Minutes 28-03-01 - Shire of Shark Bay

ORDINARY COUNCIL MINUTES - 28 MARCH 2001 Page 18
So are we now saying that the Council is liable for all of our buildings under the first development
application? Obviously not, so we cannot have two rules.
I seek the Council's normal common sense approach to approving the kitchen at the level fo the
existing restaurant with the proviso, if seen fit, that the approval is given but no liability will be
taken by the Council.
When we proceed with that development application, clearly the condition and acceptance has been
understood by both parties.
I therefore urge the Council to give a positive decision and let us get on with replacing the kitchen as
soon as possible.
Mr Robertson's comments have been forwarded to Council's solicitors requesting written
advice on the matters raised in Mr Robertson's correspondence, so as Council may make
an informed decision on these matters.
Council's solicitors' advice is below.
Bough Shed Restaurant Kitchen Extension
We refer to your letter dated 20 March 2001 which attaches a copy of a letter from Mr Graham
Robertson of the same date.
Our advice has been sought in relation to issues raised in Mr Robertson's letter. In essence Mr
Robertson makes the following claims.
1 If flood damage occurs, the owner would make a claim under its insurance policy and
this would prevent a claim being made against the Shire.
2 The need for staff to carry hot plates up and down ramps to access the kitchen would
have a detrimental impact on the owner's workers' compensation and Work Safe coverage.
3 As the owner would not regard the Shire as being liable for flood damage to other
buildings previously approved by the Shire, it would not adopt a different position in relation
to flood damage should it occur to the kitchen.
The significance of these issues must be considered having regard to their relevance to the exercise of
the Shire's discretionary planning powers. As advised in our letter dated 13 February 2001, the
Shire cannot validly exercise its planning powers by reference to considerations of its own
indemnification and protection against the legal consequences of a negligent exercise of those powers.
This has two relevant consequences for the Shire in dealing with the application to renovate the
restaurant.
1 The potential for a future negligence action against the shire, if the kitchen is damaged by
flooding, is not relevant to the Shire's consideration of the planning merits of the proposal. It
is for the Shire to consider whether that potential warrants refusal of an approval on planning
grounds or the imposition of a condition such as that imposed on its previous planning
approval which required the floor level to be 3.0 metres AHD or more.
2 The Shire cannot validly impose a planning condition requiring an indemnity to be provided
protecting the Shire from a future negligence action.
None of the issues raised by Mr Robertson alters the position with respect to either matter. His
comment about the owner's ability to make simultaneous claims against the Shire and under its
insurance policy relates to the likelihood that the owner would bring a negligence action against the
Shire in the event of flooding. The possibility of legal proceedings is not relevant to the Shire's
consideration of the owner's application. In any event, Mr Robertson's statement may be incorrect.
The owner's insurance policy may give its insurer the subrogated right to take proceedings against
the Shire in the owner's name in the event the owner makes a claim under the policy. In addition,
the land may subsequently be sold to another owner who is not insured against that risk.
The nature of the claimed impact on the owner's workers' compensation and Work Safe coverage is
not specified. Such impact appears entirely speculative in nature. If the concern is that premiums
will escalate because of a risk assessment of the ramp or through a claim made following an accident,