Today’s decision of the Supreme Court on the controversial Wave Park proposal is significant for the public, local councils and developers alike.
The proposed Wave Park at Tompkins Park has been contentious among concerned ratepayers in the City of Melville since its announcement. In a decision that divided the community, the city decided to relocate the Melville Bowls Club and grant a lease of public land at Tompkins Park to allow the Wave Park to be built in its place on the river foreshore. Despite the surprising decision of the Environmental Protection Authority not to assess the proposal on environmental grounds, concerns remain about the impact that operational noise will have on the local environment at Alfred Cove on the Swan River foreshore.
According to Squire Patton Boggs partner Margie Tannock, of greater concern for the public are the wider implications for accountability and transparency in local government.
Squire Patton Boggs represents the Swan Foreshore Protection Association (SFPA), who last year challenged the city’s decision to grant an AU$700,000 per annum lease to the Wave Park proponent Urbnsurf (Perth) Pty Ltd, without first complying with the public notice requirements under the Local Government Act 1995. The statutory public notice requirements form the cornerstone of adequate public consultation, openness and transparency in major land transactions involving the disposal of land.
The city, which is the subject of an Inquiry by the Department of Local Government and Communities, failed to publish the correct public notices prior to its decision in April 2017 to grant the lease, effectively denying the public its opportunity to provide meaningful submissions before the city made its decision.
In a judgment handed down by the Supreme Court of Western Australia today, Justice Allanson found that none of the published notices in December 2016 and January 2017 – in the Melville Times or The West Australian – gave notice of any of the details required by law. Having raised this error with the city in mid-2017, the SFPA pursued its concern to the Supreme Court by way of judicial review, because the city refused to acknowledge the significance of its deficient actions.
In a decision published today, Justice Allanson determined that the city’s failure to comply did not invalidate the lease already granted to Urbnsurf.
According to Margie Tannock, the litigation itself serves as a warning to other local governments and also to developers that statutory requirements cannot be ignored.
“There are important lessons to be drawn from His Honour’s decision about the accountability of local government and other statutory decision-makers. Demonstrably, a failure to properly consult the public over an important land transaction has major consequences for a local government who, through choice, inadvertence or incompetence, ignores the requirements of the act.”
She continued: “It is a costly exercise for all involved when the public is forced to pursue its legitimate right to consultation through the court system. In our view, the responsibility lies squarely with the local government.
“My advice to impacted parties is to run the ruler over your local authority’s paperwork – at the end of the day, any failure by them to follow the legal guidelines may well cost you time and money.’