Connolly and Great Barrier Reef Marine Park Authority and Far North Queensland Airwork Pty Ltd (Party Joined)
[2007] AATA 2098
•18 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2098
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/696
GENERAL ADMINISTRATIVE DIVISION ) Re LOGAN CONNOLLY
And TANINA CONNOLLYApplicants
And
And
GREAT BARRIER REEF MARINE PARK AUTHORITY
First Respondent
FAR NORTH QUEENSLAND AIRWORK PTY LTD
Joined Party
DIRECTION - CORRIGENDUM
TRIBUNAL: Downes J
DATE: 19 March 2008
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for the decision in this application as follows:
1. Paragraph 13: replace ‘465’ with ‘393’.
............................................
Garry Downes
President
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2098
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/696
GENERAL ADMINISTRATIVE DIVISION ) Re LOGAN CONNOLLY
And TANINA CONNOLLYApplicants
And
And
GREAT BARRIER REEF MARINE PARK AUTHORITY
First Respondent
FAR NORTH QUEENSLAND AIRWORK PTY LTD
Joined Party
DECISION
Tribunal Justice Downes, President
Mrs Josephine Kelly, Senior MemberDate18 December 2007
PlaceTownsville
Decision The decision under review is set aside and, in substitution, permission is granted in accordance with the annexed Marine Park Permit. ..............................................
Garry Downes
President
CATCHWORDS
ENVIRONMENT – Great Barrier Reef Marine Park – Magnetic Island – permission to operate float plane to conduct scenic flights – further evidence in relation to conditions – conditions imposed on propeller size, hours of operation, flights per week and flights per day – validity of assigning conditions to environmental management plan – not valid if conditions are essential to permission itself – terms of environmental management plan incorporated in permission.
JURISDICTION – Horseshoe Bay – Horseshoe Bay is part of the State of Queensland – no jurisdiction in relation to the bay – applicants retain standing.
Adams v Bay of Islands County [1916] NZLR 65
Direct United States Cable Company v Anglo-American Telegraphic Company [1877] 2 AC 394
The Fagernes (1927) Probate 311
North Atlantic Coast Fisheries Arbitration (1910) Reports of International Arbitral Awards, Vol. XI, 167
Raptis v South Australia (1977) 138 CLR 346
R v Jimmy (1875) 4 SCR 180
R v Kahitasaka [1906] WAR 154
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Yarmirr v Northern Territory (1998) 156 ALR 370
Administrative Appeals Tribunal Act 1975 (Cth) s 27
Great Barrier Reef Marine Park Act 1975 (Cth) s 3
Great Barrier Reef Marine Park Regulations 1983 (Cth) reg. 74
Marine Parks Regulation 2006 (Qld)
Seas and Submerged Lands Act 1973 (Cth) s 14REASONS FOR DECISION
18 December 2007
Justice Downes, President
Mrs Josephine Kelly, Senior MemberIntroduction
1. Far North Queensland Airwork Pty Ltd operates a tourist program, or aircraft charter program, on Magnetic Island near Townsville. The program is the provision of scenic flights around the island in a float-plane. The Great Barrier Reef Marine Park Authority gave permission for the program.
2. Logan and Tanina Connolly live, for most of the year, in a home they own on Magnetic Island. They are opposed to the scenic flights program. Along with others, they sought reconsideration of the original permission. The original permission was confirmed, although the decision-maker stated that strategies, to reduce potential impacts, through a revision of an existing environmental management plan, should be explored.
3. Mr and Mrs Connolly sought review of the reconsideration decision in this Tribunal. In July and August this year, the Tribunal spent three days hearing the application. The Tribunal was constituted by Senior Member Kelly and myself. We gave an interim decision on 19 October 2007. In that decision, we made findings of fact and then considered the applicable statutory and regulatory tests and, particularly, the requirements of reg. 74 and subregulation (5) of the Great Barrier Reef Marine Park Regulations 1983 (Cth). We will not repeat here what we said in our interim decision, but its contents form part of these final reasons for decision.
