TIER ONE ENERGY PTY LTD and SHIRE OF DALWALLINU [2026] WASAT 100

[2026] WASAT 100 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH (MISCELLANEOUS PROVISIONS) ACT 1911 (WA) CITATION : TIER ONE ENERGY PTY LTD and SHIRE OF DALWALLINU [2026] WASAT 100 MEMBER : DR S WILLEY, SENIOR MEMBER HEARD : DETERMINED ON THE DOCUMENTS (SUBMISSIONS RECEIVED ON 10 APRIL & 7 MAY 2026) DELIVERED : 25 AUGUST 2026 FILE NO/S : DR 131 of 2025 BETWEEN : TIER ONE ENERGY PTY LTD Applicant AND SHIRE OF DALWALLINU Respondent Catchwords: Local government - Public health - Effluent disposal - Notice to provide and install a sanitary convenience - Functions of local government - Reserve for purpose of effluent disposal Practice and procedure - Costs - Relevant principles that apply in costs in the Tribunal - Decision to issue notice not unreasonable -- 1 of 26 -- [2026] WASAT 100 Page 2 Legislation: Corporations Act 2001 (Cth) Economic Regulation Authority Act 2003 (WA), Pt 2 Environmental Protection Act 1986 (WA), Pt 2 Food Act 2008 (WA), s 112(2) Health (Miscellaneous Provisions) Act 1911 (WA), s 3(1), s 26, s 36(1), s 53(1), s 53(2), s 54, s 55, s 55(1), s55(2), s 55(5), s 56, s 57(1), s 57(2), s 57(3), s 58(1), s 59, s 60, s 62, s 63, s 64, s 72, s 95, s 99(1), s 99(3), s 99(4), s 99(4a), s 99(5), s 100(1), s 100(2), s 100(3), s 105, s 106, s 107, s 107(1), s 107(2), s 112(1), s 113, s 116, s 119, s120, s 184, Sch 6, cl 3(1), Pt IV, Div 4 Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA), Pt 2 Health Act 1911 (WA), s 3(1), s 55 Land Act 1933 (WA), s 29, s 29(1), s 29(1)(h), s 31(3), s 33, s33(2), Pt III, Pt IV Land Administration Act 1997 (WA), s 3(1), s 18, s 33(2), s 46, s 46(3), s 46(5), Pt 4, Pt 9, Sch 2, cl 14(2), cl 16(1) Legal Profession (State Administrative Tribunal) Determination 2024 Local Government Act 1960 (WA), s 267 Local Government Act 1995 (WA), s 3.1(1), Pt 2 Public Health (Consequential Provisions) Act 2016 (WA), Pt 2 Public Health Act 2016 (WA), s 4(1), s 11(1), Pt IV, State Administrative Tribunal Act 2004 (WA), s 3(1), s 26(3), s 46(1), s 87(1), s 87(2), s 87(3), s 87(4), s 87(4)(b), s 89, Pt 4, Div 5 State Administrative Tribunal Rules 2004 (WA), r 43 Water Services Act 2012 (WA), s 207 Result: Costs application dismissed Category: B Representation: Counsel: Applicant : N/A Respondent : N/A -- 2 of 26 -- [2026] WASAT 100 Page 3 Solicitors: Applicant : Cornerstone Legal Respondent : McLeods Case(s) referred to in decision(s): Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246 Danni and Town of Cambridge [2023] WASAT 123 Frankowiak and Chambers [2012] WASAT 175 Oasis @ Newman Pty Ltd and Shire of East Pilbara [2025] WASAT 136 Papadopoulos and City of Stirling [2015] WASAT 126 Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S); (2017) 92 SR (WA) 230 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 Zorzi and Town of Cambridge [2025] WASAT 77 (S) -- 3 of 26 -- [2026] WASAT 100 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: 1 These reasons deal with Tier One Energy Pty Ltd's (Applicant's) application for costs (Costs Application). 2 The substantive proceeding was the Applicant's review of a notice (Notice) issued by the Shire of Dalwallinu (Shire or Respondent), pursuant to s 99(3) Health (Miscellaneous Provisions) Act 1911 (WA) (HMP Act), on 19 August 2025 (Review). 3 The Notice related to the Applicant's land at 108 - 110 Great Northern Highway, Wubin (Land), which is used for a service station, known as the 'Mobil Truckstop' (Truckstop). The Notice requires the Land and the Truckstop be provided with an apparatus for the treatment of sewage. 4 The Review was lodged on 4 September 2025. The parties exchanged submissions and relevant materials1 and, on 17 February 2026, attended a compulsory conference (Conference). 5 On 23 February 2026, following the Conference, the Shire revoked the Notice on the basis that it would, instead, seek the Governor's approval, pursuant to s 55 of the HMP Act, for the current communal effluent system that services the three commercial land uses in Wubin, including the Land (Effluent Treatment System). 6 The Applicant contends that the Shire's decision to issue the Notice was, in all the circumstances, unreasonable. The Costs Application is for $31,999.50. 7 The Shire opposes the Costs Application. Summary outcome 8 The Costs Application is dismissed. 9 In my view, the Shire acted reasonably in issuing the Notice and in its conduct of the Review. Therefore, there is no basis for an order for costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 1 Respondent's Statement of Issues, Facts and Contentions (13 November 2025); Respondent's s 24 Bundle (13 November 2025) (Respondent's Bundle); Applicant's Statement of Issues, Facts and Contentions (9 December 2025); Applicant's Bundle of Materials (9 December 2025). -- 4 of 26 -- [2026] WASAT 100 Page 5 10 My reasons follow. Background The Truckstop commences 11 The Truckstop, together with a residential dwelling, are located on the Land. 12 Both the Truckstop or the dwelling were built in around 1964, although the Shire has no record of any building approval. The Truckstop was operational in 1967. 13 In 1967, pursuant to the then Health Act 1911 (WA) (Health Act), a permit to use an 'Apparatus for the Bacteriolytic Treatment of Sewage' (comprising one septic tank and one leach drain) was granted for the Truckstop and the dwelling. Reserve 29878 is vested with the Shire 14 The Land Act 1933 (WA) (Land Act) commenced on 6 March 1934,2 pt 3 of which dealt with the establishment and management of reserves. By s 29(1) the Governor had power to reserve to the Crown and dispose of in such manner as for the public interest may seem fit, any lands including for, relevantly, 'sanitary depots'.3 15 On 25 July 1969, the Governor, by notice in the Gazette, established Reserve 29878 (Effluent Disposal), on Lot No 82, on Diagram 73544 within the Wubin townsite.4 By instrument dated 22 October 1969, the Governor, pursuant to s 33 of the Land Act, vested Reserve 29878 with the Shire for the purposes of 'Effluent Disposal'.5 The vesting was published in the Gazette on 7 November 1969. 16 From 22 October 1969, Reserve 29878 was vested in, and held by the Shire, for the purpose of 'Effluent Disposal'.6 By order, Reserve 29878: … shall vest in and be held by the [Shire] in trust for the purposes aforesaid, with power to the [Shire], subject to the approval in writing of the Minister for Lands being first obtained, to lease the whole or any 2 Government Gazette (Gazette), 2 March 1934, page 269. 