WEEDON and SHIRE OF MURRAY
[2006] WASAT 128
•23 MAY 2006
WEEDON and SHIRE OF MURRAY [2006] WASAT 128
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 128 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:594/2005 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (MEMBER) | 23/05/06 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | The applications for review are dismissed The decisions under review are affirmed | ||
| B | |||
| PDF Version |
| Parties: | ROBIN JOHN WEEDON SHIRE OF MURRAY WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning – Development approval for private jetty – Proposed jetty to be built on Crown land in waterway and in public reserve Peel Region Scheme and local planning Scheme operating together Whether approval under Scheme could ever override approval under Town Planning Scheme Different but consistent zonings or reservations under region and local Schemes Refusal under both Schemes Whether refusal under region Scheme necessarily determines the matter Inconsistency between Schemes discussed Ownership of land Status of land as a managed reserve Whether consent of owner manifested Consideration of the purposes of various reservations Public purposes of reservations Conservation, recreation and visual amenity aspects of proposal Application not made as required by Scheme Consultation with public authorities under region Scheme Whether local government a public authority Another public authority adopting a written policy of no further jetties to be built on river Policy adopted to hold the line against further despoliation of river Whether policy ought to be applied No evidence of material or relevant departure from policies by regulatory authorities Policy applied by Tribunal Proponent suffering a spinal disability Discrimination alleged under international law Whether international law applicable to review Equal treatment of applicant Applications refused Words and phrases: "inconsistency "; "public authority" |
Legislation: | Disability Discrimination Act 1992 (Cth) Environmental Protection Act 1986 (WA) Equal Opportunity Act 1984 (WA), Pt IVA Jetties Act 1926 (WA), s 8 Land Act 1933 (WA) Land Administration Act 1997 (WA), s 41, s 46, s 91, s 92, Sch 2 cl 16 Peel Region Scheme, cl 2, cl 2(1), cl 3, cl 5(a), cl 6(c), cl 7, cl 9, cl 10, cl 10(a), cl 10(e), cl 10(g), cl 18, cl 19, cl 19(g), cl 28(b), cl 30(1), cl 30(3), cl 33, cl 33(1), cl 33(2), cl 34, cl 34(h), cl 34(k), cl 34(zc) Planning and Development Act 2005 (WA), cl 2(1), s 4(1), s 33(2), Pt 9 Shire of Murray's Town Planning Scheme No 4, Pt 12 State Administrative Tribunal Act 2004 (WA), s 27, s 32 Strata Titles Act 1985 (WA), s 36 Town Planning and Development Act 1928 (WA), s 2(1) Transfer of Land Act 1893 (WA), s 70A Water and Rivers Commission Act 1995 (WA) |
Case References: | Australian Real Estate Investment Ltd v Western Australian Planning Commission; Australian Real Estate Investment Ltd v City of Armadale (2003) 33 SR (WA) 307 Australian Real Estate Investment Ltd v Western Australian Planning Commission; Australian Real Estate Investment Ltd v City of Armadale [2003] WATPAT 70 Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47 Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission and Anor (1998) 89 FCR 17 Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76 Edward David Webster and Wayne Colin Duff And Victor John McIntosh (1980) 49 FLR 317 Foreign Affairs and Trade, Minister for v Magno (1992) 37 FCR 298 JB Investments Pty Ltd and Valuer General [2006] WASAT 55 Kavanagh's Application, Re (2003) 78 ALJR 305 Marshall v MacTiernan (Minister for Planning and Infrastructure) (2002) 124 LGERA 118 Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1 Riviera Properties Projects PL v East Gippsland SC [2004] VCAT 2605 State of New South Wales v Amery [2006] HCA 14 Tooth and City of Subiaco [2005] WASAT 317 Deane-Spread and Shire of Mundaring [2005] WASAT 117 |
Orders | 1. The applications for review are dismissed.,2. The decisions under review are affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : WEEDON and SHIRE OF MURRAY [2006] WASAT 128 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 MAY 2006 FILE NO/S : DR 594 of 2005 BETWEEN : ROBIN JOHN WEEDON
- Applicant
AND
SHIRE OF MURRAY
Respondent
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
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Catchwords:
Town planning – Development approval for private jetty – Proposed jetty to be built on Crown land in waterway and in public reserve Peel Region Scheme and local planning Scheme operating together Whether approval under Scheme could ever override approval under Town Planning Scheme Different but consistent zonings or reservations under region and local Schemes Refusal under both Schemes Whether refusal under region Scheme necessarily determines the matter Inconsistency between Schemes discussed Ownership of land Status of land as a managed reserve Whether consent of owner manifested Consideration of the purposes of various reservations Public purposes of reservations Conservation, recreation and visual amenity aspects of proposal Application not made as required by Scheme Consultation with public authorities under region Scheme Whether local government a public authority Another public authority adopting a written policy of no further jetties to be built on river Policy adopted to hold the line against further despoliation of river Whether policy ought to be applied No evidence of material or relevant departure from policies by regulatory authorities Policy applied by Tribunal Proponent suffering a spinal disability Discrimination alleged under international law Whether international law applicable to review Equal treatment of applicant Applications refused Words and phrases: "inconsistency "; "public authority"