4. In our interim decision, we raised three matters of particular concern to the Tribunal. They were:
1.The safety of the operation and, particularly, safety aspects associated with the taxiing, taking off and landing of the float-plane.
2.The noise of the float-plane.
3.Whether an existing condition, that the float-plane should fly no closer to land than 1,000 metres, was consistent with Air Traffic Control requirements.
5. Airwork is a joined party in these proceedings. At the time of the original hearing, Airwork was represented by its owners, Paul and Carol Mills. Mr and Mrs Mills are not legally qualified. After we delivered our interim decision, Airwork retained solicitors and counsel to advise them and to represent them in the further hearing. These legal representatives have raised issues relating to the jurisdiction of the Tribunal, which had not previously been raised.
6. The existing permission, which we are reviewing, requires the float-plane to take-off from one of three places, all of which are on Magnetic Island. They are Nelly Bay, Picnic Bay and Horseshoe Bay. In its Statement of Facts and Contentions the Authority asserted that each of these places was within the Great Barrier Reef Marine Park, up to low water mark. The area between high water and low water mark was, the Authority said, in a State marine park. The Authority repeated this claim in its opening before us in July. The matter proceeded before us, accordingly, on the basis that the position adopted by the Authority was correct and was not in contention. Our interim decision was prepared on this basis. The matter was fixed for further hearing to commence yesterday on the same basis.
7. Last week, the lawyers for Airwork gave notice that they wished to assert that no part of Horseshoe Bay was within the Commonwealth marine park, but that all of it was part of the State marine park. Because the float-plane mostly uses Horseshoe Bay to take-off and land, this matter has some significance. It is most unfortunate that the matter was raised so late in these proceedings. However, because the matter goes to the jurisdiction of the Tribunal, we must deal with it. On Friday, the Tribunal was informed that the Authority, after consultation with representatives of the Commonwealth in Canberra, accepted the claim.
8. The Tribunal has an obligation to exercise its powers correctly. Respondents have an obligation, now enshrined in the Tribunal’s statute, to assist the Tribunal to make its decision. The Authority must be aware of any issues concerning its boundaries. In these circumstances, the Authority should have raised the issue relating to Horseshoe Bay at the very beginning of the proceedings. The issue did not depend upon its being raised by one of the parties. It was a jurisdictional matter and should have been addressed automatically by the Authority, who should have put before the Tribunal the precise facts and issues relating to the question. The correct assessment of what are the boundaries of the park should, in any future case, be addressed by the Respondent before the Tribunal as a preliminary matter.
Jurisdictional Issue: Horseshoe Bay is not part of the Commonwealth marine park
9. We turn now to the issues that are raised by this new question. The boundaries of the Great Barrier Reef Marine Park are set out in a definition in s 3 of the Great Barrier Reef Marine Park Act 1975 (Cth) as follows:
“Great Barrier Reef Region” means:
(a)the area described in Schedule 1; and
(b)such area (if any) contiguous with the northern boundary of that area, as is prescribed;
other than any part of such an area that is referred to in section 14 of the Seas and Submerged Lands Act 1973 or is an island, or a part of an island, that forms part of Queensland and is not owned by the Commonwealth.
10. The area identified in Schedule 1 undoubtedly includes the whole of the area with which we are concerned in this matter, including Magnetic Island. Section 14 of the Seas and Submerged Lands Act 1973 (Cth) is as follows:
Nothing in this part affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and:
(a)Were, on 1st January 1901, within the limits of a State; and
(b)remain within the limits of the State;
or in respect of the airspace over, or in respect of the sea-bed or subsoil beneath, any such waters.