3 Land Act, s 29(1)(h). 4 Gazette, 25 July 1969, page 2146. 5 Respondent's Bundle, page 5. 6 Gazette, 7 November 1969, page 3490. -- 5 of 26 -- [2026] WASAT 100 Page 6 portion of the said Reserve for any term not exceeding 21 years from the date of the lease. 17 By s 31(3) of the Land Act, Reserve 29878 was vested as a Class C Reserve. 18 At the time of its vesting, no effluent was disposed into Reserve 29878. 19 Reserve 29878 remains an 'effluent disposal site'. It is shown on Lot 82 on Deposited Plan (DP) 173544, pursuant to CLT LR 3008/462, and comprises an area of 4,046 m2. 20 On 16 October 1970, the Governor ordered, pursuant to s 267 of the then Local Government Act 1960 (WA), that the Shire may lease Reserve 29878 for up to 20 years without calling for public tenders. Effluent disposal from the Truckstop 21 On 28 January 1983, the Health Department approved a septic system for the Truckstop, comprising two septic tanks and two 36 metre leach drains. 22 On 18 August 1988, the Health Department approved a septic system for the Truckstop comprising two septic tanks (one being a new larger tank) and three 10 metre inverted leach drains. A Shire inspection confirmed the approved septic system was being installed. 23 On 22 March 1989, the Shire wrote to the then operator of the Truckstop, advising that the septic system appeared to have insufficient capacity to dispose of the volume of sewerage being generated. Effluent Treatment System 24 On 9 January 1990, on advice from the Shire, the Health Department approved the disposal of effluent from the Land, via a sewerage pipe, into a 30 m x 25 m x 1.2 m oxidation pond located within Reserve 29878. 25 Between November 1993 and March 1994, the Shire extended the sewerage pipe to connect two other commercial operators: Wubin Hotel and another roadhouse. From that time, all three commercial operators in Wubin could dispose of their effluent via the Effluent Treatment System. -- 6 of 26 -- [2026] WASAT 100 Page 7 26 It is apparent that the Shire's decision to extend the sewerage pipe, to establish the Effluent Treatment System, resulted in what was a communal effluent system for the purposes of the then Health Act. Accordingly, the Effluent Treatment System required, but did not receive, the Governor's approval pursuant to s 55 of the then Health Act. Concerns with the Effluent Treatment System 27 On 26 February 2013, the Health Department emailed the Shire with respect to sewerage arrangements for Wubin. The Health Department had read a planning report that stated Wubin was serviced by a deep sewerage scheme.7 28 The Health Department was unaware that Wubin had a deep sewerage scheme, as no relevant licence had been granted by the Economic Regulation Authority.8 The Health Department requested details of the Effluent Treatment System so that its legal status could be determined. Road Train Assembly Area 29 By order pursuant to s 29 of the Land Act, on 11 June 1996, Reserve 43349 was established and vested, by s 33(2), with the Commissioner of Main Roads (Main Roads WA) as a 'Road Train Assembly Area' (RTA Area).9 Reserve 43349 is located on Lot 94 on DP 91000 and is only 40 metres from Reserve 29878. 30 On 8 May 1997, an easement (G469758) was granted over Reserve 43349 (on DP 75201) in favour of the Shire for the designated purpose of 'Water, Sewerage and Stormwater' (Easement). The Easement facilitated a connection between Great Northern Highway, the RTA Area and Reserve 29878.10 31 In 2013, Main Roads WA proposed to expand the RTA Area to allow for the reconfiguration of trucks, given the varying road permit requirements for Great Northern Highway. 32 To accommodate the expansion of the RTA Area, in November 2013, the Shire commissioned an engineering firm (Cardno) 7 Respondent's Bundle, page 22. 8 Established pursuant to pt 2 of the Economic Regulation Authority Act 2003 (WA) and which had functions pursuant to s 207 of the Water Services Act 2012 (WA). 9 Gazette, 11 June 1996, pages 2494 and 2495. 10 Respondent's Bundle, pages 51 and 52. -- 7 of 26 -- [2026] WASAT 100 Page 8 to undertake an assessment of wastewater disposal options for each of the commercial businesses utilising the Effluent Treatment System. 33 Cardno advised that of the three commercial businesses, the Wubin Hotel, which was not fully operational at the time, consumed the largest volume of water. Once the hotel was fully operational, Cardno estimated the volume of wastewater delivered into Reserve 29878 would increase from 16,000L/day to 23,000L/day.11 34 Cardno further advised that the Effluent Treatment System would not be sufficient to accommodate the planned expansion to the RTA Area. Two possible wastewater treatment options were identified: a new wastewater pond or a sewage treatment plant. 35 Cardno's advice was that, in terms of a new wastewater pond, a new location, proximate to the Wubin townsite, for the pond would need to be identified and secured. With respect to a sewage treatment plant, this would produce greater volumes of wastewater and involve significantly higher costs.12 36 On 2 July 2014, Cardno sought approval from the Health Department for an interim disposal system, via a 32m3 holding tank (Proposed Temporary System), to deal with effluent from the three commercial properties for a 6-month period. 37 On 31 July 2014, the Health Department advised the Proposed Temporary System required the Governor's approval under pt IV of the (then) Health Act. As a communal effluent system, it was unable to be authorised by the then Executive Director, Public Health (ED Public Health), under pt 2 of the then Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA).13 38 At the same time, the Health Department reiterated its earlier advice that the Proposed Temporary System was incapable of approval. The Shire was advised that one option would be for each of the three commercial premises to each establish holding tanks within their own lot boundaries. 11 Respondent's Bundle, page 34. 12 Respondent's Bundle, page 35. 13 Respondent's Bundle, page 57. -- 8 of 26 -- [2026] WASAT 100 Page 9 The Shire decides to discontinue the Effluent Treatment System 39 In February 2025, (current) officers from the Shire became aware that the Governor had never approved the Effluent Treatment System, and that the Applicant, together with the two other commercial operators, had been discharging their effluent into Reserve 29878 for many years unlawfully and without charge. 