A years-long dispute about the location of a flagpole involving a politician, her neighbour and the local shire has cost Esperance ratepayers more than $20,000.
Labor MLC Shelley Payne and Esperance resident Gemma Johnston each live at beachfront homes near Blue Haven, a five-minute drive from the town centre.
But ever since an Australian flag was raised outside Ms Johnston's property on Christmas Day 2020, parties have been warring over its location.
Flag in wrong spot
Ms Johnston's development approval said the flagpole must be at least 20 metres from her front boundary, and five metres from the side and rear boundaries.
Shortly after it was erected, the shire received a complaint from a neighbour saying it breached those conditions.
Emails between Ms Johnston and the shire, seen by the ABC, indicate this neighbour was Ms Payne, who was a Shire of Esperance councillor at the time.
Documents tabled in parliament last October show Ms Payne's family home is next to Ms Johnston's.
Ms Payne has not responded to the ABC's requests for comment.
The shire investigated and found the flagpole was indeed too close to the front boundary.
Ms Johnston said this stemmed from a simple misunderstanding – she believed the 20m was measured from Twilight Beach Road, not the boundary.
She was asked to move the flagpole.
She didn't — saying she wanted it near the ocean backdrop and moving it to a compliant position would have a bigger impact on her neighbour's view.
"There's many non-compliant structures around this town," she said.
"And I'm quite sure they don't look as beautiful as my flagpole."
In July 2021, she received another letter from the shire saying it would no longer pursue the matter.
Instead, it would take note of the unapproved structure and ask she fix it in the future.
Ms Johnston believed the case was closed.
Flagpole lands before council
However, in September 2021 the issue of Ms Johnston's flagpole came before council during a session that was closed to the public.
Ms Johnston questions how and why the matter came to council, given she believed it was resolved.
Shire president Ian Mickel said councillors asked to assess the matter.
"When our staff said, 'this is non-compliant but staff aren't going to do anything about it', council said 'Why?'," he said.
"It was as simple as that."
A shire spokesperson said it was standard procedure for the shire president to request for council to review a matter.
Ms Johnston believes it should have been made clear to the public that council's decision could potentially impact a former colleague and current politician.
But Cr Mickel said the identity of the complainant was irrelevant, because the flagpole was still non-compliant.
He said councillors were not told who made the complaint.
"There's a number of neighbours out in that area. It could have been any one of them," Cr Mickel said.
He said he was not sure if other councillors were aware about Ms Payne's potential involvement.
There is no record of any councillor declaring a conflict of interest before voting on the matter.
Councillors vote against recommendation
Shire officers recommended councillors drop the matter, saying further action would be "disproportionate to the minor nature of the breach".
But councillors voted 6-1 to issue Ms Johnston a directions notice — telling her to remove the flagpole within 60 days.
Failure to do so would see her fined up to $200,000 and $25,000 per day it remained past that deadline.
"My heart nearly stopped," Ms Johnston said.
"I was in shock."
Cr Mickel said councillors had very little discretion on planning matters, particularly in this case as it fell within a special control area.
The local planning policy for the area states no development likely to endanger the visual amenity of Twilight Beach Road and the coastal views from any lot or public place, and the ocean, will be allowed.
Jennifer Obourne was the only councillor to vote against the idea.
She still disagrees with the decision but did not want to comment, out of respect for the councillors' code of conduct and her colleagues.
Tribunal finds in shire's favour
Ms Johnston then took the matter to the State Administrative Tribunal (SAT), which she said was to ensure her point of view was heard.
Following mediation, the shire issued an amended directions notice in August 2022.
On March 30 this year, the SAT dismissed her appeal and ordered her to remove the flagpole within 65 days.
It noted moving the flagpole into a compliant position would likely have a greater impact on her neighbour's view.
The shire spent $21,897 on legal fees, defending council's decision, as well as considerable staff hours on the case.
"It's frightening to think about," Cr Mickel said.
He said one director was tasked to deal with "more than 100 emails" from Ms Johnston.
But he said the shire was obliged to have legal representation.
Ms Johnston also believed the cost was ludicrous, but said blame was with council.
Unlikely to set a precedent
Ms Johnston questioned whether the case would set a precedent.
In March 2022, the shire adopted a new compliance and enforcement policy, which recommended resources are prioritised according to the severity of a breach.
Cr Mickel said most people in Ms Johnston's position would simply move the flagpole.
"I reckon I could have done the job for 50 bucks," he said.
Ms Johnston said the issue has prompted her to run for council at the next election, to improve transparency.
But at this stage, it has not prompted her to move the flagpole.
"I haven't given up the fight yet," she said.