Legislation:
Disability Discrimination Act 1992 (Cth)
Environmental Protection Act 1986 (WA)
Equal Opportunity Act 1984 (WA), Pt IVA
Jetties Act 1926 (WA), s 8
Land Act 1933 (WA)
Land Administration Act 1997 (WA), s 41, s 46, s 91, s 92, Sch 2 cl 16
Peel Region Scheme, cl 2, cl 2(1), cl 3, cl 5(a), cl 6(c), cl 7, cl 9, cl 10, cl 10(a), cl 10(e), cl 10(g), cl 18, cl 19, cl 19(g), cl 28(b), cl 30(1), cl 30(3), cl 33, cl 33(1), cl 33(2), cl 34, cl 34(h), cl 34(k), cl 34(zc)
Planning and Development Act 2005 (WA), cl 2(1), s 4(1), s 33(2), Pt 9
Shire of Murray's Town Planning Scheme No 4, Pt 12
State Administrative Tribunal Act 2004 (WA), s 27, s 32
Strata Titles Act 1985 (WA), s 36
Town Planning and Development Act 1928 (WA), s 2(1)
Transfer of Land Act 1893 (WA), s 70A
Water and Rivers Commission Act 1995 (WA)
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Result:
The applications for review are dismissed
The decisions under review are affirmed
Category: B
Representation:
DR 594 of 2005
Counsel:
Applicant : Selfrepresented
Respondent : Ms C Ide
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
DR 625 of 2005
Counsel:
Applicant : Self-represented
Respondent : Mr M Selby
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Australian Real Estate Investment Ltd v Western Australian Planning Commission; Australian Real Estate Investment Ltd v City of Armadale (2003) 33 SR (WA) 307
Australian Real Estate Investment Ltd v Western Australian Planning Commission; Australian Real Estate Investment Ltd v City of Armadale [2003] WATPAT 70
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Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47
Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission and Anor (1998) 89 FCR 17
Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76
Edward David Webster and Wayne Colin Duff And Victor John McIntosh (1980) 49 FLR 317
Foreign Affairs and Trade, Minister for v Magno (1992) 37 FCR 298
JB Investments Pty Ltd and Valuer General [2006] WASAT 55
Kavanagh's Application, Re (2003) 78 ALJR 305
Marshall v MacTiernan (Minister for Planning and Infrastructure) (2002) 124 LGERA 118
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44
Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1
Riviera Properties Projects PL v East Gippsland SC [2004] VCAT 2605
State of New South Wales v Amery [2006] HCA 14
Tooth and City of Subiaco [2005] WASAT 317
Case(s) also cited:
Deane-Spread and Shire of Mundaring [2005] WASAT 117
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Summary of Tribunal's decision
1 This review concerned the construction of a jetty for recreational purposes on the banks of the Murray River in South Yunderup.
2 Mr Weedon, the applicant, suffered from a spinal condition following an accident at work and is disabled. He sought to build the jetty for his private recreational purposes near to where he lived. There are a number of other such private jetties in the vicinity. Nevertheless, the regulatory authorities, namely the Western Australian Planning Commission and the Shire of Murray, refused him permission to build his jetty.
3 They did so essentially because of the public status of the land upon which the jetty would be built. (The land was Crown or State land and part of it was directly managed by the Shire of Murray.) But they also had concerns about the impact of the proposal on access to the river and on conservation values and with respect to various amenity issues. Also, another relevant government authority had a policy which recommended that no new private jetties be built, a policy based on similar concerns. That policy was followed by the Western Australian Planning Commission and the Shire of Murray.
4 The Tribunal, in reviewing these decisions, agreed with the position of the regulatory agencies and refused to overturn the Western Australian Planning Commission's and the Shire of Murray's decisions, finding that they were rationally made and supportable in terms of the planning framework and the material before the Tribunal. Mr Weedon's personal circumstances did not outweigh those matters.
5 The Tribunal made some observations on the complex interrelationship of the various planning instruments and related questions of ownership, consent and control. It decided that, in this case, the answer to the question of whether the Western Australian Planning Commission's decision was correct, necessarily also determined the answer to the question of whether the Shire of Murray's decision was correct.
