.
[5]Op.cit; Schedule –Dictionary, parental status means whether or not a person is a parent.
[6]Op.cit; Schedule – Dictionary, family responsibilities of a person, means the person’s responsibilities to care for or support - a) a dependent child of the person; or b) any other member of the person’s family who is in need of care or support.
7.Op.cit; Schedule - Dictionary, impairment in relation to a person means (a) the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or (b) the malfunction, malformation or disfigurement of a part of the person’s body; or (c) a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or (d) a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or (e) the presence in the body of organisms capable of causing illness or disease; or (f) reliance on a guide, hearing or assistance dog, wheelchair or other remedial device; - whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that - (g) presently exists; or (h) previously existed but no longer exists.
After much discussion at hearing about the formulation of the ‘term’[8] that Mr Till claims the Respondent Council imposes, he agreed the following terms encapsulated his complaint:
[8]Indirect discrimination is generally said to be a ‘term’ that on the face of it appears neutral, but unwittingly disadvantages a person or group with particular personal characteristics. Complainants and the Courts have wrestled with the concept. However the High Court has stated ‘a requirement or condition should be given a broad or liberal interpretation’, and formulated ‘so as to cover any form of qualification or prerequisite’, Waters v Public Transport Corporation (1991) 173 CLR at 349,393. However, the Court has also found that it is necessary ‘to formulate the actual requirement with some precision’ to allow the respondent to properly respond. Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185.
Terms imposed
A]. To access the closest BA point to the patrolled beach, and to avoid the DOLA and dog faeces, people must use BA96.
B]. To access the ‘more accessible’ BA point to the patrolled beach people must use BA98.
Mr Till claims he and his children cannot comply with these terms, and he claims that a higher proportion of people without his attributes and his children’s attributes are able to comply; and that the terms are not reasonable.[9]
[9]Op.cit; s.11 (2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example a) the consequences of failure to comply with the term; b) the cost of alternative terms; and c) the financial circumstances of the person who imposes, or proposes to impose, the term.
Legislation
The Anti-Discrimination Act 1991 (Qld) prohibits direct[10] and indirect[11] discrimination on the basis of certain grounds[12], in certain areas[13] of public life, unless an exemption applies. Generally the burden of proof lies with Mr Till to prove, on the balance of probabilities, that the Respondent has contravened the Act. However when allegations involve indirect discrimination the burden shifts to the Respondent to prove, on the balance of probabilities, that a term complained of is reasonable.[14]
[10]Op.cit; s.10
[11]Op.cit; s.11
[12]Op.cit; s.7
[13]Op.cit; s.46 supply goods and services; s.101 administration State laws and programs
[14]Op.cit; s.204 and 205
Mr Till is therefore required to prove on the balance of probabilities that he and or his children have certain attributes, as defined, formulate and articulate the term or terms on which he claims the Respondent has imposed, and prove that people with the attribute do not or are not able to comply with the term and further, prove that a higher proportion of people without the attribute comply or able to comply. If Mr Tills proves these claims, the Respondent Council is required to prove that the terms imposed are reasonable, and if they are not, and the Tribunal is satisfied that there has been a breach of the law it may makes certain orders.[15]
[15]Op.cit; s.209
Attributes generally, and do Mr Till’s children have impairment?
It is not disputed Mr Till is a parent, has family responsibilities and is associated with children of a particular age. It is also not disputed Mr Till’s daughter is a few months short of 4 years and his son, nearly 2 years. However Mr Till also claims that both children have impairments in that, at the time of his complaint to the ADCQ, his son was unable to walk and relied on being carried or pushed in a pram, and his daughter was unable to walk up and down steps or steep inclines, fatigues quickly and is reliant on being pushed in a pram.[16] At hearing Mr Till testified that his children are not physically ill, and submitted that age was not excluded from the definition of impairment as the children had loss of bodily function in that they could not walk, stand-up or feed themselves. Mr Till further submitted that given the full definition of impairment includes whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes impairment that previously existed but no longer exists, then age is included. Mr Till provided no medical evidence nor did he refer the Tribunal to any cases that would support his proposition. The Respondent submitted it does not accept Mr Till’s contention that otherwise healthy children can be attributed as having impairment as prescribed under the definition. The Tribunal agrees with the Respondent. On an ordinary reading of the definition of impairment, it is clear impairment relates to the departure from a healthy state of being and or development, whether the departure arose from an illness disease or from a condition subsisting at birth, and whether it presently exists, or has previously existed but no longer exists. The Tribunal does not accept that children who are meeting their general developmental milestones are captured by the definition, and if it were to do so that would suggest that all children and even young adults who continue healthy development until their early twenties could be said to have impairment, either physically, mentally or emotionally. To accept Mr Till’s proposition would be a departure from a common understanding and acceptance of the interpretation of impairment, and make a mockery of the law. Moreover it would significantly undermine the experiences of discrimination that many people with impairment regularly encounter. The Tribunal is satisfied that Mr Till’s children do not have impairment as defined under the law and dismisses that part of his claim.
