Connolly and Great Barrier Reef Marine Park Authority and Far North Queensland Airwork Pty Ltd (Party Joined)
[2007] AATA 1883
•19 October 2007
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR DECISION [2007] AATA 1883
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 MemberDate19 October 2007
PlaceSydney (heard in Townsville)
Decision The matter will be listed for further directions in the week beginning 12 November 2007. ..............................................
Garry Downes
President
CATCHWORDS
ENVIRONMENT – Great Barrier Reef Marine Park – Magnetic Island – permission to operate float plane to conduct scenic flights – impact of operation on people arising from noise – aircraft noise is excessive – existing conditions in relation to noise deficient – further evidence required regarding appropriate conditions – impact of operation on people arising from safety – risk of interaction with swimmers and small craft – not satisfied that operation is safe – existing safety assessment deficient – further evidence required – impact of operation on animals arising from noise and animal strike – not satisfied that there is a significant impact – impact of operation on cultural and heritage values – not satisfied that there is a significant impact.
Collector of Customs v The Western Australian Government Railways Commission (1995) 39 ALD 21
Re Earlam and Secretary, Department of Social Security (1991) 24 ALD 606
Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltdand Ors (2004) 82 ALD 627
Re International Fund for Animal Welfare (Australia) Pty Ltd and Ors v Minister for Environment and Heritage and Ors (2006) 42 AAR 262
Mohr and Greater Barrier Marine Park Authority (1998) 53 ALD 635
R v Toohey & Anor ex parte Meneling Station P/L & Ors (1982) 158 CLR 327
Solomon v Licensing Court of NSW (2000) 52 NSWLR 31
Civil Aviation Act 1988 (Cth)
Civil Aviation Regulations 1998 (Cth)
Environmental Protection (Noise) Policy 1997 (Qld)
Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth)
Great Barrier Reef Marine Park Act 1975 (Cth)
Great Barrier Reef Marine Park Regulations 1983 (Cth)
Great Barrier Reef Marine Park Zoning Plan 2003 (Cth)
International Regulations for the Prevention of Collisions at Sea 1972
Transport Operations (Marine Safety) Act 1994 (Qld)REASONS FOR DECISION
19 October 2007 Justice Downes, President
Mrs Josephine Kelly, Senior MemberThe issue: To decide whether a float plane should be given permission to conduct scenic flights from the bays of Magnetic Island
1. Magnetic Island is located in the Great Barrier Reef Marine Park (the Marine Park) eight kilometres north-east of North Queensland’s largest population centre, Townsville. The question in these proceedings is whether we should affirm a decision made by the Marine Park Authority to grant permission to Far North Queensland Airwork Pty Ltd to operate a float plane from the waters of three bays of the Island (Horseshoe, Nelly and Picnic Bays) and to conduct scenic flights around the Island and in other permitted areas.[1] Since permission was given in October 2006, the aircraft has operated principally from Horseshoe Bay which is located on the northern side of the Island. Horseshoe Bay provides shelter from the south-easterly winds that predominate during the winter months. Nelly and Picnic Bays are on the south-eastern and southern sides of the Island respectively. The applicants in these proceedings, Mr and Mrs Connolly, live close to the beach in the south-eastern corner of Horseshoe Bay and own three other properties in the bay. They oppose the aircraft’s operation, as do a number of other residents and landowners.
[1] The zoning map of the area in the Marine Park where the aircraft is permitted to operate may be found at: dispute: Too noisy? Too dangerous?
2. The issues that arose in these proceedings may be summarised as:
i.The impact of the aircraft’s operation on people arising from:
(a) noise; and
(b) safety.
ii.The impact of the aircraft’s operation on animal life, particularly marine animal life, arising from:
(a) noise; and
(b) accidental strike.
iii.Other impacts on the environment including on seagrass beds and from pollution.
iv.Enforcement of the permission.
v.The impact on the cultural and heritage values held in relation to the Marine Park by traditional owners and other people.
3. These impacts have to be considered in the context of the regulatory framework which is described below.
Preliminary determination
4. We do not consider that the aircraft’s operation has a significant impact on animal life, other aspects of the environment or the cultural and heritage values of the traditional owners and other people. However, we are concerned about the safety and noise impact of the operation on people. We wish to hear further evidence from the Civil Aviation Safety Authority (CASA) about its assessment of the safety of the operation and receive further submissions in relation to additional conditions to reduce the noise impact before we finally decide this matter.
The application to the Authority
5. In its original application for permission, Airwork included the mooring of a pontoon for the storage of the aircraft in Horseshoe Bay. That element of the application was withdrawn. The aircraft has been using two temporary anchor moorings in Horseshoe Bay.
6. The application was publicly advertised in the Townsville Bulletin, Courier Mail and the Government Gazette in April 2005. The closing day for submissions was 11 May 2005. Unfortunately Mr and Mrs Connolly were not aware of the application or the grant of permission until after the aircraft began operating in November 2006.
The decision under review
7. On 26 October 2006, Mr Martin Robinson, a delegate of the Authority, granted Marine Parks Permit No.G05/13201.1 to Airwork. It permits, for the period of 6 years:
CONDUCT OF A TOURIST PROGRAM – Activities being scenic flights and passenger transport, involving take off / landing in the [Marine Park and Queensland Marine Park]
CONDUCT OF AN AIRCRAFT CHARTER PROGRAM – Activities being the provision of transport and related services to persons other than tourists and involving take off / landing in the [Marine Park and Queensland Marine Park]
The permission includes all zones and locations between Latitudes 19°00” and 19°20” South but take-offs and landings are restricted to Horseshoe, Nelly and Picnic Bays. The permit is subject to various conditions, including entering a deed of agreement and developing an Environmental Management Plan (EMP). The permit and current EMP (dated 21 May 2007) are attached as annexures 1 and 2 to this decision.