11. The jurisdictional question which arises is, accordingly, whether Magnetic Island, including Horseshoe Bay, is within the limits of the State of Queensland as at the time of Federation and, also, whether Horseshoe Bay is a “bay, gulf, estuary, river, creek, inlet, port or harbour” within the meaning of s 14. There is no doubt that Magnetic Island was part of Queensland at the time of Federation, and we need not refer to the instruments showing this. However, a question does arise as to whether Horseshoe Bay was part of Magnetic Island, within the common law, so that it also is within the State of Queensland.
12. The question whether adjacent waters are part of a state depends, at common law, on whether they are “fauces terrae” or “within jaws of the land” (see Raptis v South Australia (1977) 138 CLR 346, Direct United States Cable Company v Anglo-American Telegraphic Company [1877] 2 AC 394, Adams v Bay of Islands County [1916] NZLR 65, The Fagernes (1927) Probate 311, R v Jimmy (1875) 4 SCR 180, R v Kahitasaka [1906] WAR 154 and Yarmirr v Northern Territory (1998) 156 ALR 370). The conclusion seems to be that an assessment needs to be made on the facts of each case which addresses many factors. In Raptis, Stephen J quoted the award of the permanent Court of Arbitration at The Hague, in the North Atlantic Coast Fisheries Arbitration (1910) Reports of International Arbitral Awards, Vol. XI, 167 at 199, as “the modern common law approach to the question of what bays are internal waters”:
The interpretation must take into account all the individual circumstances which for any one of the different bays are to be appreciated. The relation of its width to the length of penetration inland, the possibility and the necessity of its being defended by the State in whose territory it is indented, the special value which it has for the industry of the inhabitants of its shores, the distance which it is secluded from the highways of nations on the open sea, and other circumstances not possible to enumerate in general.
13. Article 10 of the 1982 Convention of the Law of the Sea contains a provision relating to bays. The precise significance of international law on questions such as the question now before the Tribunal has not been determined (see Raptis at 362-4, 376-7, 384-9, and 394-6, per Gibbs, Stephen, Mason, and Murphy JJ, and Yarmirr at 465). However, Article 10 provides, inter alia:
For the purposes of this Convention a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.
14. Magnetic Island is not a large island. Horseshoe Bay is a relatively small depression in its north coast. There are two distinct headlands, although, because they do not have single points, it is not easy to identify the appropriate places to draw a line between to mark the boundary between the bay and the waters outside the bay.
15. The headlands are not narrower than the width of the bay, but they are not particularly far apart. The bay provides a protected anchorage and is the site of considerable leisure activities, as explained in our interim decision. These considerations, and the other matters we have identified relating to the bay and the activities within it in our interim decision, lead us to find that the area of the bay satisfies the common law test. We note that it also satisfies the international law test.
16. As a matter of ordinary English, we also find that the area satisfies the meaning of the word “bay”, a matter which is supported by the geographic name which has been given to the area for a long time. It follows that Horseshoe Bay is a bay in terms of the common law, international law and s 14 of the Seas and Submerged Lands Act. We accordingly consider that the Authority correctly conceded that the bay is part of the Queensland marine park and not part of the Commonwealth marine park.
17. We acknowledge, however, that we do not, in these reasons for decision, make any finding as to precisely where the boundary line across the entry to the bay is to be drawn. This is not something which it is necessary for us to do in the present case because the relevant activities which are engaged in by Airwork are wholly within the bay, wherever that boundary is to be drawn. The evidence before us is that the float-plane is in the air well before it reaches the area where the boundary would be and touches down after it has crossed the boundary.
18. Mr and Mrs Connolly, who are the applicants, are understandably surprised by this dramatic change in the way the matter is proceeding. Also, understandably, they look at the Zoning Plan and associated documents for the Commonwealth marine park and see no suggestion that there is some division to be drawn between the waters of Horseshoe Bay and the waters outside. They seek to put before the Tribunal an argument that when you look at these documents there is no basis for concluding that the park does not include the waters of the bay. We have a great deal of sympathy for someone without legal training who adopts this position. We can easily understand why someone would do so. The problem is that the ultimate definition of what is in the park is contained in the Great Barrier Reef Marine Park Act itself and what appears in regulations and zoning plans cannot negate that. As the statutory provisions clearly lead to the conclusion that Horseshoe Bay is not within the Commonwealth marine park, nothing in the other documents can contradict that.