[16]Exhibit 1, p.28
Areas of discrimination
There was no dispute the Respondent provides ‘goods and services’ such as various types of beach access, and makes certain plans, policy, and local laws as provided for under the Local Government Act 2009, and thus captured by section 46 and 101 of the law.
The terms imposed
Firstly, Mr Till claims: To access the closest BA point to the patrolled beach, and to avoid the DOLA and dog faeces, people must use BA96.
Secondly Mr Till claims: To access the ‘more accessible’ BA point to the patrolled beach people must use BA98.
The Respondent denies it imposes such terms. However the Tribunal, in keeping with the broad objectives of the law and the courts liberal interpretation of terms to enable those objectives, accepts that those terms are imposed from Mr Till’s perspective and circumstances.
Is Mr Till not able to comply because of his parental status, family responsibilities or association with young children, or are his children not able to comply because of their age?
Mr Till claims that because of his parental status and his family responsibilities to care, support and defend his dependent children he is unable to traverse the stairs safely at BA96. Mr Till states he takes his children for a walk in their pram about 4 to 5 times per week early in the morning. Mr Till states he cannot get the double pram down the steps at BA96 and that he cannot carry both children safely down the steps because they are often wet and sandy. Mr Till claims his children are unable to walk or are unable to traverse up and down steps or steep inclines because of their age and thus they cannot access BA96.
Mr Till claims that because of his parental status and his family responsibilities to care, support or defend his dependent children he is unable to access BA98 because if he goes out walking with the children in their pram during the DOLA times there is a large number of dogs that run up and jump at you as you access the beach, and cause a higher risk of trauma, physically and emotionally, from the unrestrained dogs. Mr Till claims that he is at a greater disadvantage when he is with his young children, as he cannot fend off the dogs to prevent harm to himself or his children if required. Mr Till claims his young children are not physically, mentally or emotionally developed to safely intermix with a high concentration of unrestrained dogs and fend them off if necessary. Mr Till provides statistics that indicate children 0 - 4 years are at a much greater risk of dog bite injury requiring hospital admission (in Victoria 2005-07) than other age groups.[17]
[17]Exhibit1, p.46 (from Monash University: Victorian Injury Surveillance Unit, Edition 69, Summer 2009, p.6.
Mr Till also claims that he and his children cannot access BA98 when the DOLA is not operating because they would be exposed to sand contaminated by dog faeces as children play in the sand, suck their fingers and eat sand. Mr Till claims parents of young children and those with family responsibilities could not reliably stop their children contacting contaminated sand.
The Respondent submits entering the designated off-leash area is not a condition imposed on anyone with or without particular attributes as the DOLA operates in limited hours and that outside those hours dogs are not permitted off-leash. The Respondent submits any person may enter or exit the boardwalk without having to enter the DOLA. The Respondent rejects the claim the boardwalk is unsafe. Furthermore the Respondent submits that a pram cannot easily traverse the ‘chain and boardwalk’ as sandy dunal sections make up the last 10 metres of BA98. The Respondent submits that if there is any disadvantage it is not significant.[18]
[18]Exhibit 7, Respondent response p.10
Consideration
Whilst it is undisputed Mr Till’s children are of pre-school age and indeed very young when he first made his complaint to the Anti-Discrimination Commission, the Tribunal is not persuaded that the children are unable to comply with the terms Mr Till claims the Respondent Council imposes to access both BA96 and BA98 because of their age, but is rather mistaken as to the reason. Mr Till’s children have very limited development and independent skills. They can access very little on their own accord because of this skills deficit and they necessarily require adult or elder child supervision to get anywhere in the public domain as that is their lot at this stage of their lives. Consequently the Tribunal is satisfied any term imposed by the Respondent Council is in reality a term imposed on the accompanying carers, not the children indirectly because of their age.
