Wheater and ORS and Shire Of Waroona
[2006] WASAT 246
•23 AUGUST 2006
WHEATER & ORS and SHIRE OF WAROONA [2006] WASAT 246
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 246 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:137/2006 | DETERMINED ON THE PAPERS | |
| Coram: | MS J HAWKINS (MEMBER) | 23/08/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | 1. Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA), these proceedings are struck out. 2. In accordance with s 87(1) of the State Administrative Tribunal Act 2004 (WA), each party bear their own costs. | ||
| B | |||
| PDF Version |
| Parties: | HILARY WHEATER PETER WAHLSTEN SONIA KORZEC STEVEN KORZEC SHIRE OF WAROONA |
Catchwords: | Jurisdiction Section 3.25 notice under Local Government Act 1995 (WA) Unjustified proceedings Costs |
Legislation: | Local Government Act 1995 (WA), s 3.25, s 3.25(1), s 3.25(1)(a), s 3.25(1)(b), s 3.25(5), s 9.1, s 9.2, s 9.3, s 9.4, s 9.7, s 9.7(2), Sch 3.1 Div 1, Div 2, cl 3, Sch 9.1, cl 2, cl 8, r 5 State Administrative Tribunal Act 2004 (WA), s 47(2), s 60, s 87(1), s 87(2) |
Case References: | Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Local Government [Uniform Local Provisions] Regulations 1996 (WA) Nil |
Orders | 1. That the application be struck out pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).,2. That each party bear their own costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : WHEATER & ORS and SHIRE OF WAROONA [2006] WASAT 246 MEMBER : MS J HAWKINS (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 23 AUGUST 2006 FILE NO/S : DR 137 of 2006 BETWEEN : HILARY WHEATER
- PETER WAHLSTEN
SONIA KORZEC
STEVEN KORZEC
Applicants
AND
SHIRE OF WAROONA
Respondent
Catchwords:
Jurisdiction Section 3.25 notice under Local Government Act 1995 (WA) Unjustified proceedings Costs
Legislation:
Local Government Act 1995 (WA), s 3.25, s 3.25(1), s 3.25(1)(a), s 3.25(1)(b), s 3.25(5), s 9.1, s 9.2, s 9.3, s 9.4, s 9.7, s 9.7(2), Sch 3.1 Div 1, Div 2, cl 3, Sch 9.1, cl 2, cl 8, r 5
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 47(2), s 60, s 87(1), s 87(2)
Result:
1. Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA), these proceedings are struck out.
2. In accordance with s 87(1) of the State Administrative Tribunal Act 2004 (WA), each party bear their own costs.
Category: B
Representation:
Counsel:
Applicants : Mr A Cheung
Respondent : Mr D Nadebaum
Solicitors:
Applicants : Maxim Legal Consultants
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Local Government [Uniform Local Provisions] Regulations 1996 (WA)
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 This matter relates to the clearing operations in part carried out by the applicants on a sand dune, on land owned by the respondent. The clearing operations were not authorised by the respondent. The applicants were informed by letter dated 2 March 2006 of resolutions of the Council of the respondent, that the respondent wanted the applicants to rehabilitate their land.
2 The applicants claimed that the respondent's letter of 2 March 2006 constituted a notice under s 3.25 of the Local Government Act 1995 (WA), and relied on s 9.7 and 9.3 of the Local Government Act 1995 (WA), to seek a review by this Tribunal.
3 The respondent sought a determination, of a preliminary issue as to whether this Tribunal had jurisdiction.
4 The preliminary issue for determination was whether the respondent's letter of 2 March 2006, constituted a notice under s 3.25 of the Local Government Act 1995 (WA), and, therefore gave the Tribunal jurisdiction under s 9.7 or s 3.25(5) of the Local Government Act 1995 (WA).
5 The Tribunal found that the respondent's letter of 2March 2006 was not a notice pursuant to s 3.25 of the Local Government Act 1995 (WA), as it:
a) concerned rehabilitation to be carried out on land owned by the respondent;
b) did not purport to be a notice; and
c) did not contain some of the usual features expected of a notice from a local government.
6 The Tribunal therefore considered that neither s 9.7 or s 3.25(5) of the Local Government Act 1995 (WA), applied. The application was therefore struck out pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA). In addition the applicant's claim for cost was dismissed.