8. On 15 May 2007 condition 15 of the permit was deleted by the Authority. It related to operating in and around Nelly Bay Harbour. Condition 17 was deleted and replaced at the beginning of February 2007 to correct an error. The new condition imposed a height limit of 500 feet for the aircraft’s landing and take-off when traversing west of Endeavour Creek, Horseshoe Bay, except when weather conditions make alternate routes unsafe. In general terms, the aircraft’s operations are to take place to the east of a line running north from Endeavour Creek. Except for a narrow corridor allowing beach access in the south-east corner of Horseshoe Bay, the aircraft is not permitted within 200 metres of the shore.
9. Following a number of requests for reconsideration, including one from Mr and Mrs Connolly, on 14 February 2007 another delegate of the Authority, Dr Adam Smith, affirmed the decision to grant the permission, subject to the review of various aspects of the EMP. Mr and Mrs Connolly seek review of that decision in this Tribunal.
10. Airwork was joined as a party to the proceedings. The aircraft is operated by Mr Mills who CASA has approved as Chief Pilot and Head of Aircraft Airworthiness and Maintenance Control. Mrs Mills represented Airwork at the hearing.
Description of Magnetic Island and Nelly, Picnic and Horseshoe Bays
11. Magnetic Island has a permanent resident population of about 3,000. It is a popular recreation destination for residents of the Townsville area and for tourists from other parts of Australia and from overseas. The tourist season is from about April to November and for about a six week period around Christmas.
12. Nelly Bay has significant residential and commercial development which has occurred following the construction of a new harbour and a new ferry and barge terminal. There is a marina, holiday apartments and backpacker resorts. The bay is used by recreational vessels and for water sports including jet-skiing, swimming and snorkelling. There is a permanent and a seasonal residential population.
13. At Picnic Bay there are permanent residences and holiday homes. Recreational activities include jet-skiing, snorkelling and swimming within a stinger net. There is also a jetty that is no longer operational.
14. Most of the evidence in this case concerned Horseshoe Bay. An extract from the document Site Management Arrangements for Horseshoe Bay (2005) provides a useful summary of the uses of that bay. The document was developed by Maritime Safety Queensland, the Queensland Parks and Wildlife Service (QPWS) and the Authority because of the need for management of mooring applications and because there were a number of unauthorised buoy moorings in the bay. It states:
Given Magnetic Island’s proximity to the mainland and the natural amenity of the Bay, it is highly used by both recreational users and tourism operations. Uses of the Bay include:
§a popular holiday location with adjacent tourist accommodation, holiday houses, backpackers and campgrounds;
§a high level of commercial use including jet ski hire, watersports, SCUBA diving, swimming, snorkelling, aqua-bikes, catamaran hire, small boat hire and horse riding along the beach and intertidal area;
§a popular anchorage in south easterly winds;
§the area is accessed for fishing, crabbing, wreck diving, snorkelling, boating, swimming, watersports and beach based activities;
§a small residential community exists at Horseshoe Bay;
§adjacent recreational facilities include public toilets, picnic tables, boat ramp, stinger enclosure, restaurants and shops;
§domestic animals are permitted on the beach;
§a number of research permits are held by James Cook University to conduct research in White Lady Bay, a small embayment in the north eastern corner of Horseshoe Bay.
15. Development at Horseshoe Bay is concentrated in the south-eastern corner. Commercial activities, including restaurants, cafes and a hotel, are mostly located in Pacific Drive, a short street that runs parallel to the beach. Residential development is located in the streets behind Pacific Drive and in other scattered locations. There are various types of visitor accommodation including holiday homes, bed and breakfast facilities, a backpackers’ hostel, and a camping ground.
16. On the seaward side of Pacific Drive is a boat ramp, a grassed picnic area, public toilets and a netted swimming enclosure during the stinger season. At peak times there may be up to 100 boats in the bay. Dogs are allowed on the beach. The Connollys’ home is about 200 metres east of the eastern limit of Pacific Drive.
The aircraft and its operation
17. A map of Horseshoe Bay can be found at Appendix 1 to the EMP. It shows Airwork’s approved area of operations.
18. The aircraft covered by the permission is a G-164 aircraft manufactured by Grumman American Aviation Corporation. It is an open-cockpit two-passenger biplane with a single engine mounted at the front. The two passengers sit side by side in front of the pilot. Visibility from the pilot’s seat must be restricted. The pilot can look down to the left and right and see forward from that position. However, because the pilot sits back in the plane looking over the nose and horizontal engine cowling, the view of what is immediately in front of the aircraft is very restricted. This is so even though the seat is elevated. This problem must be compounded when the aircraft carries passengers.
19. The aircraft lands on two floats. On the rear of each float is a retractable water rudder which is used to steer the aircraft when on water.
20. The aircraft is registered with CASA which has issued a Certificate of Airworthiness. Airwork holds an Air Operator’s Certificate (AOC) issued by CASA which allows it to conduct charter operations and aerial work operations, which include aerial photography and aerial spotting of “marine/fish” in Australia.
21. The EMP states that the aircraft will be operated within the daylight hours of 8 am to 6 pm only. Mrs Connolly gave evidence that on 26 and 27 December 2006 the aircraft undertook 11 flights on each day.
22. Magnetic Island lies within the Townsville Airport Control Zone. Townsville Airport is a military and civil airport. There were 47,274 movements at the airport during the financial year ending June 2005.