19. We should also add that the reason this potential confusion arises is really due to a laudable cooperative approach which takes place between the persons administering the Commonwealth Marine Park Act and those administering the legislation relating to the State marine park. Just as persons like Mr and Mrs Connolly might be confused by the sort of argument that is raised here, we are sure they would also be troubled if every time some application was to be made to engage in activity in or near one or other of the parks, two entirely separate applications were necessary, which might lead to different terms of permission and conditions. So we would not want to suggest that there is anything inappropriate about the cooperative approach that is taken by the two park authorities. However, it does lead, for example, to the issue of detailed zoning maps which do, if you look at the cover of the zoning maps, show that they are issued by both authorities, but then in the text of the maps refer almost exclusively to the Great Barrier Reef marine park, which is the name of the Commonwealth park, and suggest that it intrudes into every area including inlets and bays and the like.
Effect of finding that Horseshoe Bay is not part of the Commonwealth marine park
20. It is one thing for the Tribunal to determine that the waters of Horseshoe Bay are not part of the Commonwealth park, but it is yet another to then move forward from this finding to a determination of what effect this has on the application before the Tribunal. The significance of the matter is that the float-plane is mostly located within Horseshoe Bay, and when it takes people on scenic flights it mostly flies them out of this bay and back to this bay, after flying around the island. It follows that a substantial part of the activities of the program take place within the waters of Horseshoe Bay.
21. The first matter that we think one needs to look at to determine what effect the finding has on the matter before the Tribunal is the terms of the permission which we are reviewing, that permission having been largely affirmed by the reconsideration. Consistently with the cooperative approach which is taken by the two marine park authorities, there is only one permission. It is signed by both authorities. The permission relates, in accordance with its terms, to the following activities:
Conduct of a tourist program - activities being scenic flights and passenger transport, involving takeoff/landing in the marine parks.
Conduct of an aircraft charter program - activities being the provision of transport and related services to persons other than tourists and involving takeoff/landing in the marine parks.
22. On the evidence before us, it is the tourist program which is the real substance of the business which Airwork carries on. Nothing in the permit seeks to distinguish between the State and Commonwealth park. It simply treats the whole of the waters around Magnetic Island, including Horseshoe Bay, as something covered by the consent. In ordinary circumstances no issues will arise from this. However, the jurisdiction of this Tribunal is necessarily limited to a review of the decisions of the Commonwealth authority and is strictly confined to Commonwealth regulated activities. Once there is an application for review in this Tribunal a requirement to distinguish the two jurisdictions will necessarily arise. In many cases it will not create a problem, but in every case the issue must be in the background.
23. So far as we are aware, there is nothing in the Commonwealth legislation which seeks to address this potential issue. There is little in the State legislation which addresses the issue, although the Marine Parks Regulation 2006 (Qld) does appear to authorise the State authority to amend a State permit, or that part of a joint permit which relates to the State’s jurisdiction, to take account of some amendment or change to a permit by the Commonwealth. This provision might have been inserted to deal with a circumstance in which, as a result of an appeal to the Administrative Appeals Tribunal, some change is made to a joint permit. There does not appear, however, to be any similar provision relating to the Commonwealth marine park. It seems that there is no merits review of the Queensland marine park authority’s decisions, although we expect that their decisions would be subject to ordinary judicial review in the courts of Queensland.
24. The result of this is that we do not have something in the permission that is before us for review which identifies that part which is strictly before us in this application. Much of the permit and its conditions address questions generally, without addressing how they relate to the separate jurisdictions.