Application
7 The applicants bring their application pursuant to s 9.7 and s 9.3 of the Local Government Act 1995 (WA) (the LG Act). The applicants claim
(Page 4)
- that this Tribunal has jurisdiction in this matter, on the basis that a letter from the respondent dated 2 March 2006, (the Relevant Letter) constitutes a notice pursuant to s 3.25 of the LG Act. The respondent disputes that the Relevant Letter constitutes the notice pursuant to s 3.25 of the LG Act and alleges that the Tribunal does not have jurisdiction to determine the dispute under s 9.7 and s 9.3 of the LG Act.
8 An order was made on 11 May 2006 allowing the parties to file submissions in respect to this preliminary issue. By letter dated 27 July 2006, the applicants' solicitors advised that their clients were agreeable to this preliminary issue being determined on the papers. As a result, this matter has been determined pursuant to s 60 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) on the basis of the documents that have been filed by the parties.
Factual background
9 The matter relates to the clearing operation of the dune which was land owned by the respondent and abutted Lots 324 and 325 Bouvard Place, Preston Beach of which the applicants are the registered proprietors. Lot 323 Bouvard Place, Preston Beach, which also abuts the respondent's land is owned by Mr Vogel, who is not a party to the current proceedings. Mr Vogel had sought to be joined in respect to this dispute, however the Tribunal did not consider it necessary to do so, before a determination of the preliminary jurisdictional issue.
10 On 16 November 2005, the respondent wrote to the applicants informing them that it had become aware the applicants had cleared the dune. The respondent advised the applicants that there had been no approval for the clearing or earthworks on the dune, which was on land owned by the respondent.
11 The clearing of the dune became the subject of an ordinary Council meeting of the respondent, held on 10 January 2006. It should be noted that the applicants allege, that at no time were they given notice of that meeting. The Council decision was made on 10 January 2006 and resolved in summary as follows:
a) not to commence legal action against the applicants, subject to the cooperation of the owners of Lots 324 and 325 Bouvard Place, Preston Beach, with the rehabilitation of the dune;
(Page 5)
- b) to require the dune to be rehabilitated and that the rehabilitation behind Lots 324 and 325 Bouvard Place, Preston Beach, be undertaken at the cost of the owners of Lots 324 and 325, and the rehabilitation behind Lot 323 be undertaken by the owner of Lot 323 at his cost. In the event that the owner of Lot 323 decided not to undertake the rehabilitation behind their lot, that work be undertaken by the owners of Lots 324 and 325 at their cost.
12 Subsequent to that meeting, it appears that some action was then taken by Mr Vogel in respect to the levelling of the dune, which was then the subject of further objection to the respondent, by the applicants. As a result of that objection, a further Council meeting was held on 28 February 2006, and the clearing of the dune was again discussed. The applicants appeared and made comments to the Council, along with Mr Vogel. As a result of that meeting the respondent sent the Relevant Letter to the applicants
13 The Relevant Letter informed the applicants, Ms Wheater and Mr Wahlsten, of the February decision. Only a copy of the Relevant Letter addressed to Ms Wheater and Mr Wahlsten was attached to the application. It is presumed that the same letter was forwarded by the respondent to the Korzecs'.
14 As it is alleged that the Relevant Letter constitutes a notice pursuant to s 3.25 of the LG Act, the Relevant Letter is set out as follows:
"Dear Sir/Madam
ILLEGAL CLEARING OF SHIRE LAND – BOUVARD PLACE, PRESTON BEACH
I refer to your correspondence regarding the abovementioned matter.
At its meeting held on 28 February 2006, Council resolved as follows with respect to the matter:
1. Reiterate its decision of 10 January 2006, and that the levels remain as they exist at the date of February 2006 ordinary Council meeting; and [10 [Agonis Flexuosa Peppermint trees] are to be planted in the location shown on the plan in Appendix 7].
(Page 6)
- Therefore, the outcome of the decision at the January and February meetings is that the following course of action is to be taken with respect to rehabilitation of the site:
The site is to be rehabilitated to the satisfaction of the Manager, Planning and Development Services in accordance with the attached plan, and the following:
1. The site be rehabilitated using only the plant species contained on the list attached. The exact list of species to be planted to be approved by the Manager, Planning and Development Services. A minimum of 100 seedlings to be planted over the site, and a minimum of 10 of those to be "Agonis Flexuosa" [Peppermint trees], planted in the location shown on the attached plan. Planting to occur no later than July 2006 and to be maintained until July 2007. Any plants to die over the summer to be replaced by the land owners in July 2007.