40 In March and April of 2025, Shire officers met with the Applicant and the two other commercial operators, to advise of their recommendation that the Council discontinue to make available the Effluent Treatment System. 41 On 22 April 2025, the Effluent Treatment System was considered by the Council. At that meeting, the Council were advised inter alia: (a) that maintaining the Effluent Treatment System costs the Shire approximately $2,500 per annum; (b) of the two wastewater treatment options that Cardno outlined in the context of expansion of the RTA Area, but that neither option was regarded as viable. The wastewater pond was not viable because Reserve 29878, while designated as being for 'sewerage', was not large enough based on Cardno's calculations on the volume of effluent being discharged. On the other hand, the sewerage treatment plant would require the revesting of Vacant Crown Land, a statutory process that would take years to navigate; (c) of the costs of providing a comprehensive deep sewerage system for Wubin, estimated to be approximately $2.5M, but which would only derive annual revenue of $61,834 ($28,240 from residential properties and $33,594 from commercial properties); (d) that if the Shire discontinued the Effluent Treatment System, the three commercial businesses would be required to make their own arrangements for the discharge of effluent. This would involve a one-off expense for each. However, if deep sewerage was provided, the Truckstop, relevantly, would be required to pay $5,183 in annual sewerage fees. For this reason, in an overall sense, it would be cheaper for each of these businesses to make their own arrangements for effluent disposal, as against the annual fees that deep sewerage would involve; and -- 9 of 26 -- [2026] WASAT 100 Page 10 (e) the Shire 'has no responsibility for providing the [Effluent Treatment System] and should not be providing a service to selected businesses at no cost'.14 42 Consistent with the staff recommendation, on 22 April 2025, the Council resolved to, in effect, discontinue the Effluent Treatment System and to give each of the businesses until 30 June 2026, some 14 months, to make their own arrangements for the treatment of effluent. In its resolution, the Council authorised the Notice to be issued. The Notice 43 The Notice provides inter alia that:15 (a) The Shire considers it advisable that the Land and the Truckstop should be provided with an apparatus for the treatment of sewage. (b) Pursuant to s 99(3) of the HMP Act, the Applicant is required by 30 June 2026 to provide and install an apparatus for the treatment of sewage for and in connection with the Land and the Truckstop in a manner that complies with s 107 of the HMP Act. Conduct of the Review 44 The Review was lodged on 4 September 2025. Both parties were legally represented. 45 On 26 September 2025, the Tribunal made orders requiring the parties to file their respective cases and relevant materials. 46 On 17 February 2026, the parties attended the Conference where a representative from the Health Department had been invited to attend. Following the Conference, on 23 February 2026, the Shire withdrew the Notice. The Review was listed to directions on 27 February 2026, later adjourned by consent to 13 March 2026. 47 On 13 March 2026, the Tribunal made orders that had been agreed, the effect of which was to evince the parties' consent to the Shire reconsidering the Notice pursuant to s 26(3) of the SAT Act and thereafter being withdrawn. The Review was then withdrawn pursuant to s 46(1) of the SAT Act. Programming orders were also made for the determination of the Costs Application. 14 Respondent's Bundle, page 63. 15 Respondent's Bundle, page 76. -- 10 of 26 -- [2026] WASAT 100 Page 11 Statutory framework for the Notice 48 The Shire is established pursuant to pt 2 of the Local Government Act 1995 (WA) (LG Act), with the general function of providing 'for the good government of persons in its district'.16 49 The Notice was issued pursuant to the HMP Act. On 24 January 2017, by reason of the commencement of the Public Health Act 2016 (WA) (PH Act), the residual provisions of the Health Act were renamed to become the HMP Act.17 In terms of administration functions, the ED Public Health under the Health Act,18 became the Chief Health Officer (CHO),19 under the HMP Act.20 50 By its long title, the HMP Act is 'an Act to deal with certain matters concerning public health'. 51 Part II of the HMP Act is directed to its administration. Division 1 deals with, relevantly, the roles of the Minister and the CHO. Division 2 provides, relevantly, that 'each local government is hereby authorised and directed to carry out within its district the provisions of this Act and the regulations, local laws, and orders made thereunder'.21 52 Section 36(1) provides a right of review for 'any person aggrieved by any order or decision of a local government'. Part IV: Sanitary provisions 53 Part IV of the HMP Act deals with 'sanitary provisions'. An overview of the statutory scheme pt IV, as it relates to the issue in the Review, follows. Division 1: Sewerage and drainage schemes 54 All public sewers made at the cost of, or acquired, by a local government, shall vest in and belong to the local government.22 If a public sewer was not made by the local government, the Governor may 16 LG Act, s 3.1(1). 17 Public Health (Consequential Provisions) Act 2016 (WA), pt 2. 18 Health Act 1911 (WA), s 3(1). 19 HMP Act, s 3(1) provides that the 'Chief Health Officer' has the meaning in s 4(1) of the PH Act. Section 4(1) of the PH Act defines the 'Chief Health Officer' to be the person designated as the Chief Health Officer, pursuant to s 11(1) of the PH Act. 20 HMP Act, sch 6, cl 3(1). 21 HMP Act, s 26. 