Braley and Great Barrier Reef Marine Park Authority - [2002] AATA 856

DECISION AND REASONS FOR DECISION [2002] AATA 856

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/812

GENERAL ADMINISTRATIVE DIVISION          )
           Re      RICHARD DONALD BRALEY
  Applicant
           And    GREAT BARRIER REEF MARINE PARK AUTHORITY
  Respondent

DECISION

Tribunal Senior Member K L Beddoe

Date27 September 2002
PlaceBrisbane

Decision The Tribunal decides: (a) the decision under review be varied so as to substitute the revised draft deed (Document T44A); and (b) these proceedings have terminated in a manner favourable to the applicant.

(Sgd) KL Beddoe
Senior Member
CATCHWORDS
NATURAL RESOURCES – Great Barrier Reef Marine Park – permit – conditions placed on grant – whether conditions are prudent and reasonable

Great Barrier Reef Marine Park Act 1975, ss 5, 6, 7, 9, 30, 31, 32, 36, 38
Great Barrier Reef Marine Park Regulations 1983, reg 18

REASONS FOR DECISION

27 September 2002 Mr K L Beddoe, Senior Member

The applicant sought review of a decision of the respondent to impose conditions on the grant of a permit to conduct a research program in the Central Section of the Great Barrier Reef Marine Park.
The conditions in issue were as follows:
(a)The applicant, as permit holder, to provide a bond in favour of the respondent Authority in an amount of not less than $15,000; and
(b)The applicant maintain public liability insurance so as to indemnify the respondent Authority in an amount of not less $10 million.

There were also further proposed conditions which are no longer relevant.

On 1 May 2002 the respondent notified the applicant that it had reconsidered the insurance requirements attached to the permit and submitted a draft revised deed to be attached to the permit. The respondent also proposed that the permit be varied to take into account the revised deed. The applicant does not accept the revised deed but it became the focus of the hearing before the Tribunal.
The issues before the Tribunal are to be decided in accordance with the terms of the Great Barrier Reef Marine Park Act 1975 ("the Act") and the Great Barrier Reef Marine Park Regulations 1983 ("the Regulations").
The objects of the Act are set out in section 5. In essence those objects include making provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region. The objects are expressed to be confined to provisions within the legislative powers of Parliament but no issue arises (nor can arise here) as to the extent of those powers.
Section 6 of the Act provides for the establishment of the respondent Authority and section 7 of the Act sets out the functions of the Authority including such functions relating to the marine park as are conferred on the Authority by the Act and regulations. Sub-section 7 (1B) provides that the Authority is responsible for management of the marine park.
Section 9 of the Act provides that the Authority is a body corporate with perpetual succession, shall have a common seal, and may sue and be sued in its corporate name.
Section 30 of the Act provides for the creation of the Great Barrier Reef Marine Park consisting of such areas as are declared under section 31 of the Act to be parts of the Marine Park.
Section 31 of the Act provides for declarations of areas to be specified in proclamations by the Governor-General.
Where an area is declared by proclamation to be a part of the Marine Park, the following shall be taken to be part of the area in the Marine Park:
(a)the waters of any sea within the area;
(b)the sea-bed beneath any sea within the area;
(c)the sub-soil beneath any such sea-bed extending to such depth below the sea-bed as is specified in the Proclamation;
(d)(irrelevant); and
(e)(irrelevant)
Section 32 of the Act provides that as soon as practical after an area has been declared to be part of the Marine Park, the Authority shall prepare a zoning plan in respect of that area.
Sub-section 32(7) provides that in preparation of the zoning plan the Authority shall have regard to the following objects:
(a)the conservation of the Great Barrier Reef:
(b)the regulation of the use of the Marine Park so as to protect the Great Barrier Reef while allowing the reasonable use of the Great Barrier Reef Region;
(c)the regulation of activities that exploit the resources of the Great Barrier Reef Region so as to minimise the effect of those activities on the Great Barrier Reef:
(d)the reservation of some areas of the Great Barrier Reef for its appreciation and enjoyment by the public; and
(e)the preservation of some areas of the Great Barrier Reef in its natural state undisturbed by man except for the purposes of scientific research.
Document T3 is a copy of the Central Section Zoning Plan as amended. The Central Section Zone was declared by proclamation published in the Commonwealth of Australia Gazette of 15 October 1984 and the Zoning Plan was also notified in that Gazette. The zone is extensive but it is sufficient for present purposes to note that Orpheus Island, Magnetic Island and the waters and sea bed proximate to those islands are within the zone.
Section 36 of the Act provides that while a zoning plan is in force in relation to a zone, the Authority shall perform its functions and exercise its powers in relation to the zone in accordance with that plan and not otherwise.
In both General Use A zone and General Use B zone manipulative research is allowed only by written permission of the Authority. In relation to the Marine Park A and B zones research is permitted only by written permission of the Authority.
Section 38B of the Act provides sanctions for use or entry of a zone without the relevant permission in writing of the Authority.
Regulation 18 of the regulations provides for the making of an application for a relevant permit relating to, inter alia, the Central Section Zoning Plan.
In considering an application for a relevant permission, The Authority must have regard to the matters set out in sub-regulation 18(4). These includes:
(a)the objective of the zone (ie the Central Zone); and
(f)the likely effects of the proposed use on adjoining and adjacent areas…and the adequacy of safeguards for the environment; and
(h)in relation to any structure, landing area, farming facility, vessel or work to which the proposed use relates:
(i)…; and
(ii)the arrangements for removal upon expiration of the permission of the structure landing area, farming facility or vessel or any other thing that is to be built, assembled, constructed or fixed in position as a result of that use; and
(i)the arrangements for making good any damage caused to the Marine Park by the proposed activity; and
(j)any other requirements for ensuring the orderly and proper management of the Marine Park.
Regulation 22 confers a general power to grant or refuse an application and provides that a relevant permission may be granted subject to such conditions (if any) as the Authority specifies in the permission, including conditions indemnifying the Authority in respect of costs to the Authority that the permission holder's activities might incur (reg 22(s)(b)).
The relevant rights of review are set out in regulations 120, 121 and 122 but need not be set out here, there being no dispute that the Tribunal has jurisdiction to review the decision under review.
At the hearing the applicant conducted his own case and Mr Fellows appeared for the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. The Tribunal had the benefit of a video presentation and a power point presentation by the applicant. Both the video and hard copies of the power point presentation are before the Tribunal. Oral evidence was called by both parties.
Prior to the hearing of this matter the respondent conducted a further reconsideration of the decision under review. In effect the Authority proposed changes to its previous decision which is the decision under review. The proposed changes are contained in the draft documents that have been marked as T44A. It is those draft documents that reflected the respondent's position at the hearing and became the focus of the hearing. The draft documents represent a proposed variation of the decision under review favourable to the applicant.
The proposed permit ("the permit") is to cover the period 3 September 2001 to 30 May 2004. During the hearing the applicant complained as to the period of time but I did not understand him to put the period of the permit in issue. The matter was conducted on the basis that it is the conditions attached to the issue of the permit that are the subject of these proceedings.
The permit applies for use of and entry to zones in the Central Section, Townsville/Whitsunday Marine Park. The zones are specified as:
(a)General Use "A" Zone – White Lady Bay (Magnetic Island);
(b)Marine National Park "A" Zone – Hazard Bay (Orpheus Island); and
(c)Marine National Park "B" Zone – Pioneer Bay (Orpheus Island).
The purpose of use and the entry authorised by the permit is conduct of a research program being long term biological monitoring of clams (Tridacna gigas and Hippopus hippopus) involving the maintenance of not more than 200 clams in White Lady Bay and 500 clams in Hazard Bay. The permit also gave permission for transfer of not more than 30 Tridacna gigas and 10 Hippopus hippopus clams from Pioneer Bay to White Lady Bay.
The permit has standard conditions which are not contentions and "Deed Conditions" which are in dispute in these proceedings. There are also research program conditions which are not in dispute but have relevance to the disputed issues.
Clause 8 of the Deed Conditions requires the applicant, as the permit holder to execute, seal and deliver to the Authority, a deed in the form annexed to the permit.
The purpose of the Deed is to require the applicant to give effect to the deed conditions of the permit which require:
(a)a bond in relation to removal of any works in the Marine Parks and cleaning up the marine Parks; and
(b)maintenance of insurance cover as set out in the Deed (in effect public liability insurance cover for $5,000,000.