25. A first question must arise as to whether the tourist program, being a unified activity, most of which takes place in the Commonwealth marine park, has the consequence that Commonwealth jurisdiction extends to the whole of the program including the taking off and landing of the aircraft.
26. We will say at the outset, however, that a sensible and logical approach to the issue before the Tribunal appears to be that if the waters of a bay are within the State marine park and not in the Commonwealth marine park and all of the waters outside the bay are in the Commonwealth marine park and not in the State marine park, it would seem to be sensible that the State should regulate the activity in the waters under its jurisdiction and the Commonwealth should regulate the activity in the waters under its jurisdiction. Where an activity takes place in both parks, the proposition would still stand. However, the ultimate answer to the question really requires the Tribunal to address the matters which it needs to take into consideration when dealing with an application for review and that requires it to address the legislation.
27. In our interim decision, we addressed the legislation generally and set out its terms. The most relevant matter for us to consider, however, are the provisions of reg. 74, and particularly subregulation 74(5), which sets out the matters which the Authority and, on application for review, this Tribunal must have regard to. We referred to these in our interim decision. Amongst the subparagraphs of the subregulation that we drew attention to in our earlier decision were subparagraphs (e), (f) and (g). Subparagraphs (e) and (f) do refer to nearby areas and adjoining and adjacent areas and give the Authority power to take into account things affecting those nearby or adjoining areas when they are relevant, even though they are outside the Commonwealth park.
28. We have examined subparagraphs (e), (f) and (g), as well as the other subparagraphs, to see whether they might lead to a conclusion that because part of the relevant activity takes place in the Commonwealth park, the Commonwealth permission can regulate activity of any part of the operation. However, it seems to us that the effect of, particularly subparagraphs (e) and (f), is that where an activity takes place within the Commonwealth marine park, regard can be had to its effect on nearby and adjoining, or adjacent areas, even though they are not within the marine park. So understood, these provisions do not assist the argument that the Authority can have regard to activities in Horseshoe Bay, because Horseshoe Bay, not being within the marine park, the question of what effect those activities have on adjacent, adjoining or nearby areas, does not arise. Subparagraphs (g) and (h) refer to things such as landing areas, and taking off and landing of aircraft, but, again, it seems to us that these items do not address the situation before us.
29. It follows that we think we now have to determine the matter before us on the basis that we are not directly regulating activities in Horseshoe Bay. However, that is not an end of the matter. As we said at the outset, one of the issues which concerns us is the issue relating to noise. There is no issue that Nelly Bay and Picnic Bay are within the Commonwealth marine park. Intrusive noise is just as much an issue for the Tribunal when it occurs in those bays, as it is when it occurs in Horseshoe Bay, even though the reality is that Horseshoe Bay is the area where the noise of taking off and landing mostly takes place.
30. The same is also true of safety issues, although, again, it needs to be said that the safety issues which troubled the Tribunal, as appears in the interim decision, were much more associated with the activities in Horseshoe Bay than with activities in the other places.
Mr and Mrs Connolly have standing to bring the application
31. There is another matter which the joined party recently raised as affecting what we should do in this matter. We have not referred to it earlier because it can only really be dealt with in the context of the matters that we have just covered. If this point is correct, then the appropriate course, so the joined party says, is for us to cease to deal with the application on the basis that it was not correctly commenced. What the joined party says is that in the changed circumstances, Mr and Mrs Connolly have no standing to bring their application before the Tribunal. We propose to say at the outset that the Tribunal considers that Mr and Mrs Connolly do have sufficient standing to bring the matter before the Tribunal and we do not propose to uphold the argument.