22 HMP Act, s 53(1). -- 11 of 26 -- [2026] WASAT 100 Page 12 place that public sewer under the control of the local government.23 A 'sewer' includes 'sewers and drains of every description'.24 55 Local governments may construct and maintain sewers.25 By s 55(1), no sewer for the treatment of 'sewage'26 shall be constructed and carried out without the approval of the Governor, save where the CHO is first satisfied that the scheme is sound and that the carrying out of the works will not exceed $2,000.27 Plans of the proposed scheme need to be prepared,28 then forwarded to the CHO, who then reports to the Minister.29 Local government officers, agents or engineers may enter lands to make surveys and take levels.30 56 The local government proposing the scheme must give notice to any other local government whose district is included in the works area.31 Notice of the proposed scheme is to be published in a local newspaper and the Gazette.32 The Minister cannot forward the scheme to the Governor until such notice has been given.33 Copies of the plans and specifications of the proposed scheme are to be available for inspection.34 57 Any person likely to be injuriously affected by the proposed works may object. Any objections are lodged with the Minister who may forward to the Governor.35 58 The Minister, if satisfied that inter alia the revenue estimated to be derived from the proposed works is sufficient to justify the undertaking, and that the scheme will benefit the district, may submit the proposed scheme to the Governor for approval.36 23 HMP Act, s 53(2). 24 HMP Act, s 3(1). 25 HMP Act, s 54. 26 HMP Act, s 3(1) defines 'sewage' to mean 'any kind of sewage, nightsoil, faecal matter or urine, and any waste composed wholly or in part of liquid'. 27 HMP Act, s 55(1). 28 HMP Act, s 55(2). 29 HMP Act, s 55(5). 30 HMP Act, s 56. 31 HMP Act, s 57(1). 32 HMP Act, s 57(2). 33 HMP Act, s 57(3). 34 HMP Act, s 59. 35 HMP Act, s 58(1). 36 HMP Act, s 60. -- 12 of 26 -- [2026] WASAT 100 Page 13 59 If the scheme is approved, local governments are authorised to enter upon any lands to construct, extend, maintain, repair, alter or improve such works.37 60 The local government may recover its costs in undertaking sewerage works, if not otherwise defrayed from loan moneys, where such works will be of special benefit to a particular portion of its district (known as a 'limited scheme'). The amounts recoverable from owners shall be proportionate to the value of their rateable land. No direction or order given or made for the recovery of such moneys shall be subject to appeal or review.38 The local government may enter into agreements with the owners of premises in a limited scheme.39 61 In providing the scheme, the local government may take and acquire any land deemed necessary pursuant to pt 9 of the Land Administration Act 1997 (WA) (LA Act). Division 2: Connection to drains and sewers of local government 62 By s 72, when a sewer is ready for use, the local government may give notice to require an owner or occupier of any land situate in its district and capable, in the opinion of the local government, of being drained into such sewer, to connect to the sewer. Division 3: Disposal of sewage 63 Section 95 authorises a local government, for the purpose of receiving, storing, disinfecting, deodorising, purifying, or otherwise disposing of sewage, to construct any works, or enter a contract for the use, lease or purchase of buildings and equipment and to contract to supply sewage to any person, provided that in doing so no nuisance is created. 64 The local government, subject to the CHO's approval, may deal with any land held for sewage purposes in such manner as it deems to be most profitable, by entering into leases, contracts or farming such land, provided that, in entering into such arrangements, the local government ensures that provision is made for effectively disposing of all the sewage, but may not create a nuisance or endanger public health. 37 HMP Act, s 62. 38 HMP Act, s 63. 39 HMP Act, s 64. -- 13 of 26 -- [2026] WASAT 100 Page 14 Division 4: Sanitary conveniences 65 Pursuant to s 99(1), no person shall erect, rebuild, maintain, or use any 'house', or keep or use or suffer to be kept or used any public place or private place, without providing for the same sanitary conveniences, and also a bathroom and laundry and cooking facilities, to be provided pursuant to any local laws of the local government. 66 Under the HMP Act, a 'house' includes … 'any building or structure, whether temporary or otherwise, including tents and vans, and includes a place of worship, school, factory, workroom, shop, hotel, public house, or other premises of a licensed victualler …'.40 67 A 'sanitary convenience'41 includes 'urinals, water-closets, earth-closets, privies, sinks, baths, wash troughs, apparatus for the treatment of sewage, ash-pits, ash-tubs, or other receptacle for the deposit of ashes, faecal matter, or refuse, and all similar conveniences'. 68 By s 99(3), if a local government considers it advisable that any house, public place or private place, should be provided with an apparatus for the treatment of sewage, it may cause written notice to be served on the owner of the house or place requiring, where relevant, such installation and connection within a time specified in the notice. In installing and connecting such apparatus, s 107 and any relative local laws such be complied with. 69 A failure to comply with the requirements of a s 99(3) notice is an offence.42 In the event of non-compliance, a local government may undertake the requisite works and recover expenses incurred.43 Until paid, such expenses operate as a charge on the land.44 70 Where requested, a local government may provide and install an apparatus for the treatment of sewage, or supply and install in the premises any bath, basin, sink or trough, and the pipes and fittings necessary for the proper functioning thereof.45 The local government may agree that its expenses may be paid off in instalments.46 Until paid, such expenses are a charge on the land.47 40 HMP Act, s 3(1). 41 HMP Act, s 3(1). 42 HMP Act, s 99(4). 43 HMP Act, s 99(4a). 44 HMP Act, s 99(5). 45 HMP Act, s 100(1). 46 HMP Act, s 100(2). 