The proposed deed is to be a covenant and agreement between the respondent on the first part, the State of Queensland on the second part and the applicant on the third part. Clause 3.1 of the Deed requires removal of the works from the Marine Park in circumstances specified in the clause including the expiration of the permit. Clause 1.15 defined works as follows:
"1.15 'the works' means and includes all plant and materials comprising or used in connection with all constructions, erections, dredging, installations, structures, farming facilities (including the rearing or keeping of clams), vessels or aircraft of any kind associated directly or indirectly with the Permit and the use (authorised or unauthorised) of the Marine park in connection with the Permit."

The definition of "the works" was varied by the proposed deed by inserting "(including the rearing or keeping of clams)". The inserted words did not appear in the draft deed applicable to the decision under review (T40A).
The respondent is prepared to waive more onerous requirements as to clean up in the permit so as to only require a bond to indemnify the respondent for removal of "the works" from the Marine Park where the applicant fails to do so in accordance with clause 3.1 of the Deed.
There is also provision in the Deed for the applicant to rehabilitate and take preventative action in relation to the Marine Park as directed by the respondent and to indemnify the respondent for loss or damage reasonably incurred by the respondent where the applicant fails to take the action required under the Deed.
The Deed also includes obligations for the applicant to maintain public liability insurance to the extent of $5,000,000 per occurrence.
I make the following additional findings of fact:
(a)the applicant has conducted a long term research project in relation to clams with James Cook University at its research station and in waters contiguous with Magnetic Island;
(b)the project was funded by the Commonwealth Government;
(c)the project is scientific research for the purpose, inter alia, of halting the decline in clam numbers on the Great Barrier Reef;
(d)the applicant has continued aspects of this research on his own account;
(e)there is no suggestion that the applicant's research per se, is any threat to the Reef in particular or to the environment generally;
(f)the applicant has not been required to provide a bond and insurance cover in relation to previous permits granted by the respondent;
(g)the applicant has been and seeks to continue to conduct research at Orpheus Island and White Lady Bay;
(h)the respondent has been required to clean up areas of the Reef from time to time because of actions of permit holders and has sought reimbursement for its costs from the permit holder's bond;
(i)the respondent has been sued, as a party joined, because of negligence of permit-holders; and
(j)the applicant is self-employed operating his own laboratory under the name "Aquasearch".