23. The aircraft operates subject to direction from Townsville Air Traffic Control, conducted by the Royal Australian Air Force. The aircraft requires clearance before taking off. While in the air, its flight path is controlled and monitored in terms of direction of flight, height and distance from land. Rather than lodging a flight plan for every flight with Air Traffic Control, Mr Mills has negotiated a Memorandum of Understanding which sets out a standard flight.
24. The EMP states:
Flights will be conducted at a height of no lower than 500 feet (excepting during take off and landing) and no closer to land than 1,000 metres or as directed by Aircraft Traffic Control. Flight paths are not to include built up areas or National Parks areas.
25. Mr Mills said that he generally flies around the island clockwise and not above 1,000 feet. On most occasions he needs onwards clearance from Air Traffic Control at certain locations during the flight. Some of these locations are closer to land than 1,000 metres; for example, Orchard Rocks. Mr Mills said that he was probably able to maintain the 1,000 metre distance from land while circumnavigating about 60 per cent of the island. This hardly seems like compliance with the EMP. The anticipated directions by Air Traffic Control cannot be intended to allow non-compliance with the standard set by the EMP nearly half of the time.
26. Airwork has a permit from the Townsville City Council to take bookings and sell tickets for scenic flights from the Horseshoe Bay Foreshore Reserve (in the vicinity of the public toilets) seven days a week from 7 am to 5 pm. The passengers are ferried in a dinghy from the beach to the aircraft which is moored in the south-eastern corner of Horseshoe Bay, usually about 200 metres away from the Connollys’ home. Other vessels are moored in that area.
27. When the passengers and pilot are aboard the aircraft, it taxis from its mooring to the area where it takes-off. It requires on average 400 metres of water for landing and taking off. Factors influencing the length of taxiing time include weather and water conditions, accommodating other users of the bay and, for take-off, waiting for permission from Air Traffic Control. The aircraft flies around the Island, lands in the same general area from which it took off and taxis back to its mooring where passengers disembark and are returned to the beach in the dinghy. The flight takes 15 to 20 minutes from take-off to landing. Passengers are told to allow 40 to 45 minutes for the whole experience and bookings are normally made at one hour intervals. The number of flights depends on the weather and the tourist season. The aircraft is refuelled where it is moored. It is taken to the beach to be washed down as required.
28. The EMP includes conditions that apply to the operation of the aircraft in each of the three bays. It specifies, by reference to maps, the locations for take-off and landing, and passenger loading and unloading. At Nelly Bay a “beach pick up area” is specified which is outside Nelly Bay Harbour.
29. While navigating on the water the aircraft is classed as a vessel and is subject to the International Regulations for the Prevention of Collisions at Sea 1972. These regulations give directions about passing, approaching, giving way and overtaking to avoid collisions with other vessels. They apply by operation of the Transport Operations (Marine Safety) Act 1994 (Qld) and the 2004 Regulations made pursuant to that Act.
The regulatory framework
30. The Great Barrier Reef Marine Park was proclaimed pursuant to s 31 of the Great Barrier Reef Marine Park Act 1975 (Cth) (the Act) and is presently described by the Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth). The Marine Park includes the water column, the subsoil beneath the seabed to a depth of 1,000 metres and the airspace above the surface to a height of 915 metres.
31. The Marine Park extends to low water around Magnetic Island. The area between low water and high water is another Marine Park declared under Queensland legislation which is administered by the QPWS. As permission to operate the aircraft was required from both bodies, a joint permit assessment was carried out by the Authority and QPWS.
32. More than half of the land mass of the Island is a national park declared pursuant to Queensland legislation. In general terms, the balance of the land is a suburb of Townsville and is subject to planning controls for which Townsville City Council has responsibility.
33. In summary, the object of the Act is to “make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region” (s 5). The Act provides for the preparation of zoning plans specifying the purposes for which a zone may be used or entered (s 32). The Authority is to perform its functions and exercise its powers in relation to a zone in accordance with that plan and not otherwise (s 36). The Great Barrier Reef Marine Park Zoning Plan 2003 (Cth) is the relevant plan. Each zone specifies purposes for which the Authority’s permission is or is not required.
Zoning
34. The permission allows the aircraft to operate in an area that includes the General Use Zone, Habitat Protection Zone, Conservation Park Zone, Scientific Research Zone and Marine National Park Zone. Horseshoe Bay and Nelly Bay are zoned Habitat Protection. Picnic Bay is zoned Conservation Park. Each of the relevant zones allows use and entry with the Authority’s permission for conducting a tourist program and conducting an aircraft charter program.
35. The objective of the General Use Zone is “to provide for the conservation of areas of the Marine Park, while providing opportunities for reasonable use”.
36. The objectives of the Habitat Protection Zone are:
(a) to provide for the conservation of areas of the Marine Parks through the protection and management of sensitive habitats, generally free from potentially damaging activities; and
(b) subject to the objective mentioned in paragraph (a), to provide opportunities for reasonable use.
37. The objectives of the Conservation Park Zone are:
(a) to provide for the conservation of areas of the Marine Parks; and
(b)subject to the objective mentioned in paragraph (a), to provide opportunities for reasonable use and enjoyment, including limited extractive use.
38. The objectives for the Scientific Research Zone are:
(a)to provide for the protection of the natural integrity and values of areas of the Marine Park, generally free from extractive activities; and
(b)subject to the objective mentioned in paragraph (a), to provide opportunities for scientific research to be undertaken in relatively undisturbed areas.
39. The objectives of the Marine National Park Zone are:
(a)to provide for the protection of the natural integrity and values of areas of the Marine Park, generally free from extractive activities; and
(b)subject to the objective mentioned in paragraph (a), to provide opportunities for certain activities, including the presentation of the values of the Marine Park, to be undertaken in relatively undisturbed areas.