47 HMP Act, s 100(3). -- 14 of 26 -- [2026] WASAT 100 Page 15 71 A local government may provide and maintain, in proper and convenient locations, public sanitary conveniences, any may levy and collect charges for their use.48 72 In lieu of, or in addition to, a sanitary rate, a local government may provide for the proper disposal of sewage, whether within the district or not, by making an annual charge per pan or other receptacle, payable in one sum or by equal monthly or other instalments in advance, in respect of every house or place provided with the service.49 73 By s 107, the local government shall provide that, relevantly, any sanitary convenience, and any apparatus for the treatment of sewage, within its district is constructed and kept so as not to be a nuisance or dangerous or injurious to health.50 The construction and installation of any such apparatus is an offence unless approved by the local government or, where applicable, the CHO.51 Division 5: Scavenging, cleansing, etc 74 A local government may of its own volition, or when directed to by the CHO, undertake or contract to arrange for, inter alia, the cleansing of sanitary conveniences and drains.52 The costs or providing said services are recoverable.53 The undertaking of such works is to follow the detailed procedure set out in s 116. 75 Section 119 provides that, with the consent of the Governor, the local government may, from time to time, set apart any portion of its reserves or other lands as a site for the deposit and disposal of sewage, rubbish, or refuse; provided that, in using any land for such purpose, the local government shall in every case conform to the requirements of the CHO. If the local government fails or neglects to do so, the Governor may revoke their consent, whereupon the use of the land for that purpose becomes unlawful. 76 The CHO may make such orders as he may think fit for improving the condition of, or for closing and prohibiting the further use of, any 48 HMP Act, s 105. 49 HMP Act, s 106. 50 HMP Act, s 107(1). 51 HMP Act, s 107(2). 52 HMP Act, s 112(1). 53 HMP Act, s 113. -- 15 of 26 -- [2026] WASAT 100 Page 16 place for the reception, utilisation, or deposit of sewage, refuse matter, or rubbish.54 Applicant's submissions in support of its Costs Application 77 The Applicant submits that the Shire was, at all relevant times, the trustee for Reserve 29878.55 78 Since 2013, the Shire has been aware that the 'trust property' has operated without a lawful scheme for the treatment of effluent. The Shire was negligent in not ensuring that the Effluent Treatment System was lawful, in that it has failed to secure the necessary authorisations under the Health Act, now the HMP Act. 79 For many years, successive owners of the Truckstop, including the Applicant, have discharged effluent into Reserve 29878 via the Effluent Treatment System. These owners have undertaken plumbing works for this purpose and, on each occasion, obtained the Shire's approval. 80 Having become aware of its failure to obtain the necessary authorisations under the HMP Act, in April 2025, the Shire unilaterally decided to discontinue the Effluent Treatment System. In doing so, it breached its duty as trustee of Reserve 29878. 81 Rather than proposing alternative arrangements for the treatment of effluent, the Shire determined instead to discontinue the Effluent Treatment System and ultimately issue the Notice. 82 As trustee, the Shire had a positive duty to ensure that Reserve 29878 continued to be available for its vested purpose.56 Rather than seeking to ensure that the Effluent Treatment System was made lawful, the Shire instead issued the Notice. 83 While the Health Department may have given inconsistent advice, the Shire should have obtained independent advice, rather than terminating the Effluent Treatment System. Accordingly, the Respondent failed to act in the best interests of the beneficiaries of the trust (including, relevantly, the Applicant).57 54 HMP Act, s 120. 55 Applicant's Written Submissions in Support of Costs Application, 10 April 2026 (Applicant's Submissions), para 5. 56 Applicant's Submissions, para 10. 57 Applicant's Submissions, para 18. -- 16 of 26 -- [2026] WASAT 100 Page 17 84 The issuing of the Notice placed significant pressure on the Applicant. The Truckstop relies 'upon a consistent and safe sewerage system to ensure disposal of material'.58 The Notice gave rise to many risks, including potential breaches of the Environmental Protection Act 1986 (WA), the Corporations Act 2001 (Cth) and Food Act 2008 (WA) (Food Act), if it continued to utilise the Effluent Treatment System. Based on these risks, by reason of the Notice, the Truckstop ceased trading. 85 The Shire did nothing to address the underlying compliance issues for the Effluent Treatment System until February 2026, when, following the Conference, it belatedly decided to seek approval. 86 The Shire's failure to take the steps to regularise the Effluent Treatment System, to continue to make Reserve 29878 available for its designated purpose of effluent disposal under the (now) LA Act, and to instead issue the Notice, was unreasonable conduct that should attract a costs order. 87 In support of its Costs Application, the Applicant cites the Court of Appeal decision in Questdale,59 as well as the applicable principles applying to costs, as explained in Citygate Properties,60 and Ransberg.61 88 The Costs Application attaches a Bill of Costs (Bill), prepared pursuant to Legal Profession (State Administrative Tribunal) Determination 2024 (Costs Determination). The Bill is for $31,999.50. Respondent's submissions opposing the Costs Application 89 The Respondent submits it was provided with inconsistent advice from the Health Department as to whether the Effluent Treatment System could be approved. Following the Conference and having made the decision to apply for the Governor's consent, it withdrew the Notice. 90 By reference to the statutory scheme for costs, set out in div 5 of pt 4 of the SAT Act, the Respondent submits that the starting point is that, in the Tribunal, each party should bear their own costs. 58 Applicant's Submissions, para 33. 59 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 (Questdale) (Martin CJ, Murphy JA and Corboy J). 60 Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246. 61 Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S); (2017) 92 SR (WA) 230. -- 17 of 26 -- [2026] WASAT 100 Page 18 91 Having regard to the Tribunal's decisions in Papadopoulos,62 and Frankowiak,63 the Respondent submits that, in general terms, in cases where there has been no determination on the merits, the discretion to award costs should only be exercised unless it can fairly be concluded that the party seeking its costs was clearly more likely to succeed. 92 In the context of the Review, there was no determination on the merits. The Land has a 'complex history', and many of the facts remained in dispute, despite the Notice being revoked. Accordingly, it is not possible to discern whether the Applicant was clearly more likely to succeed if the Review progressed to an adjudicated outcome. 