6 Mr Weedon also claimed that a refusal to allow him to build the jetty would have the effect of unlawfully discriminating against him under international law. The Tribunal rejected this argument, in doing so pointing to the equal treatment that he had received in the matter.
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7 In the result, as Mr Weedon was unsuccessful in his reviews, both of his applications for review were dismissed.
Introduction
8 Mr Weedon (applicant) has sought review of a decision of the respondent, the Western Australian Planning Commission (WAPC) to refuse an application to construct a private jetty on Crown land on the banks of the Murray River in South Yunderup. There is also a concurrent review sought of a similar decision made by the Shire of Murray (Shire) under the Shire's Town Planning Scheme No 4 (TPS 4). The decisions were made on 8 November 2005 and 28 September 2005, respectively.
9 The subject land is located on the Murray River at a point opposite to Lot 72 Banksia Terrace, South Yunderup, a few kilometres from the Peel Inlet. The subject land appears to be comprised of both Crown land in the Murray River itself and the land adjacent to the proposed jetty site. The latter land is controlled by the Shire, and both pieces of land are reserved for various public purposes under the principal planning instrument, the Peel Region Scheme (PRS).
10 The applicant has a significant back injury and the purpose of the jetty would be to enable him to engage in convenient private recreation in connection with access to the river.
11 The Tribunal ordered that the matter was to be determined on the documents, and all of the parties subsequently filed comprehensive written submissions and supporting material.
Issue before the Tribunal
12 The central issue for consideration before the Tribunal is whether the applicant's jetty proposal ought to be approved, in the proper exercise of discretion, under the principal planning instrument, namely the PRS.
13 However, before discussing that exercise of discretion, it will be necessary to make some observations on the interrelationship of the various planning controls as regards the ownership and control of the subject land. These matters turn out to be far from straightforward.
The applicable planning instruments
14 The review is, as is indicated above, chiefly governed by the PRS which is an instrument, namely a "regional planning scheme", "prepared" and administered by the WAPC, and continued in force by,
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- and having effect "as if it were enacted", under the recently commenced Planning and Development Act 2005 (WA) (PD Act) as a "region planning scheme": see s 33(2) of the PD Act.
15 The PRS applies to the Shire and other areas "as shown on the Scheme map" (see PRS cl 3). Importantly, the PRS overrides, to the extent of any inconsistency, any local government town planning scheme, that is, TPS 4 (see cl 7). However, in relation to applications for planning approval, consultation with other "public authorities" is permitted or required (in the later case when land is reserved for use by a public authority): see cl 33 of the PRS.
16 In relation to the present application for planning approval, that consultative process has taken into account the negative views of the Shire and other public bodies. This is a matter that the Tribunal will return to below.
The interrelationship of the PRS and the local scheme
17 In the Tribunal's view, the fate of both applications for review must be determined by the correct and preferable decision reached in relation to the applicant's application for development or planning approval under the PRS. Amongst other things, it would not seem possible, by reason of the operation of cl 7 referred to above, for the Shire (or, on review, this Tribunal), acting under the local planning scheme, to grant an approval for development under TPS 4 which would be inconsistent with a refusal to undertake the same activity under the PRS.
18 In the Tribunal's view, this is not a case where there is "the combined operation" of two approval regimes each of which "deal[s] with a different topic", thus creating "a situation of [possible] deadlock [but one which] does not give rise to inconsistency": Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47 at 58 59. Similarly, in this case, the interrelationship of the two schemes is not, in the Tribunal's view, like that between the Metropolitan Regional Scheme and a local planning scheme where the former:
"is clearly intended to provide a broad general blueprint to guide and coordinate the overall planning and development of the metropolitan region. Within that broad and general blueprint, it is left to the very many town planning schemes of the local governments within the metropolitan region to regulate that planning and development in a more particular and detailed manner, and with appropriately greater attention to the precise
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- local planning needs of particular localities and communities.": Marshall v MacTiernan (Minister for Planning and Infrastructure) (2002) 124 LGERA 118 at 127 (FC, WA).
19 In coming to this conclusion, it is not necessary to choose between whether cl 7's resolution of the avoidance of repugnancy operates to deny power to make or sustain an inconsistent local planning scheme (or purported acts thereunder) or whether it attributes an overriding effect to the PRS: Cf Edward David Webster and Wayne Colin Duff And Victor John McIntosh (1980) 49 FLR 317 at 321 (Brennan J). The use of the term "prevails over" in cl 7, however, suggests that the drafter envisioned the latter, at least in the ordinary case. See also Pt 9 of the PD Act which governs some aspects of the relationship between local and region planning schemes.