32. Section 27 of the Administrative Appeals Tribunal Act 1975 (Cth) sets out who may apply to the Tribunal. The persons who may apply include persons “…whose interests are affected by the decision”. Mr and Mrs Connolly have a residence in Horseshoe Bay, and they own other property within Horseshoe Bay. From their residence, one can plainly see the opening between the two headlands into Horseshoe Bay. When the float-plane is operating within Horseshoe Bay, it is plainly visible to them. However, the argument is that when it is within the bay, there is no Commonwealth jurisdiction. We find, however, that the float-plane is still visible to Mr and Mrs Connolly as it flies through the heads and into Commonwealth water. In the right wind conditions, its engine would still be audible to them. As residents of Magnetic Island, they will be in a position to observe and hear the plane as it is flying around the island and if it lands in any of the two other bays when they are in the vicinity, they will be able to see and hear it. We have no doubt that this is sufficient for them to have a relevant interest under s 27 to justify their bringing these proceedings.
Final determination: The permit is upheld with conditions
33. We finally come to the matters which now are before us and to the giving of our reasons relating to the final determination of the matter. In our interim reasons we set out the matters that we were required to address. We discussed the evidence that was before us and those matters are to be taken as part of our present reasons. When we take into account the further evidence that was given yesterday, some of which we will refer to in a moment, we conclude that the correct or preferable decision in this case is to uphold the granting of a permission to Airwork to carry out the tourist program and aircraft charter program, but only to do so on conditions. Many of the conditions are contained in the permit which is dated 26 October 2006, a deed of agreement that was executed on 18 May 2006 and the latest environmental management plan which is dated 2007. We should note, however, that there have been two amendments to the actual permission of 26 October 2006, namely the deletion of paragraph 15 and the substitution of the word “west” for “east” in paragraph 17(1) of the permit.
34. In our interim reasons, we considered a number of issues relating to the application and came to the conclusion that the matters that were of critical concern and that stood in the way of a successful application for a permit, were potentially the three matters that we identified at the outset of these reasons. We did not consider that issues related to, for example, the marine life in the bay and potential risks to that marine life, were sufficient to justify a refusal of a permit or some particular condition being imposed, other than the conditions which are part of the existing permit. The matters that stood in the way of the grant of a permit at the time we gave our interim decisions were the three matters that we have adverted to and to which we will now turn.
Noise
35. The first of the matters that we propose to deal with is noise. We will not repeat the evidence of Mr Hall which is referred to in our interim decision. We find, based on that evidence, that the noise of the aircraft, and this is as true of Nelly Bay and Picnic Bay as it is of Horseshoe Bay, reached a level at which it was intrusive. We heard the aircraft ourselves and we had the advantage of the measurements and the expert opinions of Mr Hall. In our earlier decision, we referred to a Queensland regulation relating to water craft, which limited the time of activity of water craft in areas of Queensland and imposed a maximum noise level of 75 dBA. The precise provision was a prohibition at any time of boating activities including jet skis which continuously exceeded 75 dBA for two continuous minutes when measured from the shore.
36. We consider that an appropriate limitation in the present case is the level of 75 dBA. On the evidence of Mr Hall, it may be that the aeroplane presently complies with that limit, but we note that we intend it to be an upper limit. We also intend that there should not be a qualification that noise can exceed the 75dBA limit if it does not continue for two continuous minutes. As the evidence of Mr Hall shows, the aircraft is generally only omitting substantial noise during a short period when it is taking off and landing. Although it has been said that the fact that it is only a short period has the effect that it is not particularly intrusive, we consider, on the contrary, that loud noises for short periods interrupting without particular warning are an especially intrusive kind of sound. Continuous noise is often less intrusive. It follows that we propose that there should be an absolute limit of 75 dBA for the aircraft when measured from high water mark at the closest point to the aircraft with no impediment between the aircraft and the noise measuring source. This limitation will operate in Nelly Bay, in Picnic Bay and may operate in Horseshoe Bay, if the State authorities adopt it.
37. We are trying to balance the commercial interests and rights of Airwork against the interests of residents opposed to the activity. Even with an upper limit of 75 dBA there will be noise that will emanate from the plane which is intrusive and therefore any other means of reducing the noise that are practically available, should be availed of.