40. In the zonings that apply to Horseshoe, Nelly and Picnic Bays, a recreational aircraft may land without the Authority’s permission, that is, “as of right”, to adopt the expression used by the Authority.
The Regulations
41. The Great Barrier Reef Marine Park Regulations 1983 (Cth) are extensive. In part they set out various definitions and matters which apply to the Zoning Plan. Regulation 45 provides for additional types of Special Management Areas (SMA), including a Special Conservation (Dugong Protection) SMA. Regulation 46 declares various SMAs including Cleveland Bay – Magnetic Island – Species Conservation (Dugong Protection) SMA Part 1 (Table 46 Part 5) and Cleveland Bay – Magnetic Island Species Conservation (Dugong Protection) SMA Part 2 (Table 46 Part 6). The first of these extends from the Queensland coast and includes the waters around Magnetic Island.
42. Provisions in the Regulations also address the granting of permissions. The Authority must not grant a permission unless it has made an assessment of the impact on the Marine Park and the Great Barrier Reef (reg. 117(1)). Regulation 77(1) confers power to grant or refuse permission, and reg. 77(2) provides that the permission may be:
subject to a condition or conditions specified in the permission, being:
(a)a condition allowing the giving of authorities and specifying the maximum number of persons to whom authorities may be given; and
(b)a condition indemnifying the Authority against any costs to the Authority that the permission holder’s activities incur; and
(c)a condition 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).
43. Regulation 74(5) requires the Authority and, on review, this Tribunal, to have regard to the following matters when considering whether to give a permission:
(a)the objective of the zone; and
(b)the need to protect the cultural and heritage values held in relation to the Marine Park by traditional owners and other people; and
(c)the likely effect of granting permission on future options for the Marine Park; and
(d)the conservation of the natural resources of the Marine Park; and
(e)the nature and scale of the proposed use in relation to the existing use and amenity, and the future or desirable use and amenity, of the relevant area and of nearby areas; and
(f)the likely effects of the proposed use on adjoining and adjacent areas and any possible effects of the proposed use on the environment and the adequacy of safeguards for the environment; and
(g)the means of transport for entry into, use within, or departure from, the zone or designated area and the adequacy of provisions for aircraft or vessel mooring, landing, taking off, parking, loading and unloading; and
(h)in relation to any structure, landing area, farming facility, vessel or work to which the proposed use relates:
i.the health and safety aspects involved, including the adequacy of construction; and
ii.the arrangements for removal, upon the 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; and
(k)any charge, collected amount or penalty amount that is overdue for payment by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and
(l)any late payment penalty that is payable by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and
(m)if the application relates to an undeveloped project, the cost of which will be large — the capacity of the applicant to satisfactorily develop the project.
44. Mr Fellows, Counsel for the Authority, pointed to the different language used in regs 74(5)(e) and 74(5)(f). While he conceded that the Connollys’ home and the land, air and waters generally of Magnetic Island and Cleveland Bay are encompassed by the phrase “nearby area” (reg.74(5)(e)), he argued that they did not constitute “adjoining and adjacent areas” (reg. 74(5)(f)).
45. In support of his argument, he traced the history of reg. 74(5)(e). He stated that the concept of “adjacent areas” had been used in an earlier equivalent provision, but had been replaced by the current concept of “nearby areas”. We do not agree that this is the case. The history of the regulation is that “nearby areas” has always been the wording of the equivalent of reg. 74(5)(e). Proceeding with Mr Fellows’ analysis, he referred to the consideration of “adjacent” and “adjoining” in Re Earlam and Secretary, Department of Social Security (1991) 24 ALD 606, the consideration of “adjacent to” in Collector of Customs v The Western Australian Government Railways Commission (1995) 39 ALD 21, and to the consideration of “adjoining” in Solomon v Licensing Court of NSW (2000) 52 NSWLR 31.
46. In summary, the authorities establish that the phrases have to be considered in the particular statutory context and may have a narrow or broader meaning. It is helpful to consider the ordinary meaning of the words.
47. The Macquarie Dictionary defines the relevant words as follows:
Nearby: close at hand; not far off; adjacent; neighbouring
Adjoining: bordering; contiguous
Adjacent: lying near; close, or contiguous; adjoining; neighbouring
48. The Australian Oxford Dictionary provides the following definitions:
Nearby: situated in a near position
Near: close at hand; close to, in place or time
Adjoining: adjoin:be next to and joined with
Adjacent: lying near or adjoining
49. We do not accept that reg. 74(5)(f) operates as narrowly as Mr Fellows argued it did. If the use of the conjunctive phrase “adjacent and adjoining” is to have any significance, the adjectives must have different connotations. Adjoining has the sense of bordering. The State Marine Park is adjoining. Areas above the high water mark but still close to the Marine Park will be adjacent. This seems to us to be the ordinary natural meaning of the phrase. However, we are also required to consider the subject matter, scope and purpose of the Act. We can see no basis upon which the residential areas close to the waters of Horseshoe Bay or the other bays would not be “adjacent” to the Marine Park when they were well within its sight and sound, simply because they were separated by a State Marine Park extending from low water to high water, a matter only of metres. In our opinion, “adjoining and adjacent areas” in reg. 74(5)(f) include the State Marine Park and those parts of the surrounding areas from which the bays can be seen and heard. The residential areas of Horseshoe Bay, including the Connollys’ residence, which is only metres from the water, are certainly included.