20 On the other hand, were there to be approval granted under the PRS, then to adapt the principle expressed by the Privy Council: "Prima facie[,] restrictions imposed by [the Shire] … and those imposed under a planning scheme [would be] cumulative": Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76 at 80 (PC). See also Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 where the Tribunal said, at [87]:
"The Tribunal finds that the grant of approval for a development under a region planning scheme is a relevant consideration in relation to whether to grant approval for the development under a local planning scheme."
21 In that case, the Tribunal refused approval under the local planning scheme despite there being an approval in existence under the PRS.
22 In light of the Tribunal's refusal to approve the applicant's planning proposal under the PRS, it is unnecessary to explore these questions further. Necessarily, upon the reasoning of the Tribunal just outlined, an application for review of that secondary decision of the Shire must also be dismissed, where the principal (that is, the PRS) review is dismissed.
23 That does not mean, however, that the matters raised by the Shire cease to be relevant to the review. On the contrary, its views are of some importance in determining the matter.
The Peel Region Scheme
24 Under the PRS, the subject land is "reserved land" because, as appears below, it is "land reserved under the [PRS] for a [specified PRS]
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- public purpose". Part of the land also appears to be "reserved land owned by or vested in a public authority": see the respective definitions of these terms in cl 2.
25 Terms in the PRS are also defined in corresponding terms to those in the PD Act (or in equivalent terms in its predecessor, the Town Planning and Development Act 1928 (WA)): cl 2(1). A "public authority" is defined in the PD Act to include a "department of the Public Service". This is also a matter that it will be necessary to return to below.
26 The first stated purpose of the PRS is to provide for "the reservation and protection of land for regional transport, conservation, recreation and public uses": cl 5(a). The stated "aims of the [PRS]" include, amongst other matters, protecting as regional open space "the foreshores of the Serpentine, Murray and Harvey Rivers … ": cl 6(c).
27 Certain lands, including the subject land, are reserved under the PRS for specified public purposes: cl 9 and cl 10. These include "Waterways", the purpose of which is "to recognise permanently inundated inland and coastal lands below the high water mark, and existing and proposed water canals": cl 10(e).
28 According to the WAPC, the PRS operates to reserve (and also to classify) the subject land as within a "Waterways" reservation. So it appears, according to the PRS maps (see sheet 6). Under the now repealed Town Planning and Development Act 1928 (WA) s 2(1), a "waterway" was defined to mean "an artificial channel, lake, harbour or embayment, for navigational, ornamental and recreational purposes, or for any of those purposes; and includes any addition to or alteration of a waterway as so defined". That definition was in force when the PRS came into force, but it is not reproduced in the PD Act, except in relation to the definition of an "artificial waterway": PD Act, s 4(1); cf cl 19(g) of the PRS referred to below, which refers to an "artificial waterway".
29 But that map sheet 6, read with the applicant's sketch plan, also seems to show that the jetty will be affixed to, or otherwise built upon, land classified as "Regional Open Space", the purpose of which is "to protect the natural environment, provide recreational opportunities, safeguard important landscapes and provide for public access": cl 10(a).
30 It is worth mentioning at this point that, under TPS 4, the land is shown as "Local Scheme Reserve Public Recreation/Conservation". It is also regulated under TPS 4 as part of the Murray River floodway:
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- see Pt 12 of TPS 4. Neither of these development and use controls would seem, on their face, to be inconsistent with the PRS.
31 The status of that land as a managed reserve is considered in more detail below.
32 Under cl 18 of the PRS, "planning approval" issued by the WAPC (or, on review, by this Tribunal) is necessary before a person commences or carries out "development on reserved land". (In contrast, for certain cases concerning private jetties in "artificial waterway[s]" on reserved land, approval is not required: see PRS cl 19(g) deferring to compliance with any "adopted policy" of the local government. No such policy apparently exists here.)
33 In any event, it is common ground here that cl 18 is applicable in relation to the applicant's jetty proposal.
34 An application for planning approval under cl 18 is, amongst other things, to be "signed by the owner of the land on which the development is proposed": cl 28(b). This issue is touched upon further, below.
35 The application "is to be lodged with the local government in whose district the land that is the subject of the application is situated": cl 30(1). The local government is to forward the application to the WAPC, and "may make recommendations to the [WAPC] regarding [the] application": cl 30(3).
36 Here, an application for planning approval was lodged directly with the WAPC on "23 [or 24] June 2006" and was apparently "received on 22 July 2005". It appears that, in early September 2005, an identical application for planning approval, dated 24 June 2005, was made to the Shire under TPS 4. No "recommendations" were thus received from the Shire under cl 30(3), but its views were formally obtained.