Mr Till conceded he accesses the beach at BA98 when he goes surfing with mates, and there was no evidence presented that Mr Till could not easily traverse the steps at BA96. It is apparent Mr Till’s parental status in and of itself does not prevent him from complying with the terms. The definition of parental status is simple, ‘whether or not a person is a parent’. There is no extended requirement that a person is accompanied by a child, or of a particular age. However, Mr Till presents his claim with the intersecting attributes of parental status, family responsibilities and association with persons of a young age. The Tribunal broadly accepts that accompanying children or very young children is a characteristic that a parent generally has, or is imputed to have, and that taking children out as either part of a parent’s exercise regime or the children’s exposure to the outdoors, is part of Mr Till’s family responsibilities as he cares for and supports two dependant children. The attribute of family responsibilities under State anti-discrimination law is not confined to the area of employment as it is under the Commonwealth Sex Discrimination Act. The State law clearly intends a broader application. The Tribunal is therefore satisfied Mr Till is unable to comply with the terms imposed because of a characteristic of a parent (accompanying young children) and because of his family responsibilities to care for and support two dependant children, based on his concerns about safety.
Can a higher proportion of people without Mr Till’s attributes comply or able to comply?
Mr Till claims that a higher proportion of persons without his attributes, a parent with young dependant children and associated family responsibilities to safely care and support them, are able to comply with the terms imposed. Whilst Mr Till provided no direct evidence that was the case, at times the Courts have accepted a general presumption of disadvantage without relying on formal statistics in some indirect discrimination cases,[19] however at other times the Courts have required more direct evidence to prove that claim.[20] Mr Till submits that a higher proportion of people unaccompanied by children are able to traverse the steps at BA96 and a higher proportion of people unaccompanied by children are physically, mentally and emotionally able to coalesce with a high concentration of unrestrained dogs, fend them off if necessary and able to avoid contact with contaminated sand at BA98.[21]
[19]Hickie v Hunt and Hunt [1998] HREOC 8.
[20]Richardson v Oracle Corporation [2013] FCA102; State of NSW v Amery [2006] HCA14. 230 CLR 174.
[21]Exhibit 1, pp. 31,32,35.
The Respondent did not cross-exam Mr Till on this point and made no specific submission.
Consideration
Whilst the Tribunal accepts that in the general population it is probable that persons wishing to access BA96 and BA98 can comply with the terms as formulated can do so in a higher proportion, it is also arguable that not an insignificant number of people without Mr Till’s attributes share his safety concerns about either the steps at BA96 or DOLA near BA98. Mr Till has provided no demographic information of the ages, incidence of impairment or parental status of either the permanent residents of the Town of Seaside or of the holidaymakers who visit the Sunshine Coast. Also it is unclear whether a higher or lower proportion of people, without Mr Till’s attributes share his concerns about safety and sanitary conditions at the DOLA situated near BA98. It was undisputed that during an informal community consultation concerning the introduction of the DOLA in 2011 more people objected to its introduction than those who supported it. However any reasons for the objections have not been produced and neither has any breakdown of whether the objectors were residents or visitors to the area. It is also not inconceivable that a number of the elderly, the temporarily infirm or those with ongoing impairment cannot safely access BA96 because of the steps, or that a number of people accessing the beach at BA98 who are unaccompanied by children share Mr Till’s concerns about dogs running up to them, or stepping on dog faeces in the sand. However in keeping with the broad intention of the law to promote equal opportunity, and in light of no submission on this point from the Respondent, the Tribunal accepts the general premise that a higher proportion of people who are not accompanied by very young children can comply with the terms regarding BA96 and BA98.
Reasonable, or not reasonable?
The onus is on the Respondent Council to prove that the terms are reasonable.
The Respondent Council submits that any condition they impose in accessing the beach is reasonable.
In relation to BA98, the Respondent submits the DOLA was established under a proper local law making process whereby after receiving a Community Petition with over 400 people supporting it, at an ordinary meeting on 7 December 2011 the Respondent Council resolved to establish a dog off-leash area at the Town of Seaside under section 12 of Local Law 2 (Animal Management) 2011, as provided under the Local Government Act 2009. The Respondent submits 56 submissions were received under the formal consultation process, but acknowledges that an informal petition indicated 275 people opposed the establishment of a DOLA. Ultimately the Respondent Council established the DOLA between BA98 and 97 after the formal process and taking into account a public interest test and consulting with the State Government as owners of the land. Operation of the DOLA took effect from 1 January 2012. The Respondent submits that if the DOLA were to be altered, it would require a change to the Local Law with proper processes and reconsideration and resolution of the full Council.