50. We proceed to consider the issues that arise.
i The impact of the aircraft’s operation on people
51. The evidence establishes that there has been an increase in development on Magnetic Island recently, particularly as a consequence of the construction of the new harbour and wharf facility at Nelly Bay. Some people embrace the increased development and others oppose it. An illustration of the concern in relation to the aircraft’s operation is the opinion of one objector that granting the permission “will change Magnetic Island’s state from a relaxed haven to an amusement park, a place akin to Surfers Paradise”. Mrs Connolly frequently referred to Hinchinbrook Island being analogous to Magnetic Island, and argued that regulations appropriate to it should apply to Magnetic Island. However, the two islands are not similar. The whole of Hinchinbrook Island is a national park. While half of Magnetic Island is a national park, the balance is a suburb of Townsville, and subject to various forms of development as previously described.
(a) Noise
52. The noise generated by the aircraft is of considerable concern to the Connollys and a number of other residents and landowners, mostly from Horseshoe Bay. This impact is a matter that is relevant to “the objective of the zone” (reg. 74(5)(a)); “the nature and scale of the proposed use in relation to the existing use and amenity, and the future or desirable use and amenity of the area of the operation and of nearby areas” (reg. 74(5)(e)); and “the likely effects of the proposed use on adjoining and adjacent areas” (reg. 74(5)(f)). The tenor of this evidence is that Magnetic Island is an undeveloped haven of tranquil natural beauty, including many birds and animals, and that the existing tourism is passive in nature, which is to be contrasted with the operation of the intrusively noisy aircraft.
53. Mrs Connolly described the noise generated by the aircraft as excruciating. Some witnesses gave evidence of being “stressed” and “traumatised” by the noise. The witnesses who complained of the aircraft noise contrasted that noise to the usual sounds of the sea, wind and birds, and the occasional noise of a jet-ski or a careless person in a speed boat. The complaints included that the aircraft noise interfered with conversations, afternoon naps, listening to the television and radio, and was disruptive on weekends.
54. Evidence in support of the operation came from some residents and people who conduct businesses in Horseshoe Bay. They said that the noise of the aircraft caused them no concern. Some expressed the opinion that the operation of the aircraft had improved their businesses. A petition of the Magnetic Island Business Owners and Operators signed by 420 people in support was sent to the Authority on 23 January 2007. There was also support from a real estate company and the manager of a project being developed on the Island.
55. The parties provided material about the noise impacts of aircraft in various locations, ranging from Santa Monica Airport to Ku-ring-gai Chase National Park near Sydney, and Green Island and Whitehaven Beach in the Marine Park. This material did not assist us in relation to assessing the noise generated by this aircraft in the particular conditions around Magnetic Island and, in particular, at Horseshoe Bay.
56. Noise level readings were taken by various residents of Horseshoe Bay, by Mr and Mrs Mills, the Queensland Environmental Protection Authority (EPA), and Mr Garry Hall, acoustic consultant. Mr Hall was retained by Mr and Mrs Connolly. His evidence was of most assistance because, while he had only been asked to record the ambient or background noise levels in various locations at Horseshoe Bay, he also recorded the noise generated by the aircraft at the same time in two locations. Noise levels and background levels taken at different times are of little assistance. In consequence we have some data which allows a comparison of the aircraft noise and the ambient noise level at particular times in two locations.
57. The other readings did not provide such comparative data. Further, the noise levels recorded by the Queensland EPA, QPWS and the Authority in October 2006 do not clearly identify where the noise meter was located when the readings were taken and the distance between it and the aircraft at various points during its operation. These measurements are unhelpful.
58. Mr Mills gave evidence that since readings were taken by the Queensland EPA, Airwork’s engineer had reduced the revolutions on take-off, which Mr Mills asserted resulted in a 10 decibel reduction of sound. The alterations had occurred before Mr Hall carried out noise monitoring in July 2007. Airwork also has a long-term strategy of replacing the current propeller with one of smaller diameter. Mr Mills said this will reduce tip speed and therefore noise levels.
59. Mr Hall monitored noise levels at various locations in Horseshoe Bay. He gave oral evidence as well as providing a written report. He made measurements in db(A), which indicates the sound pressure reading in decibels. The “A” weighting is the method of frequency weighting the electrical signal within a noise-measuring instrument to simulate the way the human ear responds to a range of acoustic frequencies. Mr Hall found that the background noise level (LA90) ranged from 32 to 36dB(A) at the Connollys’ home. Jet-skis were operating approximately 450 to 1200 metres from the residence and it was difficult to differentiate on the sound level meter between the background noise levels and the jet-ski noise levels which were below 40dB(A). The noise from dinghies with small outboard motors operating about 300 to 600 meters from the sound level meter was less than 40dB(A).
60. Mr Hall monitored several take-offs and landings made by the aircraft from the Connollys’ home. He described the aircraft’s mooring as being 300 meters from the location of the sound monitor. The noise of the aircraft taxiing to the take-off position measured between 40 to 45dB(A) and became inaudible once the aircraft was more than 1000 metres away. Take-off occurred approximately 1600 to 2000 metres away and the noise level measured between 50 and 70dB(A) for approximately 60 seconds. He estimated that landing occurred between 1600 and 1200 metres away and the measured noise level was between 50 and 66dB(A) for a period of approximately 50 seconds. The noise level of taxiing back to the mooring was 40 to 45dB(A).