37 Nothing turns upon the various dates of these applications. Nor is it material to this review that cl 30(1) was apparently not complied with.
38 As has been mentioned, consultation with other "public authorities" is permitted or required (in the latter mandatory case, when land is reserved for use by a public authority) under cl 33 of the PRS. Curiously, no provision appears in cl 9 and cl 10, dealing with reserved lands, for "land [to be] reserved under [the PRS] for the purposes of a public authority": cl 33(2). Clause 10(g) does, however, permit reservation "for other public purposes", which expression seems wide enough to include
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- land reserved for the purposes of a public authority. However, that was not done here.
39 Under cl 19, reserved land owned by or vested in a public authority may be used by the public authority without the approval of the WAPC if it is used for the purpose for which it is reserved under PRS or "for any purpose for which the land may be lawfully used by the public authority". No party has sought to consider, still less invoke, cl 19, and it may be put to one side for the purposes of this review.
40 As appears below, the subject land, at least that part of it to which the proposed jetty is to be affixed (that is, the land adjacent to the river foreshore), appears to be reserved land owned by or vested in a public authority (in terms of the definition set out above).
41 Here, as mentioned already, the Shire was formally consulted, as was the Department of Environment and a branch or section ("New Coastal Assets") of the Department of Planning and Infrastructure (who raised no objection to the applicant's proposal). The Shire undertook its own consultations with the WAPC and the Department of Environment.
42 As will appear below, the results of consultation with the Department of Environment, a process contemplated by the PRS under cl 33(1) ("the [WAPC] may consult on a proposed development with any public authority it considers appropriate"), is a significant element in this review.
43 Presumably, the Shire was consulted as a public authority under one of the limbs of cl 33 of the PRS.
Is the Shire a relevant "public authority"?
44 There is a very similar definition of "public authority" in the Environmental Protection Act 1986 (WA) (EP Act) to that referred to above. Nevertheless, the EP Act expressly extends to incorporate "local government". Notwithstanding this, it may be accepted that the Shire is a public authority within the meaning of cl 33 of the PRS: cf, for example, Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1 where Anderson J accepted that a local government authority was, following wellestablished precedent, a public authority at common law. See also the definition in the PRS, referred to above, of "reserved land owned by or vested in a public authority" and cl 19 (mentioned above); but cf s 70A of the Transfer of Land Act 1893 (WA) and s 36 of the Strata Titles Act 1985 (WA) both of which continue to draw a dichotomy between the two terms.
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45 However, even if the Shire were not a "public authority" within the meaning of the PRS, its views, so far as they were relevant, could be considered under the "any other planning consideration" factor mentioned in cl 34(zc). (Clause 34 deals with the matters which are to be considered when determining an application for planning approval, and is referred to below.)
46 In the Tribunal's view, the fact that the Shire's views were not received by way of possible recommendation (not itself a mandatory step) under cl 30(3), would not disentitle either the WAPC or this Tribunal from receiving the Shire's views in one form or another, whether by reason of consultation under the PRS, or under cl 34(zc). Clearly, the PRS was designed to interlock, as far as applicable, with local government regulation in the area of the PRS, and this result would be consistent with that aim. This is especially so where the Shire has control and management over part of the subject land. Moreover, the Tribunal has its own powers which would enable that course (that is, receiving the Shire's evidence): cf s 27 and s 32 of the State Administrative Tribunal Act 2004 (WA).
Status of the land
47 As is mentioned above, the owner of the land is the Crown in right of Western Australia. The land is both "Crown land" and land which is a "managed reserve" within the meaning of the Land Administration Act 1997 (WA) (LA Act), at least as to part of the subject land (that is, land adjacent to the river foreshore).
48 In respect of the river foreshore and adjacent land, the original "Vesting Order" from 4 July 1995 made under the (now repealed) Land Act 1933 (WA) has been produced in evidence. That order directs that "Reserve No 26735 [which includes the subject land] … vest in and be held by the Shire of Murray for the designated purpose of 'Public Recreation'". See now: s 41, s 46 and cl 16 of Sch 2 of the LA Act, provisions which, in effect, sustain such orders.
49 The Crown, acting through the Department of Planning and Infrastructure, has given what appears to be a conditional consent. This was expressed as consent for "facilitat[ing the] processing" of the applicant's application under the PRS. The Shire, which has "the care, control and management" of part of the subject land, does not appear to have expressed a view on this particular issue. The Shire has, however, suggested that there might be difficulties with the ultimate private
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- "leas[ing] or licen[sing]" of the subject land in terms of its legal consistency with the status of the land as a "managed reserve".