2. The site to be brushed using suitable tree/shrub clippings with a minimum height of brushing being 15 millimetres.
3. A 4-strand ring-lock fence being constructed along the rear boundary of Lots 323 to 325 as shown on the attached plan to prevent access to the site whilst it is rehabilitated.
4. The site levels to remain as they exist at the date of the February 2006 ordinary Council meeting.
The rehabilitation behind Lots 324 and 325 Bouvard Place, Preston Beach to be undertaken at the cost of the owners of Lots 324 and 325. The rehabilitation behind Lot 323 Bouvard Place, Preston Beach to be undertaken by the owner of Lot 323 at their cost. In the event that the owner of Lot 323 decides not to undertake the rehabilitation behind their Lot, that the work shall be undertaken by the owners of Lots 324 and 325 at their cost.
- Should you have any further queries in relation to this matter, please contact the undersigned on 9733 7804.
Yours faithfully
Matthew Turner
Manager of Planning and Development Services"
Submissions
15 The applicants have filed submissions which state as follows:
"7. Where a Local Government has made a decision to which Part 9, Div 1 of the Local Government Act1995 (WA) ['the LG Act'] applies and an affected person has objected to the decision, the Tribunal may, pursuant to s 9.7(2) of the LG Act, review any decision of the Local Government in respect of that objection.
8. For the purposes of s 9.7(2) of the LG Act:
8.1 a decisions is defined to include, relevantly, the provision of a notice pursuant to s 3.25 of the LG Act ["notice"] s 9.1(2) [of the LG Act]; and
8.2 affected person "is defined to include, in respect of a decision concerning a notice";
a) a person referred to in s 3.25 of the LG Act, being a person named in the notice as owner occupier of land; [sic] or
b) a person who is not the owner of the land to which a notice relates but the owner of the land is an affected person (s 9.2(b) of the LG Act).
(Page 8)
- 10. The applicants then sought review of the objection decision pursuant to s 9.7(2) of the LG Act by way of the application".
16 Essentially, the applicants submit that this Tribunal has jurisdiction to hear this matter pursuant to s 9.7(2) of the LG Act. They suggest that the Relevant Letter constitutes the notice under s 3.25 of the LG Act.
17 Section 3.25 of the LG Act provides as follows:
"3.25(1) A Local Government may give a person who is the owner or, unless Sch 3.1 indicates otherwise, the occupier of land a notice in writing in relation to the land requiring the person to do anything specified in the notice that –
a) is prescribed in Sch 3.1, Div 1; or
b) is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Sch 3.1, Div 2".
19 The applicants also contend that the Relevant Letter constitutes a notice under s 3.25 of the LG Act, because it requires repair of any damage caused to a public place. They suggest that, s 3.25 of the LG Act provides that a s 3.25 notice can require the recipient to do anything specified in the notice that is prescribed in Sch 3.1 Div 1 of the LG Act. The applicants rely on cl 3 of Sch 3.1 Div 1 of the LG Act.
20 Clause 3, Sch 3.1, Div 1 reads as follows:
"3. Modify or repair, in the interest of the convenience or safety of the public, anything constructed as mentioned in Sch 9.1, cl 8, or repair any damage caused to the
- public thoroughfare or other public place mentioned in that clause".
21 It should be noted that the applicants rely only on cl 3 of Sch 3.1 Div 1 of the LG Act. They can point to no other clause in Sch 3.1 of the LG Act, being referrable to the alleged notice from the respondent dated 2 March 2006. The applicants argue that cl 3 of Sch 3.1 Div 1 should not be restrictively interpreted. They suggest that it does not apply simply to anything "constructed", as mentioned in Sch 9.1 cl 8 of the LG Act, but also allows a notice to be issued by a Local Government to repair any damage caused to a public thoroughfare or other public place mentioned in Sch 9.1 cl 8. It appears that the applicants concede that Sch 9.1 cl 8 of the LG Act primarily concerns construction.