61. At a second residence 120 metres from the shore, the background noise levels varied from 36dB(A) to 44dB(A) and were contributed to by waves, tree leaves rustling and birds. The noise from jet-ski activity 600 to 1800 metres away was estimated to be below 40 dB(A). Two aircraft take-offs and landings were measured. Mr Hall estimated the start of the first take-off to be 1400 metres away. The noise level measured between 50 and 55dB(A) for a period of 28 seconds. Landing noise level measured between 50 and 60dB(A) for a period of 80 seconds. Taxiing was below 45dB(A). The second take-off was estimated to be 1700 metres away and the noise level measured between 50 and 66dB(A) for a period of 80 seconds. The landing noise level measured between 50 and 62dB(A) for 70 seconds. Taxiing was below 45dB(A).
62. Mr Hall said that from the subjective perspective of human hearing, an increase of 10 decibels of sound is considered to be twice as loud, a 20 decibel increase is four times louder, a 25 decibel increase six times louder, 30 decibels eight times louder and 40 decibels 16 times louder. At the two residences where he conducted noise monitoring, Mr Hall concluded that the aircraft noise was approximately 25 decibels above the noise levels of jet-skis and outboard dinghies; that is, subjectively six times louder. On the evidence, the noise generated by the aircraft is considerably louder than that of any other use of Horseshoe Bay from the perspective of those residences. We accept the evidence, summarised above, of those witnesses who complained that that they find the aircraft noise loud and intrusive.
63. Mr Hall found no relevant criteria for noise levels of seaplanes operating in a Marine Park in Queensland. He made inquiries of the Queensland EPA and Airservices Australia. Airservices Australia, in a letter to the Queensland EPA regarding noise complaints from four residents of Magnetic Island, stated that the only relevant regulatory restrictions were minimum cruise altitudes of 500 feet above sea level over the ocean and 1,000 feet over land. As the aircraft was registered prior to December 1990, it is not subject to CASA noise regulations. It is clear that there are no binding noise levels.
64. Mrs Connolly argued that appropriate noise levels are found in the Environmental Protection (Noise) Policy 1997 (Qld). Schedule 1 specifies noise levels for airports at a “noise sensitive place”, which is defined in Schedule 4 to include a dwelling and a park or garden that is open to the public for use other than for sport or organised entertainment. The noise levels specified might be a guide. However we do not have relevant noise level measurements in this case to consider whether the aircraft complies or not.
65. Counsel for the Authority also referred to the Noise Policy. He relied on the acoustic quality objective set out in cl. 11 which is to achieve an ambient level of 55dB(A) or less for most of Queensland’s population living in residential areas over the long term. The provision states that it is not intended that the existing acoustic environment be allowed to significantly deteriorate. Given that the ambient noise levels measured by Mr Hall are lower than the 55dB(A) level, we do not consider that this objective assists our consideration. A long term average for the whole of Queensland is largely irrelevant to particular situations and, especially, special situations such as a bay on an island both in and near to a national park and the Marine Park.
66. The noise levels taken in October 2006 were compared in the assessment process to a noise level restriction imposed by a Queensland regulation on the use of jet-skis and powerboats on water for certain sporting activities. The regulation provides that noise not be permitted for longer than two continuous minutes at the same affected building from 7 pm to 7 am Monday to Saturday, and 6.30 pm to 8 am on Sundays and public holidays, and is not permitted anytime of day or night if it continuously exceeds 75dB(A) for two continuous minutes when measured from the shore.
67. The EMP seems to have tried to adopt this standard. It includes as a performance indicator: “Noise levels kept consistent with the assessed levels being not more than 75dB for more than two continuous minutes”. It does not specify the “A” weighting and does not specify where the measurement is to be taken. We consider the condition to be deficient.
(b) Safety
68. The evidence raises the possibility of conflict between the aircraft when taxiing, taking off and landing at Horseshoe Bay, and people snorkelling, diving, swimming, canoeing, kayaking, boating and using paddle boats, jet-skis, and the like. This is matter of the safety of the operation. It is relevant to consideration of: “the objective of the zone” (reg. 74(5)(a)); “the nature and scale of the proposed use in relation to the existing use and amenity, and the future or desirable use and amenity of the relevant area” (reg. 74(5)(e)); “the means of transport for entry into, use within, or departure from, the zone or designated area and the adequacy of provision for aircraft … mooring, landing, taking off, … loading and unloading” (reg. 74(5)(g)); and “in relation to any … landing area, .. to which the proposed use relates [the] safety aspects involved” (reg. 74(5)(h)(i)). Landing area is defined in s 3(1) of the Act as “an area for the landing of aircraft”.
69. Health and safety issues must be relevant to the adequacy of the relevant provisions. In any event, health and safety is so fundamental to all public activities, including tourist activities, that is must be a relevant consideration even if the regulations did not encompass the issue.
70. There was evidence of jet-skiers racing against the aircraft, and playing cat and mouse with it. There is no designated area set aside for the aircraft’s use alone. It lands and takes-off in an area frequented by boats, jet-skis and other water craft. It taxis through moored yachts and boats to get to and from its moorings. There was evidence that the aircraft aborted landings and take-offs on 26 and 27 January 2006 because of other users of the bay.
71. While most people swim in the stinger net enclosure during the stinger season, we accept that some people swim outside that area, particularly when it is not the stinger season. Further, because the aircraft principally operates from Horseshoe Bay and that bay is the most popular bay on the Island for recreational activities, the potential for mishap is greater there than at either Nelly Bay or Picnic Bay. The potential for mishap is lowest at Picnic Bay because the evidence establishes that the aircraft will operate from that bay infrequently.
72. The evidence included an undated file note of a report by the Nelly Bay Harbour on-site manager:
On one occasion (no date) a tinnie was coming out of the harbour, the plane missed, but it was close.