50 See also the separate licensing regime required under s 8 of the Jetties Act 1926 (WA) (Jetties Act), where private jetties are not to be maintained except pursuant to licence or lease granted under that Act. Presumably, if development approval were given and a regulatory licence were granted under the Jetties Act, a licence might also be issued under s 91 of the LA Act, and at the expiration thereof, all improvements (that is, the jetty) would vest in the Crown: s 92 of the LA Act.
51 In the circumstances of this review, it is, however, unnecessary to consider these issues further, as no actual point has been taken about either the ownership of or consent in relation to the subject land, and both respondents are content for the Tribunal to review the merits of the matter.
52 Thus, it is unnecessary to explore the issue arising, for example, in Australian Real Estate Investment Ltd v Western Australian Planning Commission; Australian Real Estate Investment Ltd v City of Armadale [2003] WATPAT 70 where the former Tribunal considered interlocutory arguments relating to an alleged "legal impossibility" in relation to the proposed use of certain reserved land.
53 The relevant argument there was "that the nature of the appellant's application would involve the use of reserve lands for purposes other than that for which they were created and other than that for which at present the [respondent local government authority was] the relevant management body". (But cf cl 19 of the PRS referred to above.) There are echoes of this problem in the Shire's position, mentioned above.
54 However, these considerations were held to be insufficient to prevent the Tribunal considering the application there under review. See also: Australian Real Estate Investment Ltd v Western Australian Planning Commission; Australian Real Estate Investment Ltd v City of Armadale (2003) 33 SR (WA) 307(dealing with a separate but related interlocutory issue of consent by the owner arising out of the status of the land as a managed reserve).
55 Nevertheless, the status of the land as Crown land and its reserved status for certain public purposes (under the PRS, TPS 4 and the LA Act) is still relevant to the decision to be made by the Tribunal.
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The respondent's case on review
56 Essentially, the WAPC opposes the development application on three bases. First, to approve the development would be contrary to the views and policies of the Peel Inlet Management Council, which is a body whose views (received via the Department of Environment) should be taken into account and given weight. So too, as regards the Shire's views. This position of opposition to the construction of private jetties on the public foreshore has, it was submitted, been consistently applied by relevant decisionmakers. These matters are considered in more detail below.
57 Secondly, the WAPC says that there would be adverse impacts in terms of the loss of public access, alienation of the relevant land, a loss of foreshore vegetation, and a reduction in terms of visual amenity of the foreshore and natural waterways.
58 Thirdly, the WAPC is concerned that approval might create an undesirable precedent for future cases.
Shire's position
59 The Shire is opposed to the development, and as indicated above, has refused planning permission under its TPS 4. Its reasons for refusal are largely common ground with those of the WAPC, but the Shire particularly emphasises the private nature of the proposed development and the public status of the lands affected.
60 Whilst the Shire is sympathetic to the personal circumstances of the applicant, it has expressly disregarded them as they are not said to be relevant planning considerations. Having said that, they note that the general issue of public disabled access facilities to waterways in the region is "under review". The WAPC has expressed similar sentiments.
The views of the Peel Inlet Management Council
61 The Peel Inlet Management Council (PIMC) appears to be a statutory advisory committee set up under the Water and Rivers Commission Act 1995 (WA). Whatever its precise status, its views on the current matter (expressed as a written policy) have been adopted by, endorsed or followed by its "parent" Department, the Department of Environment, and relayed to the principal decisionmaker upon formal consultation with that Department, consultation which the PRS envisages. In turn, those views have been given great weight by both the WAPC and the Shire.
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62 Moreover, it is said by all of these bodies that there has been consistent application of that policy, such that no relevant jetties have been built contrary to that policy.
63 The policy, "WS 3.4", endorsed in its current form by PIMC on 19 May 2004, is titled "Boating Facilities, Jetties and Structures" (PIMC Policy). The PIMC Policy opens with the following statements of purpose and objective:
"The purpose of this policy is to ensure that the potential impacts associated with the location and construction of structures such as such as jetties, boat ramps, boat sheds, land backed berths and slipping facilities within the management area (as defined [by the] Waterways Conservation Act 1976) are minimised.
This policy aims to ensure that waterways environmental, aesthetic and social impacts associated with boating structures potential impacts are minimised [sic], that the number of structures is controlled and that the alienation of public waterways and foreshore areas is minimised."