Consideration

The essence of the applicant's case is found in two submissions:
(a)he has been conducting research on the Reef for many years without serious incident and has not previously been required to indemnify the respondent in the manner provided for in the Deed; and
(b)the research does not involve any installations on the sea bed, or otherwise, because he merely visits the sites a couple of time per year and conducts the research by diving from boats – the definition of the clams he has placed on the sea bed as works is inappropriate.
The applicant says that he should not be required to make the additional expenditure for the bond and insurance but refrained from making a case that the additional expenditure was beyond his means or likely to cause the research to be stopped because he could not afford it.
The requirement to insure the clams was inappropriate because such insurance was unobtainable.
The applicant should not have to mortgage his home to provide the security to meet the requirement for a bond. The period of the permit should be for five years.
The respondent's contentions are really at a tangent from the applicant's contentions and relate to the specific conditions of the permit.
Hatchery reared clams may need to be removed from the particular zone, hence the requirement for the indemnity. Removal of clams from Orpheus Island area has been necessary in the past and may become necessary in the future because of overcrowding.
The respondent does not seek to have the applicant insure the clams as asserted by the applicant. It does however, seek to indemnify itself from the cost of having to move the clams in the event that the research project is abandoned or otherwise ceased.
The respondent concedes that paragraphs 4(1)(a) and 4(1)(b) of the deed (T40A) may be deleted from the deed thereby removing the requirement for insurance to cover removal and clean up and insurance to indemnify the respondent in respect of any removal or cleanup.
The applicant's obligations are set out in clause 3 of the deed and include obligations to rehabilitate the Marine Park, as directed from time to time, and to indemnify the respondent for costs it may incur if the applicant fails to meet that obligation.
The applicant's obligations also include an obligation to take preventative action in relation to works as directed if the respondent is of the opinion that the works are unsafe, likely to cause damage, etc and to indemnify the respondent against loss if the applicant fails to take the required preventative action.
I am satisfied that for all the material before the Tribunal there is only a narrow issue in dispute between the parties. I have come to that conclusion after considering all the material before me.
Regulation 22 of the regulations provides for the respondent to grant a permit or refuse to grant a permit. A permit maybe granted subject to conditions specified in the permit being:
(a)conditions allowing the giving of authorities and specifying the maximum number of persons to whom authorities may be given; and
(b)conditions indemnifying the Authority in respect of costs to the Authority that the permission holder's activities might incur; and
(c)conditions appropriate to the attainment of the object of the Act (including a requirement that the person give the Authority a written undertaking in a form approved by the Authority).
In this case the relevant condition is in clause 8 of the permit and provides, relevant to this case, that within 60 days of the issue of the permit the applicant must execute seal and deliver as a deed to the respondent, a deed in the form annexed to the permit (T40A) and the respondent now accepts that the applicant will satisfy the condition of the permit if he executes the revised draft deed (T44A).
Both draft deeds come within the terms of regulation 22. I am satisfied that the respondent was entitled to prescribe condition 8 in the permit.
I accept that the perceived likelihood of the respondent having to move clams placed on the seabed by the applicant may be remote. However, there is an historical basis asserted for that perception and, in my view the respondent is entitled to seek to indemnify itself for any costs incurred in such a future removal of clams. It seeks to achieve this end by an extended definition of "the works" so that, somewhat surprisingly, the defined meaning includes the rearing or keeping of clams. The included meaning is not of the class of other works included in the definition and in particular "farming facilities". However, the express words are there and should be given effect. I can see no reason why the definition of "the works" cannot include the rearing or keeping of clams.
As to the public liability insurance requirement it might be thought surprising that a person apparently carrying on a business in his own name (and his partner's name) under the name Aquasearch would be without public liability insurance for a substantial amount.
In specifying the condition that the applicant have public liability insurance, the respondent is only being prudent and acting within the terms of the legislation.
There is no evidence in this case that the revised conditions are anything but prudent conditions.
I can see no reason to interfere with the respondent's decision under review except to vary the decision to substitute the revised draft deed (T44A).
Because the revised draft deed is less onerous than the draft deed forming part of the decision under review, I will certify that these proceedings have terminated in a manner favourable to the applicant.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe
Signed:         Sarah Oliver
  Associate
Date of Hearing  20 May 2002
Date of Decision  27 September 2002
The Applicant Appeared in Person
For the Respondent                 Mr Fellows