73. Each of the parties provided evidence of a general kind in relation to the issue of human safety. Mrs Connolly provided information about six recorded seaplane crashes in Australia since 1998, an incident concerning a Tiger Moth accident at Williamtown, NSW, and about operational conflicts on a lake between boats and float planes in a city in Alaska.
74. Mr McGinnity, an employee of the Authority, gave evidence about the operation of aircraft in the Marine Park which was not disputed and which we accept. Seaplanes operated in the area of the Great Barrier Reef before the Marine Park was established. The Authority’s records show that the first permit for a seaplane operation appears to have been issued in 1986. Currently there are 38 permits for fixed wing aircraft operations in the Marine Park, which encompasses 162 aircraft. Twenty-one permits currently provide for seaplanes landing and taking off in the Marine Park. Sixteen of those permits allow seaplanes to land and take-off into the Marine Park at Magnetic Island.
75. Most aircraft activity in the Marine Park occurs in the regions of Port Douglas, Cairns and the Whitsunday Islands. In the Townsville region, apart from the present aircraft’s operation, there is regular seaplane activity at Orpheus Island resort which is located to the north of Magnetic Island.
76. Since 2000 there have been approximately 30,000 visits to the Marine Park by aircraft conducting permitted tourist or charter programs. That figure does not include aircraft that were only transiting through the Marine Park or that were only conducting scenic flights.
77. Airwork pointed to the lengthy operation of seaplanes at Green Island near Cairns, and at Whitehaven Beach in the Whitsunday Islands.
78. This general evidence suggests that aircraft activity in the Marine Park has been conducted safely. However, we are concerned with a particular operation in a particular location.
79. As set out earlier, we accept that the present aircraft, like other vessels, must comply with the International Collision Regulations when on water. We also accept that take-offs and landings in Horseshoe Bay occur in areas already used by motorised craft and not normally frequented by swimmers. Nelly Bay has only been used for storage of the aircraft in Nelly Bay Harbour. That means that the aircraft taxis from its mooring in the Harbour where swimming is prohibited, to open water where it takes-off and lands. The designated beach pick up area at Nelly Bay has not been used. The aircraft had not operated from Picnic Bay before the time of the hearing, but Airwork had one future booking requiring its use.
80. Mrs Connolly pointed to the unpredictability of the operation causing a safety risk because there was no fixed flight path or runway. On the evidence, it is clear that it is up to the pilot to decide where to take-off and land, depending on the weather and number of yachts or other obstacles in the area. Mr Mills said that there is a consistent pattern of behaviour in terms of distance and duration of taxiing, which alerts other users to his intention to take-off. He also completes a circuit on approach, thereby alerting other users that the aircraft will be commencing descent and landing, as well as providing the aircraft with clear visibility of the bay. We are not just concerned about take-off and landing. We are particularly concerned about taxiing. The lowest point of the propeller is only one metre above the water. We have already said that visibility immediately in front of the aircraft could not be good. We are particularly concerned that a swimmer or one or more people in a dinghy, for example, could find themselves too close to the aircraft with disastrous results. Propeller accidents are not unknown.
81. We accept Mr Mills’ evidence that safe practices are crucial to Airwork’s ongoing operations and that it embraces the rules and codes that apply to its operation. We also accept that Mr Mills is an experienced pilot. There has been no accident or incident, apart from the matters referred to earlier, since the aircraft’s operation commenced. However, that does not mean that the aircraft’s mode of operation is inherently safe.
82. We have no real evidence before us relating to safety. We do not doubt Mr Mills’ qualifications and experience, nor that he complies with air navigation safety requirements. However, we are concerned about the whole operation undertaken by Airwork. Our concern will not be satisfied by evidence about precautions taken during take-off and landing, or even taxiing, per se. We are concerned about the safety of the operation on a hot Sunday afternoon when the aircraft is taxiing through moorings, with swimmers, people in dinghies and jet-skiers about. Those swimmers and users might not be at their most alert, and may have consumed alcohol. Frankly, we think that there is real danger in the aircraft operating in these conditions. No expert evidence is before us to allay our concerns.
83. In an email dated 6 August 2007, Mr Colin Webb, Flying Operations Inspector of CASA, Cairns wrote to Mr Mills:
In response to your query, direct from the CASA legal department, I can advise you that the copy of your AOC and other permissions you hold prove your right to operate, and, the fact that CASA has carried out site surveillance on your company without any problems reflects that the Authority does not have any safety issues with your outfit up to this time.
84. To our minds this is not nearly sufficient. Apart from being a very general statement, it does not suggest that anything like the level of investigation we would expect has in fact been undertaken. We cannot conclude from the reference to “site surveillance” that a study has been conducted of the way the operation is carried out in terms of, for example, taxiing and mooring. We would have thought that, where an aircraft was taking off and landing in areas from which the public is not excluded, special attention would be given to the safety of the operation. It seems very odd to us that strict controls are in place to prevent public access to airport runways, but that a float plane can take-off and land in a public place many times a day with little attention to the inherent safety of the operation.
85. When the Tribunal became aware that CASA was planning to carry out an audit of Airwork on 16 August 2007, the Authority was requested to inquire about the outcome of it. The Team Leader of Flying Operations, North Queensland advised the Authority on 14 September 2007 that two CASA inspectors had conducted the audit and that a recommendation would be made to the “the delegate” that Airwork meets its obligations under the Civil Aviation Act 1988 (Cth) and there were no issues found that would prevent the subsequent issue of their AOC. Again, this does not seem to us to be adequate.
86. The current AOC was granted on 6 November 2006 and will expire on 30 November 2007. The AOC does not specify where the aircraft may land or take-off. It does authorise float alighting gear. It does not reflect the kind of assessment that we consider is necessary.