64 To this end, the PIMC Policy at cl 4.1 ("Private Structures and Jetties [Riverine]") provides:
"[Proposals Adjacent to Public Land] PIMC will not recommend approval of applications for new private jetties, boat ramps, slipways or structures abutting or fronting public land. PIMC will not recommend approval for applications to rebuild unlicensed old jetties adjacent to public land that may have fallen into disrepair."
65 Clause 4.2 of the PIMC Policy ("Private Strucutures [sic] and Jetties [Estuarine Peel Inlet and Harvey Estuary]") provides:
"[Properties with High Water Mark Titles] Applications for private jetty licenses will not be recommended for approval due to the shallow nature of the estuary shores and environmental sensitivity of these areas and the foreshores.
[Properties Abutting Public Land] Applications for new private jetties, boat ramps and slipways abutting public foreshores or road reserves serving a similar purpose will not be recommended for approval."
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66 Notwithstanding these, in effect, presumptions against approvals for private jetties, the PIMC Policy contemplates that a case might be made for approval. This position reflects the position of administrative policies in law: see the discussion of policies in JB Investments Pty Ltd and Valuer General [2006] WASAT 55 at [80] [84. And, as that case demonstrates, the creation, publication and use of such policies "serves to promote consistent and rational decisionmaking."
67 Here, the rationale for the PIMC Policy is clear: there are already too many private jetties in the Murray River which collectively have a detrimental "environmental, aesthetic and social" impact, and that that position would be exacerbated by the construction of further jetties. A prima facie prohibition on new structures to preserve what is left is the central tenet accepted by all relevant public authorities having responsibility in the area of the subject land. It could not be said to be an illogical, irrational or unreasonable position to adopt. Moreover, the PIMC Policy is entirely consistent with the aims of the other planning instruments referred to above.
68 Further, it should be noted that policies in the planning area which attempt to "hold the line", notwithstanding the previous destruction or despoliation of the very subject matter regulated by the policy, are a legitimate tool and ought to be applied, subject to any compelling case recognised by the decisionmaker justifying departure. See, for example, Tooth and City of Subiaco [2005] WASAT 317 at [58] [59. In Tooth, as here, it is recognised that "[the relevant] policies, found to be valid and applicable, must be applied in the knowledge that they were drafted with reference to the status quo and must be construed and applied in that light".
69 Apart from a suggestion that certain old jetties have been permitted to be rebuilt notwithstanding the PIMC Policy, the applicant has not produced any evidence that the PIMC Policy of recommended refusal in respect of new structures, similar to his proposal, has not been consistently applied by the decisionmakers in this area.
70 In the circumstances, the Tribunal ought to take into account, follow and apply the PIMC Policy unless the applicant can demonstrate some compelling case to the contrary.
The applicant's case on review
71 The applicant has a medical condition affecting his spine following an accident at work. He has produced to the Tribunal various medical
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- reports and copies of his xrays explaining and demonstrating his medical condition.
72 It is not in doubt that by reason of, amongst other things, his spinal operation, his current treatment regime and his medication, he is partially incapacitated and that he might be fairly described as "disabled". It is not challenged that the building of the jetty would assist in his private recreational pursuits, if not actually aid in his rehabilitation and exercise regime.
73 Besides his applications under review, the applicant has also applied for a licence under the Jetties Act (which is discussed above).
74 In summary, the applicant draws attention to the following matters:
(i) the lack of nearby facilities for disabled persons' access to the river;
(ii) that his proposal would stabilise the foreshore either side of the proposed jetty;
(iii) that there are numerous private jetties constructed nearby, and that these structures also stabilise the foreshore;
(iv) that any decision not to approve the proposed jetty relegates "people with disabilities to [the status of a] second class citizen which is contrary to United Nations Disability Policy [sic] which Australia is a signatory [to]";
(v) already there is limited public and disability access "to the Murray River foreshore east of the Ravenswood Bridge";
(vi) that commercial interests, such as the Murray River House Boats compound and the Sapphire Waters project, already restrict public access, and that approvals for these developments were given after the PRS or other relevant policy came into effect;
(vii) that no alienation of land is involved, nor would existing public access be affected;
(viii) river foreshore vegetation is already denuded in parts and that the proposed jetty would stabilise the area and,
- on the contrary, preserve vegetation and enhance public access and amenity; and
- (ix) that some old jetties have been permitted to be repaired by way of their complete replacement.
Discussion of the case
75 Clause 34 of the PRS sets out a number of planning, environmental, community, conservation and environmental factors in decisionmaking under the PRS. Included in the list of matters specified is cl 34(h): "the purpose for which land is reserved", and cl 34(k): "any social issues, that have an effect on the amenity of the locality". Also included in cl 34 is reference to the results of any "consultations" permitted or required under cl 33 (see above). Mention has already been made of the results of these consultations.