93 In terms of the merits, the Shire notes that it was empowered to issue the Notice given that the Truckstop, a commercial operation, had no apparatus for the treatment of effluent, and where the Respondent reasonably considered it appropriate that such arrangements be in place. 94 The Shire observes that, to set aside the Notice, the Tribunal would have had to reach the view that the Applicant should be permitted to discharge its wastewater via the Effluent Treatment System, which the Health Department had advised was unauthorised and unlawful. Against that backdrop, the Respondent submits that the Tribunal:64 … could not possibly conclude that a notice requiring a commercial operation to install its own apparatus for the treatment of its own sewage was clearly more likely to be set aside than affirmed. 95 Given that the purpose of the HMP Act is directed to matters concerning public health, there is no basis for a conclusion that the Respondent acted unreasonably in issuing the Notice. 96 As to the relevant background, in early 2025 the (current) Shire Chief Executive Officer (CEO) became aware of unresolved issues relating to the authorisations for the Effluent Treatment System. The Shire met with the Applicant in March and April 2025. Following these consultations, in April 2025, the Shire Council resolved to require the Applicant, together with the two other properties utilising the Effluent Treatment System, to make their own effluent disposal arrangements by 30 June 2026. 62 Papadopoulos and City of Stirling [2015] WASAT 126. 63 Frankowiak and Chambers [2012] WASAT 175. 64 Respondent's Submissions in Relation to Costs, 7 May 2026 (Respondent's Submissions), para 14. -- 18 of 26 -- [2026] WASAT 100 Page 19 97 Following the Council resolution, on 23 April 2025, the CEO wrote to the Applicant and explained that the Effluent Treatment System was non-complaint and does not have approval to operate (CEO's Letter). The CEO's Letter also explained that the Shire had investigated the options outlined by Cardno but did not consider these options to be suitable. Due to the unavailability of a more comprehensive sewerage arrangement, each landowner will need to seek an alternative solution for the treatment of their sewerage utilising their own properties.65 The CEO's Letter then set out the Council resolution that she was required to action:66 That Council requests the [CEO] to advise BP Wubin, Wubin Hotel and [the Truckstop], that effective from 30 June 2026 (or earlier if directed by the Department of Health), the current sewerage arrangements [the Effluent Treatment System] will cease to operate and that it will be the business owner's responsibility to find an alternative sewerage solution. 98 In issuing the Notice, the Shire explained that it did not consider that there was any basis to cancel the registration of the Truckstop under the s 112(2) of the Food Act, nor did it consider that the decision to discontinue the Effluent Treatment System constituted a nuisance to public health for the purposes of s 184 of the HMP Act. 99 Accordingly, contrary to the Applicant's submissions, the Notice did not require the Truckstop to 'cease trading', and the Applicant's decision in that regard was made of its own volition. 100 In addition, the Respondent rejects the Applicant's contention that it was under any 'trust obligation'. The Applicant's submissions thereon are 'misconceived and, in any event, denied'.67 101 With respect to the Applicant's submissions that the Shire should have sought to regularise the Effluent Treatment System, rather than issue the Notice, the Shire says it was acting under the advice of the Health Department. However, to clarify the situation, the Shire has applied for approval of the Effluent Treatment System pursuant to s 55 of the HMP Act. However, the Shire expects it will be refused, as it does not comply with the contemporary standards for the disposal of sewage. 65 Respondent's Bundle, pages 64 to 66. 66 Applicants Bundle of Documents, page 103. 67 Respondent's Submissions, para 20. -- 19 of 26 -- [2026] WASAT 100 Page 20 102 In the circumstances of the Review, a costs order against the Shire is not fair and reasonable. Costs in the Tribunal 103 The HMP Act is silent on the question of costs. Accordingly, the Costs Application falls to be assessed pursuant to div 5 of Pt 4 of the SAT Act. 104 In broad terms, the presumptive position under the SAT Act is that unless otherwise specified, parties bear their own costs in the Tribunal.68 Nevertheless, pursuant to s 87(2), the Tribunal has power to make a costs order in favour of a party. 105 The discretion with respect to costs includes the power to make an order for the payment of an amount to compensate the other party for any 'expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought'.69 106 Without limiting the range of considerations that may inform a decision on costs, where the matter is within its review jurisdiction, the Tribunal is to have regard to:70 (a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits; and (b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits. 107 The Tribunal may make an order fixing the payment of costs. Otherwise, costs are to be assessed or settled in accordance with the State Administrative Tribunal Rules 2004 (WA) (SAT Rules).71 108 In Questdale,72 the Court of Appeal explained that the legislative intent that informs s 87(2) is that the discretion to make a costs order is to be exercised if such an order is fair and reasonable in all the circumstances. The nature of the dispute will be relevant to the exercise 68 SAT Act, s 87(1). 69 SAT Act, s 87(3). 70 SAT Act, s 87(4). 71 SAT Act, s 89; see also SAT Rules, r 43. 72 Questdale [49]. -- 20 of 26 -- [2026] WASAT 100 Page 21 of the discretion, and the onus is on the party seeking a costs order in its favour.73 Disposition 109 For the following nine reasons, the Costs Application fails. 110 Firstly, in pressing its Costs Application, the Applicant carries the burden of demonstrating why a costs order is appropriate. In my view, the Applicant has not discharged that onus. As I will come to explain in some detail, I am not satisfied that, in the circumstances, the Shire's decision to issue the Notice could be said to be unreasonable. 