The Respondent submits the DOLA does not encompass the boardwalk or dunal walkway leading to the beach at BA98 and notes that it only operates at limited times. The Respondent advised that dogs are not permitted, either on or off- leash, on the patrolled beach between the flags at any time. The Respondent submits there is appropriate signage[22] at BA97 and BA98 indicating the location and hours of the DOLA. The Respondent submits it seeks to balance the broader needs of the community.
[22]There was much discussion about the signage and its accuracy. The Tribunal accepts that there has been administrative error in the signage in the past but that has been corrected and overall impacted little on the issue of reasonableness.
Mr Gary Ehsman, Coordinator Holiday Parks and Lifeguard Services within Council, provided a Statement[23] and testified that the Lifeguard tower adjacent BA96 operates on a seasonal basis on all weekends and school and public holidays between the start of the September school holidays to the first weekend in May between the hours of 8.30 am to 5.00 pm. Mr Ehsman further testified however that between 12 December 2015 and 26 January 2016 the operating times were 8.00 am to 6.00pm. Mr Ehsman advised that Surf Life Saving Queensland is contracted to carry out patrol services at the beach. Mr Ehsman testified that from 16 September 2015 to 1 May 2016 the SLSQ operated services adjacent BA 96 for 121 days out of 224 days.
[23]Exhibit 4, Statement of Gary Wayne Ehsman, dated 6 October 2016.
Mr Eshman testified that all animals are excluded from the beach and foreshore, including bathing reserves, unless otherwise signed as either a leashed or unleashed area. Mr Eshman advised SLSQ have delegation to implement Local Laws to keep dogs out of the area.
Mr Eshman testified that ordinarily flags are set up within the best line of sight and in accordance with the surf conditions, and that is usually within 50 metres north or south of BA96. Mr Eshman testified that whilst he had never seen the flags set-up in the DOLA area he stated that if that was to occur then the flags would take precedence and dogs would not permitted between the flags.
Mr Leon Marskell, Coordinator Response Services, within the Respondent Council provided a Statement[24] and testified that the DOLA between BA98 and BA97 does not, and never has encompassed the boardwalk or sandy access within the dunal area between the end of the boardwalk and the beach itself at BA98.
[24]Exhibit 5, Statement of Leon Marskell, dated 6 October 2016.
Mr Marskell explained that any dog off-leash outside the designated area would be non-compliant and enforcement action could be taken against an owner in accordance with the Local Law 2 (Animal Management) 2011.
Mr Marskell testified that between 1 January 2012 to 31 December 2015 there has been zero reported dog attacks on DOLA between BA98-97. He further testified that for the same period there have been 7 reports of attacks within the Town of Seaside residential area and 76 complaints related to dogs off-leash within the Town of Seaside. Mr Marskell stated that 17 infringements and 10 cautions/warnings have been issued broadly for the Town of Seaside for ‘animal not under effective management in a public space’. Mr Marskell clarified on cross-examination that his interpretation of ‘effective management of an animal in a public place’[25], will depend on the individual circumstances. Mr Marskell explained when investigating an attack the burden of proving the attack is on Council and so it must look at the whole picture.
[25]Exhibit 3, Sunshine Coast Regional Council Local Law No.2 (Animal Management) 2011, Parts 2 - 4 outlines the meaning of effective management, the keeping of animals and the management of animals in public places.
Mr Marskell also testified that the Respondent Council carries out proactive compliance checks through foot patrols and on the beach itself via all-terrain vehicles. Mr Marskell testified that 5583 checks were undertaken across the region, including 56 at the DOLA between BA98-97 between 1 January 2015 and 5 October 2016. Mr Marskell testified officers undertake patrols between 6.00 am to 6.00 pm.
Mr Marskell testified that overall the number of dogs was less in the Town of Seaside than other Council areas, received less complaints and less patrols were necessary. Mr Marskell also testified that Council has received no complaints about dog faeces in the area.
In relation to the death of a kangaroo on the beach at the DOLA,[26] on cross-examination Mr Marskell stated that the information contained in the Sunshine Coast Daily article was incorrect. Mr Marskell testified that Council was notified of a potential dog attack on a kangaroo around 6 - 8 weeks ago. Mr Marskell testified that Council investigated the matter after the owners of the dogs notified the Council within 15 minutes of the incident, whereby their dogs took chase of a kangaroo that had found its way onto the beach. Mr Marskell testified the owners and a third witness were interviewed. Mr Marskell stated that the investigation concluded the incident was an unfortunate incident and that the kangaroo had drowned having taken flight into the surf. Mr Marskell testified that the kangaroo had no evidence of injury or dog attack.