38. We note that Mr Mills, the principle of Airwork and its pilot, gave evidence before us in August of a possibility that the propeller on the plane might be replaced by a smaller propeller which would create less noise. Mr Mills gave some further evidence about this in his most recent affidavit dated 6 December 2007. In that affidavit, he said that the existing propeller would have a life of about 1,000 hours and had operated for some 400 hours. He said that it would be necessary to replace the propeller in about 12 months. However, he went on to say that he would be seeking to replace the propeller sooner, so that it would be saleable when he ceased to use it, rather than to leave it until it had exhausted its life. We think, as we said in our interim decision, that the propeller should be replaced by the propeller which is smaller in circumference and would make less noise. We accordingly propose that there should be a condition of the consent which requires the replacement of the propeller with a new propeller in accordance with the evidence given by Mr Mills, in these proceedings, within a period of three months from today, but subject to the Authority being in a position to grant some extension of that time if an appropriate case is made out.
39. We are still not satisfied that these conditions together satisfactorily will ameliorate the noise issue and, accordingly, as we foreshadowed in our earlier reasons, we propose that there should be a further noise condition relating to the hours of operation of the aircraft and the number of flights per day. Mr Mills has agreed to conditions that:
1. The aircraft not operate before 9.00 am nor after 5.00 pm each day;
2.The aircraft’s activities be limited to six days out of every seven day period; and
3.The aircraft’s activities be limited to a maximum of eight flights on any one day.
We think that these are a reasonable conditions relating to the limitations on the operations of the aircraft and we propose to adopt them.
Safety
40. The second matter which concerned us when we gave our interim decision was the issue of safety. We explained what our concerns were in our interim decision. At the time, we did not have more than some very general evidence as to the attitude of the Civil Aviation Safety Authority. However, in the interim, and no doubt in response to remarks made in our interim decision, Mr Reginald George Perkins, Team Leader, Flying Operations, of the Civil Aviation Safety Authority for its northern region, filed a statement which has been admitted into evidence before us. Mr Perkins also gave oral evidence.
41. We have to say that we still, personally, have concerns about safety issues. However, Mr Perkins is the expert in the field and he has deposed in his statement that:
CASA considers the risks of [collision while the float-plane is taxiing amongst moored vehicles and people engaged in boating and other water activities to be] very low or negligible…
and he gives five reasons, as follows:
(i) there is only a small part of the taxy which would involve the aircraft coming into possible close contact with boats or persons;
(ii) because the pilot of the aircraft has excellent visibility, the pilot should be able to observe all boats and persons and avoid them;
(iii) the taxy speed of the aircraft will not be high;
(iv) because of the noise of the aircraft, persons should clearly be able to observe the aircraft and take steps to avoid it;
(v) it has received no reports to date of the aircraft coming in close contact with boats or persons, or hitting boats or persons.
42. The Tribunal also raised a question as to whether the frequency of the operation of the plane might, because of that frequency, enhance the potential concerns relating to safety. Mr Perkins deposed that the frequency of operations did not cause him to change his opinion.
43. Having before us this expert opinion, we do not propose to impose any additional conditions relating to taxiing or taking off. We would also add that the safety issues associated with the taxiing and taking off are particularly matters which concerned the Tribunal with respect to Horseshoe Bay because it is in that bay that the significant water activities take place. It does not seem that there are any particular activities of that kind in Picnic Bay, which is quite exposed, or in either the small harbour or the bay outside the harbour at Nelly Bay. Accordingly, it seems to us that safety issues relating to the operation of the aircraft are really a matter for the State authority rather than the Commonwealth authority.
1,000 metres from land
44. The final matter that we raised in our interim decision about which we had concerns, was an issue associated with a condition that already exists and which requires the aircraft to remain more than 1,000 metres from land “or as directed by aircraft traffic control”. One of the witnesses who gave evidence before us yesterday was Wing Commander Robert William Morris. His evidence was that there were no air traffic control requirements which would have the consequence that the aircraft would need to fly closer than 1,000 metres to land, except in an emergency or similar circumstances.