111 Secondly, the parties have left me in an unfortunate position in evaluating the merits of the Costs Application. Neither party has canvassed, in any detail at all, the statutory framework which authorised the Shire to issue the Notice, and which is the basis of the Review. Therefore, I have been left to work through what is a dense, and somewhat dated, statutory scheme in the absence of any detailed submissions as to its scope and operation. 112 The Tribunal commenced on 5 January 2005, over 20 years ago. I have elsewhere noted that decisions on its approach to costs, including in its review jurisdiction, are now legion.74 Where an applicant seeks a costs order in its favour in the Tribunal's review jurisdiction, it will ordinarily be the case that the decision-makers conduct needs to be evaluated in the light of, relevantly the HMP Act, read with the SAT Act. It is against that framework that the conduct that is said to give rise to a costs order will, in most instances, fall to be considered. The recent decisions in Oasis @ Newman,75 Zorzi,76 and Danni77 very much reflect such an approach. 113 However, aside its bare assertion that the Shire was trustee of Reserve 29878, which I will come to, the Applicant's submissions are not directed to the Shire functions under pt IV of the HMP Act, as a basis for its contention that, in issuing the Notice, the Shire acted unreasonably. 114 Division 4 of pt IV is directed to sanitary conveniences. By s 99(1), no person is entitled to use a house, which would include the Truckstop, without providing for sanitary conveniences which, relevantly, includes 73 Questdale [51]. 74 Oasis @ Newman Pty Ltd and Shire of East Pilbara [2025] WASAT 136 [81]. 75 Oasis @ Newman Pty Ltd and Shire of East Pilbara [2025] WASAT 136. 76 Zorzi and Town of Cambridge [2025] WASAT 77 (S). 77 Danni and Town of Cambridge [2023] WASAT 123. -- 21 of 26 -- [2026] WASAT 100 Page 22 an apparatus for the treatment of sewage. Section 99(3) authorises a local government to issue a written notice if it considered advisable that the house be provided with an apparatus for the treatment of sewage. By reason of the Effluent Treatment System being unauthorised under the HMP Act, and in the context of advice that it was incapable of approval, in my view, the Shire's decision to issue the Notice cannot be regarded as anything but reasonable in the circumstances. 115 In my view, in the context of the Review, for the Applicant to demonstrate that the Shire's decision acted unreasonably in issuing the Notice, it must establish that the Shire was obligated, either pursuant to a written law or otherwise, to continue to provide effluent disposal services for the Land. 116 However, and again, noting I have not had the benefit of detailed argument, the statutory scheme that I have broadly canvassed above does not disclose that the Shire has a duty, or is otherwise obligated, to provide effluent disposal services within its district. As I will come to, I do not accept the Applicant's submissions that the Shire was required, as 'trustee' of Reserve 29878, to continue to make available the Effluent Treatment System for its benefit. 117 While it has broad statutory powers to undertake such works and enter into contracts for the same, in all instances, these are powers that the Shire may choose to exercise. I can see nothing in the text, context and purpose of pt IV of the HMP Act that could be said to furnish an intent that the Shire is obligated to provide effluent disposal services within its municipal district. Furthermore, there is nothing in that statutory scheme that evinces an intention that the Shire, if it chooses to provide such services, is to do so without charge. 118 Thirdly, leaving to one side any statutory obligation, the Applicant is unable to point to any contractual or other arrangement it had with the Shire for the provision of effluent disposal services. The facts in this case establish only that Reserve 29878 was vested with the Shire for effluent disposal, and that the Shire for many years have allowed the Truckstop, and two other commercial operators in Wubin, to dispose of their wastewater without charge. 119 Fourth, having been advised that the Effluent Treatment System had not been approved by the Governor, and was therefore not lawful, the Shire was entitled to consider whether it ought to continue to deal with the Truckstop's effluent, at an annual cost of $2,500. In my view, -- 22 of 26 -- [2026] WASAT 100 Page 23 in such circumstances, there is nothing unreasonable in the Shire, a small wheatbelt local government, deciding that it could no longer provide the commercial properties in Wubin with, in effect, free wastewater services, and that each of these businesses should instead make their own arrangements. 120 True it is that the Shire's decision to issue the Notice stems back to the Health Department's advice from 2013. That advice prompted the Shire, at that time, to engage Cardno which devised the Proposed Temporary System. However, the Shire was advised that, because it was a communal system, the Proposed Temporary System also required the Governor's approval. 121 While, ideally, the Shire should have immediately acted to address the apparent compliance issues with the Effluent Treatment System, its dereliction in doing so has only benefitted the Applicant, as it has enjoyed more than a decade of being able to discharge its effluent into Reserve 29878, without charge. 122 In 2025, once the current CEO became aware of the compliance issues with the Effluent Treatment System, the Shire was entitled, indeed obliged, to again visit upon the question as to whether it would continue to provide effluent disposal services for the Truckstop. 123 I have, above, recorded the details of the Shire Council's meeting of 22 April 2025 in some detail. I am satisfied, and I find, that there is nothing in that conduct, nor the Council's resolution, which ultimately led to the Notice, that could be regarded as unreasonable. 