[26]Exhibit 2, Additional submission of the Applicant, dated 2 November 2016
Mr Marskell testified that of the around 60 kilometres of coast line in the Council region, there are around half a dozen DOLA, at the open surf beaches of North Shore, Twin Waters, Marcoola, Peregian, Coolum and Seaside. Mr Marskell clarified that Mooloolaba to Maroochydore beaches have no dog off-leash areas, but have some on-leash areas, whereas at Kings Beach dogs are totally prohibited. Mr Marskell stated that these differences have occurred because of historical bathing reserve gazetted notices.
In relation to BA96, Michael Kohne, Integrity Management Officer, within the Respondent Council, submitted[27] and testified that the boardwalk provided at BA96 was funded and built by Stockland Development Pty Ltd, and that final approval was issued on 16 August 2006 by private certification.[28] At hearing Mr Kohne clarified that before the boardwalk ‘came-off maintenance’, that is became a council controlled asset, the BA96 was originally constructed with a chain and boardwalk installation similar to that at BA98. However, Mr Kohne further testified that natural forces undermined that construction on two occasions, and so the steps at BA96 were installed as a replacement prior to the construction becoming a controlled asset of the Respondent Council.[29] Mr Kohne submitted that BA96 conditions remains variable due to prevailing beach and weather conditions, and highlights the photographs currently showing BA96 with only four steps[30] to the beach compared to the Applicant’s earlier photograph showing BA96 with double the number of steps with a sign warning to ‘watch your step’.[31]
[27]Exhibit 7, submission Michael Kohne, dated 10 September 2016. *A correction was noted at hearing regarding para 34, that is: Mr Kohne stated he believes Council was involved in a small part of the construction.
[28]Exhibit 7, Attachment B.
[29]Exhibit 6, emails between Council Officers dated 20 -21 January 2009; and Exhibit 7, Attachment C.
[30]Exhibit 7, p.7 photograph
[31]Exhibit 1, p.4 photograph
Mr Till submits the terms are not reasonable. In summary, Mr Till submits that the most serious form of discrimination is that which endangers life of the most vulnerable. Mr Till submits it is unreasonable that dogs have been considered more important that the safety of vulnerable people. Mr Till also submits that although everyone is at a general risk of dog attack, the risk is not equal as statistics clearly indicate children aged 0 - 4 years are more at risk of mortality, bites and hospitalisation.[32] Furthermore Mr Till submits the DOLA relies on the dogs being under ‘effective management’ and ‘direct supervision’ and that is not reliable, encompasses too many variables and is unachievable particularly in the dark. Mr Till further submits that Council’s requirements for fenced Dog Off Leash Parks have higher safety and location placement requirements than those at the beach,[33] and that difference is not reasonable. Mr Till submits that the area is a designated Community Hub,[34] that BA98 is the only pram accessible beach access and that it is not vital to have a DOLA at those points.
[32]Exhibit 1. p. 47
[33]Exhibit 1, p.13
[34]Exhibit 7, p.11 The Respondent Open Plan Strategy defines ‘community hub’ as ‘the provision of a variety of community facilities and functions on one or more lots in close proximity. The aim is to encourage compatible uses, increased activity and flexibility, and to assist residents of a community to meet their social needs within a defined geographical area.’
Consideration and decision
The Anti-discrimination law states that whether a term is reasonable depends on all the relevant circumstances of the case including the consequences of failure to comply, the cost of alternative terms, and the financial circumstances of the person imposing the term.
Mr Till moved into his home at the Town of Seaside in early 2011. He claims the Respondent Council’s terms imposed in accessing BA96 (steps) and BA98 (DOLA) are not reasonable, because of safety concerns regarding dogs around young children, and physical safety traversing steps with young children and/or prams.
The Respondent Council submits that access to BA96 is the only sustainable mode because of variable natural forces, and that there is an alternate more accessible access point at BA98 that is safe.
The Respondent Council submits that the access to BA98 is reasonable because it is more physically accessible with a boardwalk and then rails and chains to the beach, and that whilst a DOLA operates nearby there have been zero reports of a dog attack or complaints of faeces on the beach since its establishment. The Respondent submits the DOLA operates for limited hours and other than half an hour during peak Christmas season, operates outside of the patrolled beach hours. Moreover, the Respondent submits the DOLA was established under Local Law processes that involved community consultation, public interest test and consultation with the State government and consideration and resolution of the full Council.
