COMMUNITY group Swan Foreshore Protection Association (SFPA) has paid the price for its attempt to challenge the ground lease for the proposed wave park in Alfred Cove in the Supreme Court.
After the Supreme Court dismissed the SFPA’s application for a judicial review into the lease in July, the group has now paid $61,250 in legal case costs to wave park proponents URBNSURF.
SFPA chairman Clive Ross said despite paying the money he did not believe it was an error to go to court.
“In taking the matter to court, apart from establishing that the City of Melville did in fact breach the applicable legislation, SFPA has provided a community service to all West Australians by discovering a previously unrecognised and unknown significant failing in legislation, which is designed to ‘protect’ the community and ensure transparency,” he said.
“The failing being that according to the Supreme Court, there is no availability of a court-ordered consequence for non-compliance.”
The SFPA argued that the City of Melville failed to advertise the name of the lessee in its business case for the $25 million proposed project.
Shayne Silcox, who was the City of Melville chief executive at the time of the decision, described it as a technical error but one that was “inconsequential”.
The ground lease was ticked off by the City of Melville and the Wave Park Group (WPG) in April 2017.
Mr Ross said it was important to understand that the court found the City was required to comply with a provision of the Local Government Act (LGA).
“Justice Allanson found that the penalty or sanction for the non-compliance falls within the responsibility of the Minister for Local Government,” he said.
“It is therefore now up to the Minister to decide what if any action will be taken to ensure that failure to comply with legislative provisions have appropriate consequences.”
URBNSURF founder and executive chairman Andrew Ross said while Clive Ross was entitled to his own opinion of the court decision, he was not entitled to his own reconstruction of the decision.
“The court made no finding that laws were being ignored or disregarded,” he said.
“What the court found was that the arguably technical objection arising from a non-compliance with s 3.58 of the LGA did not affect the validity of the decision to enter into the lease.
“That is, the entry into the lease – which was the matter being challenged by the SFPA – was valid.”