124 Fifth, while in the course of the Review, the Shire decided to withdraw the Notice, and to apply to the Governor, the reality is that had that been a viable option, in my view it is likely that Cardno would have advised as such in 2013. However, the advice from Cardo was, in effect, that Reserve 29878, at 4,046 m2, was not large enough and there was no other suitable location for a wastewater pond within or adjacent to the Wubin townsite. The fact that the Shire has now attempted to regularise the Effluent Treatment System should be seen as conciliatory and generous, not unreasonable conduct prompting an application for costs. Whatever decision the Governor ultimately makes on the Effluent Treatment System will provide some finality, and thus clarity, for both the Shire and the Applicant. 125 Sixth, I do not understand, nor accept, the Applicant's bare assertion that Reserve 29878 was 'trust property', that the Shire was its 'trustee' and -- 23 of 26 -- [2026] WASAT 100 Page 24 that, at the time it issued the Notice, it 'failed to act in the best interests of the beneficiaries of the trust'.78 126 While Reserve 29878 was, in 1969. initially vested, on trust, with the Shire for the purposes of 'effluent disposal', that is no longer the case. The LA Act commenced on 30 March 1998. Under the LA Act, a 'vesting order' under the Land Act transitioned to instead become a 'management order', meaning, relevantly, an 'order by which the care, control and management of a reserve are placed'.79 127 The LA Act, by sch 2, includes transitional arrangements for reserves established under the Land Act. Clause 14(2) of sch 2 states: Any land reserved under s 29 of the repealed Act and remaining so reserved immediately before the appointed day is to be taken to be land reserved under s 41 of [the LA Act]. 128 Clause 16(1) of sch 2 is directed to vesting orders made under the Land Act. It provides that any order made pursuant to s 33 of the Land Act that subsisted at the commencement of the LA Act, continues, as if it were a management order under, relevantly, s 46(3) of the LA Act. Under s 46(3), the Minister may confer on a management body the power, subject to s 18 of the LA Act, to lease or sublease Crown land. 129 It follows that, pursuant to s 46 of the LA Act, the Shire has 'care, control and management' of Reserve 29878 as a management body. A 'management body' being 'the person or persons with whom or which the care, control and management of a reserve are placed under … s 46(1)' of the LA Act.80 However, the effect of s 46(5) is that a management order 'does not create any interest in Crown land in the relevant reserve in favour of the management body of that reserve'. 130 Accordingly, the Applicant's submissions that Reserve 29878 is the Shire's 'trust property', do not reflect its functions under pt 4 of the LA Act. A management order, which is registered under Pt IIIB of the Transfer of Land Act 1893 (WA), creates statutory, not possessory, rights for the 'care, control and management' of reserves. Accordingly, the Shire holds no relevant interest in Reserve 29878 that would support a submission that it is, as matter of law, 'trust property'. 78 Applicant's Statement of Issues, Facts and Contentions, 9 December 2025, para 7; Applicant's Written Submissions in Support of Costs Application, 10 April 2026, paras 6 to 10. 79 LA Act, s 3(1). 80 LA Act, s 3(1). -- 24 of 26 -- [2026] WASAT 100 Page 25 131 Seventh, the nature of the reviewable decision also inclines against a costs order. As a matter of public health, the installation and maintenance of satisfactory 'sanitary conveniences' are fundamentally important, particularly for commercial land uses in regional locations that cater for the travelling public, such as the Truckstop. 132 In circumstances where the Shire had determined that it would not continue to operate the Effluent Treatment System, based on Health Department advice that it was incapable of approval, the decision to issue the Notice was not unreasonable. To the contrary, it is a decision which, in my view, aligns with the purpose of the HMP Act, being directed to protecting public health. 133 Eighth, I do not accept that, on being issued the Notice, the Applicant's decision to close the Truckstop was reasonable, nor is it a decision that bolsters its Costs Application. The Notice provided 14 months for the Applicant to put in place arrangements for the treatment of effluent. Moreover, the CEO's Letter explained that the Notice would not have implications for the Truckstop, in terms of its registration under the Food Act.81 Accordingly, the Shire cannot be held responsible for the commercial implications of the Applicant's unilateral decision to cease trading at the Truckstop. 134 Finally, in the circumstances, I am unable to accept that the Shire's decision could be said to be unreasonable. There is no basis on which I can be satisfied that the decision to issue the Notice was made anything other than in good faith, having regard to s 87(4)(b) of the SAT Act. The simple fact is that the Shire had long provided an outlet for the Truckstop's discharge of effluent in circumstances where those arrangements had not been approved under the HMP Act. 135 While the Shire could have sought approval for the Effluent Treatment System, it was under no legal or other obligation to do so. I can see no basis for a conclusion that the fact that because Reserve 29878 has a designated purpose of effluent disposal, has the result that the Shire is then required to provide and maintain what was, in effect, a free effluent disposal system for landowners, including inter alia the Truckstop. 136 Put another way, on my understanding of pt IV of the HMP Act, the fact that the Shire has management functions for Reserve 29878 does not then create a positive duty for it to establish and then operate the Effluent 81 Respondent's Bundle, pages 72 - 73. -- 25 of 26 -- [2026] WASAT 100 Page 26 Treatment System for the benefit of commercial land users in Wubin, including the Truckstop. Moreover, any communal effluent system proposed is within the discretion of the Governor, on advice from the CHO. 137 The Shire advised the Applicant on 23 April 2025 that the Effluent Treatment System would be discontinued, and that the Land would be required to arrange to treat its own effluent within 14 months. In my view, the Shire's subsequent decision to issue the Notice, which was consistent with the path forward that had been determined by the Council, was not unreasonable. 138 For these reasons, the Costs Application is dismissed. Orders The Tribunal orders: 1. The Applicant's Application for Costs dated 10 April 2026 is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DR S WILLEY, SENIOR MEMBER 25 AUGUST 2026 -- 26 of 26 --