45. To avoid ambiguity relating to this particular provision, which we think should continue to be inserted, and with respect to which there are no jurisdictional issues, we think that the terms of the consent should be amended so that its wording is something like, “The aircraft will be navigated no closer to land than 1,000 metres unless, notwithstanding the fact that it is aware of this condition, but for emergency or other extraordinary reasons, air traffic control requires the aircraft to fly within the 1,000 metre zone”.
Conclusion
46. When we take into account all of the provisions of the legislation, and particularly the provisions of reg. 74(5), we are satisfied that the appropriate decision is, once the conditions we have referred to above are imposed, to permit the permission already granted to Airwork to stand. It seems to us that, taking into account the matters that are required by the Act and particularly the matters that have caused us some concern, the appropriate balance in the circumstances is the issuing of a permission with the conditions we have referred to.
Validity of inserting conditions in an environmental management plan
47. There is one final problem and that is that the existing permission is subject to a requirement to enter into a deed of agreement and subject to an environmental management plan. We do not think any problem arises so far as the deed of agreement is concerned, but it does seem to us that there is a potential issue so far as the environmental management plan is concerned. The statute commits to the Authority, and on an application for review, to this Tribunal, the duty of exercising the relevant powers under the legislation to either grant or refuse a permission, and, if to grant one, to consider if any conditions should be imposed. There is no provision which permits the Authority to delegate that decision-making power to anyone else.
48. It seems to us that the essential elements of a permission, and the conditions of that permission, should be dealt with in the consent itself, and not assigned to an environmental management plan. In coming to this conclusion, we take into account the decision of the New South Wales Court of Appeal in a matter relating to New South Wales planning law, but which is of assistance, Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88.
49. This does not mean that there are not appropriate circumstances in which a permission should not provide for an environmental management plan, but such a plan, to our minds, cannot deal with anything that is essential to the consent itself. So, for example, it would not be competent to permit issues such as noise levels to be determined by some process taking place voluntarily between the Authority and the applicant. We note that the decision in Weal related directly to the issue of noise being left for determination by someone other than the Council.
50. It follows that we propose that the decision of the Tribunal, in substance, should reflect the terms of the current permission, with the deed of agreement operating, but with all of the terms of the environmental management plan operating as conditions of the permission. It may be that in other circumstances it will be appropriate for the Authority to leave some matters for determination by an environmental management plan. However, we are in the position of knowing precisely what the environmental management plan in the present case provides for, and unless there is some detriment flowing from it, it seems to us that the sensible course is for what is in that plan to be conditions of the permit itself.
51. So far as any detrimental consequence is concerned, we note that the regulations permit the variation of a condition in almost all circumstances in which all the parties agree to it. The consent of the parties would be necessary to any amendment to an environmental management plan. So it seems to us that there is no detriment by approaching the matter on this basis.
52. We also intend that whereas some of the provisions of the environmental management plan are what one might call aspirational, rather than obligatory, we intend that the matters that become conditions should be obligatory. It seems to us that it is inappropriate to leave it open to debate in the future as to whether something which is contained in a document such as the environmental management plan can effectively be ignored.
Decision
53. The decision under review is set aside and, in substitution, permission is granted in accordance with the annexed Marine Park Permit.
I certify that the fifty-three preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President and Mrs Josephine Kelly, Senior Member.
Signed: ........................................................................
Gregory Cooper, AssociateDates of Hearing 31 July, 1 and 2 August, 17 and 18 December 2007
Date of Decision 18 December 2007
Date of Corrigendum 19 March 2008
Representative for the Applicants Self-representedCounsel for the Respondent M Fellows
Solicitor for the Respondent Legal Services Unit, Great Barrier Reef Marine Park Authority
Counsel for the Joined Party D Honchin
Solicitor for the Joined Party Mark Stevenson and Associates
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