22 The respondent however, submits that the Relevant Letter from the respondent does not constitute a notice under s 3.25 of the LG Act. They argue that it was not possible for it to validly give a s 3.25 notice to the applicants, because the applicants are not the owners or occupiers of the subject land, rather, the land is owned and occupied by the respondent. In addition, the respondent submits that the respondent only had power to issue a notice under s 3.25 of the LG Act if one of the matters specified in s 3.25(1)(a) or (b) was satisfied. Section 3.25(1)(a) of the LG Act refers to anything prescribed in Sch 3.1 Div 1 of the LG Act. The respondent has simply indicated that nothing prescribed in Sch 3.1, Div 1 of the LG Act, is relevant to the matter. The respondents have not addressed the specific submission made by the applicants, that cl 3 of Sch 3.1 Div 1 of the LG Act, applies in this matter.
23 The respondent goes on in their submission to suggest that the only valid notice which could have been issued would be for the purpose of remedying or mitigating the effect of any offence against a provision prescribed in Sch 3.1, Div 2 of the LG Act. The respondent argues that the only possible contravention of the LG Act by the applicants are regulations which are made under cl 2 Sch 9.1 of the LG Act. The respondent points out however, that this is not a clause that is specified in Sch 3.1, Div 2 of the LG Act. The respondent contends that the regulations under the Local Government [Uniform Local Provisions] Regulations 1996 (WA) have a note at the base of each regulation, indicating if a s 3.25 notice can be issued in respect to that Regulation. Regulation 5 of the Local Government [Uniform Local Provisions] Regulations 1996 (WA) has no such note.
(Page 10)
24 The respondent also argues, that if it issues a notice to which a right of review by the Tribunal applies, it is obliged to state in such a notice that right of review exists. The respondent submits that the Relevant Letter made no such reference, to a possible right of review.
Legislative context
25 Section 9.7 of the LG Act allows an "affected person" to make application to the Tribunal to review a decision of a Local Government. Section 9.2 of the LG Act defines "a decision" as "a decision or notice that, in accordance with s 9.1, causes this division to apply". Section 9.1 of the LG Act provides as follows:
"9.1(1) This Division applies when a Local Government makes a decision under this Act to as to whether it will –
a) grant a person an authorisation under Part 3 or under any Local Law or Regulation that is to operate as if it were a Local Law; or
b) renew, vary or cancel an authorisation that a person has under any of those provisions.
2) This Division also applies whenever a Local Government gives a person a notice under s 3.25, and for the purposes of this division the giving of a notice under that section is to be regarded as the making of a decision."
26 It should be also be noted that s 9.4 of the LG Act provides that:
"9.4 Whenever a decision is made that the affected person could consider to be unfavourable, the person making it, is to ensure that, as soon as practicable after the decision is made, the affected person is given written reasons for the decision and informed of the person's rights under the division to object against, and apply for a review, of the decision."
27 Section 3.25(1) of the LG Act authorises a local government to give a person who is the owner or, in certain cases, the occupier of land, a notice in writing relating to the land requiring the person to do anything specified in that notice that is prescribed in Sch 3.1 Div 1 or is for the
(Page 11)
- purpose of remedying or mitigating the effects of any offence against anything prescribed in Sch 3.1 Div 1.
28 Section 3.25(5) of the LG Act also allows a person, who is given a notice under s 3.25, to apply to the Tribunal for a review of the decision to give the notice.
Consideration
29 The preliminary issue for determination by this Tribunal is whether the Relevant Letter constitutes a notice under s 3.25 of the LG Act, or indeed under s 3.25(5) of the LG Act. If it does, then the applicants can proceed pursuant to s 9.7 of the LG Act. If it does not, then these proceedings must be struck out under s 47(2) of the SAT Act.
30 The Relevant Letter was headed "Illegal Clearing of Shire Land – Bouvard Place, Preston Beach". It does not mention in the heading of the letter that the subject of the letter was in respect to any land owned or occupied by the applicants. The Relevant Letter was dealing with the issue of the rehabilitation of the respondent's land that had been illegally cleared by the applicants.
31 The applicants have argued that there is no requirement under s 3.25 of the LG Act, for the things required to be done pursuant to a notice, to be only in respect of the land owned or occupied by the person to whom the notice is addressed, but suggest that the requirement is only that the notice "relate to" any such land. They suggest that the words "relating to land" in s 3.25 of the LG Act be given a wide interpretation.
32 There is mention in the Relevant Letter, that the applicants were asked by the respondent as part of the rehabilitation of the respondent's land, to erect a fence along the rear boundary of their land and the respondents land. The applicants have also pointed out that the works to be performed by the applicants, is upon the respondent's land, which connects with the applicants land.