Whilst Mr Till denies that he is pursuing this matter because of some ‘bizarre dislike of dogs’[35] Mr Till’s complaint, statement, testimony and submissions particularly focus on the general existence of the Dog Off Leash Area rather than the operation hours of the patrolled beach. Mr Till testified that he likes to take his children out in their pram for an early morning walk prior to his workday, 4 or 5 times a week, and again after work. Both times coincide with the operation hours of the DOLA, and Mr Till testifies that he avoids accessing the beach via BA98 at that time, and cannot traverse the stairs safely at BA96 with the children in a pram. Mr Till states on weekends he takes the children for walks when the DOLA is not operating. The consequences of Mr Till’s inability to comply with the term associated with BA98 and BA96 is that he cannot take his children in their pram, or walk them on the beach in the early hours of the morning or early evenings during the week. Mr Till can access the boardwalk and footpaths along the coastal way with his children, and he can access the patrolled beach for almost the full hours of its operations subject to the usual variables of family commitments such as work or child-care. Whilst the Tribunal acknowledges Mr Till’s preference to access the beach in the early hours with his children in a pram, the Tribunal is not persuaded that this is a major disadvantage to Mr Till, nor whether it is a permanent disadvantage, as like many families his children will grow and other family commitments may intervene with this current preference. Also the concern about the DOLA on the face of it appears very specific to Mr Till and those who may share his concerns.
[35]Exhibit 1, p.18 para 46. Mr Till however describes a dog attack and sustaining a puncture on his leg, when riding his pushbike along another beach in July 2011. See p.16, para 35.
In relation to the cost of alternative terms in relation to the current access arrangements at BA96 and BA98, the Tribunal accepts that the DOLA was established under a Local Law process that involved community consultation, applying a public interest test and consulting with State Government, and a resolution of the full Council. Tribunal also accepts that change to the Local Law will require a repeat of the process. Mr Till was a resident of the Town of Seaside during this initial process and although during this proceeding it was not ventilated as to whether he engaged in the Local Law process or not, there was clearly an opportunity for Mr Till to do so. Establishing Local Laws can at times involve long periods of consultation and or deliberations, and require the elected Councillors to consider how the Local Laws will impact the whole community that they serve.
The Tribunal accepts the largely uncontested[36] statistics presented by Mr Ehsman as a true representation of the reports the Respondent Council has received about the DOLA. In relation to the Town of Seaside, the Respondent has received zero reported dog attacks since its establishment, no complaints about dogs faeces, and reports a lower density of dogs and dog off-leash complaints than other areas in the Council region. It is apparent to the Tribunal Mr Till has a level of concern about the safety of children around the DOLA that the majority of other users of the beach do not necessarily share. The low level of incidents reported indicates that DOLA is operating at a satisfactory safety level, without major incident and to a level others in the community have seemingly tolerated given the regular patrols and the available enforcement processes. Whilst the Tribunal was not presented with any direct financial costs to change the location of the DOLA from BA98, it is apparent there would be costs associated with undertaking another Local Law process, and the Tribunal is satisfied that it would not be reasonable to do so without significant support of the community involved, notwithstanding the Respondent Council manages a very large budget[37], derived in part from ratepayers and visitors through rates and charges. Furthermore the Tribunal is satisfied it is open to Mr Till to persuade other residents, start a petition and lobby the local councillor for change. This is an open and democratic path for change to local laws.
[36]Exhibit 1, p44 and 45, Mr Till’s submissions relate to views about context of statistics, whether dog on dog attacks are reported, and opines the vast majority of dog attacks go unreported to Council and therefore the numbers are likely to be five times higher.
[37]Exhibit 1, p.40, Mr Till states the Council annual budget last financial year was $588 million.
Mr Till provided numerous on-line links to reports and opinions concerning dog attacks and statistics around reporting dog attacks. Whilst the Tribunal does not disregard these for the general information they contain, the Tribunal accords them only little weight, as the Tribunal’s task was focussed on the reasonableness of the the terms Mr Till claims the Respondent Council imposes in accessing BA96 and BA98.
Overall the Tribunal is satisfied that the term imposed as formulated in regards to BA98, with its boardwalk and chains within close proximity a DOLA operating for limited hours, and in the main outside the patrolled beach hours, and which has had since its establishment had limited complaints concerning it, and which was established under Local Law, is reasonable.
Overall the Tribunal is satisfied that the term imposed as formulated in regards to BA96, with its variable number of steps subject to climate variability and nature’s forces, is reasonable.
Order
That the complaints are dismissed.
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