76 In Riviera Properties Projects PL v East Gippsland SC [2004] VCAT 2605, the Victorian Tribunal observed, at [9]:
"I do not think that it is sustainable to argue that the provision of a private jetty, and or a private mooring for a boat, within the Public Park and Recreation Zone is inappropriate as a matter of general principle. It seems to me that the issue to be determined is the question of whether or not a jetty and or mooring is appropriate in the particular circumstances of the case."
77 So far as it goes, this statement of general principle may be acknowledged, but with a note of caution demonstrated by the outcome of this case. Here, there are a number of factors (discussed below) that, when considered in combination, indicate that it would be inappropriate to grant planning approval under the PRS.
78 First, the nature of the proposed facility is essentially a private facility to be constructed mainly in a public reserve, a reserve that has several public objectives (including conservation, access and recreation). On its face, the jetty would have limited social benefit beyond its use by the applicant. There is no doubt that it would benefit the applicant, but the various publicpurposes of the reserve would not be relevantly advanced. Necessarily, the construction of a private jetty reduces public access to the river, whether or not there is any alienation of the land. Secondly, the construction of the jetty would necessarily damage some part of the existing river foreshore in its natural state. It would appear from the applicant's photographs that the river foreshore's current natural
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- state is neither pristine nor particularly attractive in places. Nevertheless, the construction of yet another jetty would not relevantly improve that situation; arguably it would worsen it. Next, there can be little doubt that the addition of yet another private jetty would adversely affect visual amenity, so far as the natural state of the river (such as it is) is concerned. Even if this were only marginal in effect given what already exists the situation may nevertheless be avoided by not granting planning approval.
79 These matters, when considered together with the related guidance offered by the PIMC Policy, lead to the conclusion that the correct and preferable decision is not to grant planning approval. Thus, the Tribunal, independently, adds its voice to the opposition to the proposal from all of the relevant regulatory agencies.
80 It is unnecessary to go on and consider the Murray River's status as a floodway or its reserved status as a waterway, but nothing the Tribunal has said should necessarily be taken as implying that the applicant's proposal is necessarily consistent with these objectives or classifications.
International law and alleged discrimination
81 As appears above, the applicant also alleges that his rights as a disabled person under international law would be infringed if his review were unsuccessful.
82 It is axiomatic that only when international law norms are translated into domestic law can a body such as this Tribunal or one of the original decisionmakers give effect to them. Kirby J said in Kavanagh's Application, Re (2003) 78 ALJR 305, at 309:
"It is perhaps understandable that a lay person might consider that international law has legal force superior to domestic law. The habit of thinking in a federal system of government, such as Australia, might encourage such reasoning. Thus, by analogy with the superiority of valid federal law over State law, it might be thought that international law, in a similar fashion, always overrides domestic federal law. This is not the case."
83 This is not to say that such norms cannot, at least some cases, inform a domestic decisionmaker's discretion: cf Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission and Anor (1998) 89 FCR 17, at 33 (French J);
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- Foreign Affairs and Trade, Minister for v Magno (1992) 37 FCR 298, at 304 (Gummow J).
84 To the extent that such translation to domestic law has taken place, it is mainly manifested in State and Commonwealth antidiscrimination statutes (that is, the Equal Opportunity Act 1984 (WA), Pt IVA and the Disability Discrimination Act 1992 (Cth)). However, these Acts provide specific mechanisms for enforcing the rights so granted under them.
85 In any event, there is nothing in the decision made today by this Tribunal (or in the decisions under review) that directlydiscriminates against the applicant on the grounds of his disability. A person in the same position as the applicant, but without his disability, would have, of course, received exactly the same treatment (and the same decision) as the applicant. Further, his disability was not any part of the grounds for the decision being adverse to him. On the contrary, his disability was one of the factors, along with much other material, taken into account by the Tribunal (and others) in considering whether or not to grant planning approval.
86 So far as it may be suggested that the Tribunal or one of the original decisionmakers has indirectly discriminated against the applicant, then the Tribunal should not offer any comment on that complex matter and should leave such matters to take their own course (if any): cf. the most recent High Court decision in this area: State of New South Wales v Amery [2006] HCA 14.
Conclusion
87 For the reasons set out above, the Tribunal has not been satisfied that there are any compelling grounds under the criteria prescribed by the PRS for granting planning approval for the applicant's private jetty proposal. Both of the applications for review must therefore be dismissed.
Orders
88 Consequently, the Orders of the Tribunal are:
1. The applications for review are dismissed.
2. The decisions under review are affirmed.
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- I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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