33 The applicants suggest that a wide interpretation be given to the words "relating to the land" in s 3.25. They also suggest that as the Relevant Letter refers in part to land owned by the applicants, it therefore is "relating" to land owned by the applicants and thereby brings it within s 3.25 of the LG Act.
34 The Tribunal does not accept such a wide interpretation of s 3.25 of the LG Act.
(Page 12)
35 The plain and ordinary meaning of s 3.25 of the LG Act makes clear that the recipient of a notice from a local government should be an owner or occupier of the land, upon which the local government requires the owner or occupier, to do what is specified in the notice.
36 The reference of the words "relating to the land" in s 3.25 of the LG Act is a reference to the land of an "owner" or "occupier", referred to earlier in s 3.25 of the LG Act.
37 The Relevant Letter concerned rehabilitation of the respondent's land. Although it required the applicants to undertake work along the boundary separating the applicant's land from the respondent's land, it was concerned with rehabilitation of the respondent's land.
38 The Tribunal considers therefore, that as the Relevant Letter was concerned with rehabilitation by the applicant of the respondent's land, then s 3.25 of the LG Act does not apply.
39 In addition, however, the Relevant Letter made no reference to s 3.25 of the LG Act. Nor was there any description within the Relevant Letter of it being a "Notice". The Relevant Letter did not indicate to the applicants that a failure to comply with the Relevant Letter may constitute an offence or place the applicants on notice that the respondent would take action against them should they fail to carry out the rehabilitation. Finally, the Relevant Letter made no reference to what steps the applicants could take if they were aggrieved by the contents of the Relevant Letter.
40 These are but a few of the likely indicia that would be expected in a local government Notice.
41 For the above reasons therefore the Tribunal finds that the Relevant Letter did not constitute a notice under s 3.25 of the LG Act.
42 Given the reasons set out above, as to why the Relevant Letter does not constitute a s 3.25 Notice under the LG Act, it is unnecessary to deal with the applicants submissions in respect to cl 3, Div 1, Sch 3.1 of the LG Act.
43 The Tribunal finds therefore that there is no statutory basis for the present proceedings and therefore strikes out the application in accordance with s 47(2) of the SAT Act.
(Page 13)
Costs
44 The respondent has provided no submissions in respect to the issue of costs. The applicants rely on the decision of Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 (Citygate). In that case, although the application was struck out, costs were awarded to the applicant despite the general rule as stated in s 87(1) of the SAT Act, that each party bear their own cost.
45 In the decision of Citygate, the Tribunal accepted that the Local Government advised the applicant that it had an appeal right, but that it also advised the applicant, that failure to act on the disputed notice was a criminal offence. The Tribunal therefore, exercised its discretion under s 87(2) of the SAT Act and awarded cost to the applicant, as it considered that the local government in Citygate had induced the applicant to bring their application.
46 In this case the applicants have filed an affidavit of Alex Peter Wahlsten. In that affidavit Mr Wahlsten deposed that following receipt of the respondent's letter of 2 March 2006, he contacted Mr Tillbrook who he understood to be an officer of the respondent and asked him the process by which the applicant could object to the respondent's decision of 28 February 2006, and the letter of 2 March 2006. He annexes a letter sent by facsimile from a "L Tillbrook", that letter stated that:
"...objections to Council decisions may be made pursuant to s 9.5 of the Local Government Act 1995 (WA), within 28 days of decision, that is 28 days from February Council meeting which was held on February 28. For further clarification on the appeals process please feel free to contact the EPT of Local Government. Attached are relevant pages of the Act".
47 The correspondence from Mr Tillbrook does not refer to s 9.7 and s 9.3 of the LG Act. Further it invited Mr Wahlsten to seek further clarification on the appeals process from the Department of Local Government. In the decision of Citygate, the correspondence from the Local Government Authority to the applicant clearly set out the appeal process. The Relevant Letter did not set out any appeal rights for the applicant. Nor did it suggest that any failure to act by the applicant could result in a criminal offence.
48 The Tribunal is not satisfied in the circumstances therefore, that the respondent had induced the applicant to commence the proceedings.
(Page 14)
- Accordingly, the Tribunal is not prepared to exercise its discretion to award costs to the applicant.
Orders
49 The Tribunal makes the following orders:
1. That the application be struck out pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
2. That each party bear their own costs.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER
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