87. Regulation 92(1) of the Civil Aviation Regulations 1998 (Cth) provides that a person may not land or take-off from a place unless it is an “aerodrome” under some Act or Regulation (paras (a), (b) or (c)) or “the place … is suitable for use as an aerodrome for the purposes of the landing and taking off of aircraft” (para (d)). Additionally, it requires that:
having regard to all the circumstances of the proposed landing or take-off (including the prevailing weather conditions), the aircraft can land at, or take-off from the place in safety.
88. Horseshoe, Nelly and Picnic Bays are not aerodromes. It may follow that reg. 92(1)(d) is the provision which authorises landing on and taking off from the bays in terms of the civil aviation regulatory regime. If it is, the regulation makes it clear that safety is important. Perhaps safety is not a matter of concern to CASA in the present case. However, if that is so we would wish to have evidence to that effect. We would then think it necessary to have some other expert aviation evidence on the safety issues. We make it clear that evidence relating to sea navigation does not seem to us to be particularly relevant. We are concerned, at least in part, with potential propeller or similar injuries, which is not a general sea navigation issue. While CASA is aware of the operations on Horseshoe Bay, it is not clear whether CASA is aware that the Authority’s permission would allow 11 flights per day for 365 days a year from Horseshoe Bay. It is not clear whether CASA is aware that the aircraft taxis through people boating and swimming, as well as moored boats. It is not clear that CASA is aware that the time when the aircraft is most used will coincide with the greatest recreational use of the water.
ii.The impact of the aircraft’s operation on animal life, and in particular on marine animal life arising from:
(a) Noise
89. Mrs Connolly and others expressed concern about the noise impact of the operation on various animals including dugongs, tiger sharks, manta rays, dolphins, whales, turtles, koalas, wallabies, echidnas, birds, butterflies and marine biota. This aspect of the noise impact of the operation is relevant to the consideration of: “the objective of the zone (reg. 74(5)(a)); “the conservation of the natural resources of the Marine Park” (reg. 74(5)(d)); and “any possible effects of the proposed use on the environment and the adequacy of safeguards for the environment” (reg. 74(5)(f)).
90. The evidence included information downloaded from the internet about marine noise pollution from ship traffic, military sonar and seismic air guns used in oil and gas exploration, and the effect of noise on animal and bird life. There was also a 1986 study of seaplane and vessel disturbance of nesting seabird colonies on Michaelmas Cay in the Great Barrier Reef. We have to assess the impact of this particular operation in the Marine Park within given geographical limits. The impact of noise from different noise sources and in different locations does not assist us.
91. Objections made by the Townsville Region Bird Observers Club and the Magnetic Island Nature Care Association provided information about some species of birds on Magnetic Island. For example, osprey and white-bellied sea-eagles have long term nesting sites in the Horseshoe Bay area, and migratory shorebirds and sea birds regularly use the northwest coast and bays of Magnetic Island. The objections did not, however, establish to what extent, if at all, the aircraft’s operation would adversely affect the birds, but rather expressed a concern that there might be an adverse impact.
92. Dr Culum Brown gave evidence about the impact of the noise generated by the aircraft on fish and marine mammals. He described himself as “a recognised world expert on fish behaviour and cognition”. We accept that he has such expertise. However, we find that his evidence went beyond his area of expertise and was mere speculation. For example he wrote that the sound of the aircraft in the air has been recorded at “90+dB” and that:
this is likely to equate to something in the order of 150dB underwater. Accurate measurement would need to be taken as there are uncertainties regarding the reverberation through the skis, however, it should be pointed out that sound travels four times as fast in water as it does in air, thus the noise will certainly be heard everywhere in the bay. Needless to say this is approaching the pain threshold for the human ear and is likely to be causing significant disturbance of the marine organisms. I suspect that there will be significant changes in the behaviour of the animals in the bay, not least of all the whales, dolphins and dugongs which frequent the area. The expectation is that such animals will vacate the area. While little is known about the effects of man-made sounds on fish (and reptiles eg turtles), published reports suggest that the effect is similar to that seen in marine mammals given the similarity in hearing physiology and increased sensitivity. Like other animals, fish move away from loud noises and are known to avoid vessels.
93. The noise level to which he referred is not consistent with noise readings taken of the aircraft. He speculated that given that the engines of seaplanes are as loud or louder than a very large speed-boat, they will have the same impact as such vessels, although he recognised “however, in terms of the underwater noise levels nothing is known”. He then stated that sound production is far louder underwater “so the sound of seaplanes is likely to be substantial”. This ignores the fact that the sound generated by the aircraft is not directly transmitted to the water as it is in the case of a power boat. Moreover, the sea provides a barrier to sound generated above it. The main means of sound being transmitted through the water from a seaplane must be from vibrations through its floats.
94. Dr Brown was not aware of any studies of the effects of seaplanes on wildlife. The aircraft’s engine is mounted at the front of the aircraft and is not in contact with the water. The extent to which sound from the engine is transmitted into the water through the floats is simply unknown. Further, his evidence did not take into account the existing noise generated by other vessels in the Horseshoe Bay, including jet-skis and motor vessels. Dr Brown’s evidence does not establish what, if any, effect the noise generated by the aircraft will have on the marine life in Horseshoe Bay or anywhere else.
95. Some local business operators stated that there had been no decrease in marine life since the aircraft had begun operating. The owner of a kayak hire business provided evidence that as part of his operation, he records the numbers of turtles and marine mammals sighted. He said that the number of turtles had increased during the period of the aircraft’s operation compared to the same period in the previous year, and that there was no difference in the number of dolphins sighted in the same periods .
96. The aircraft has to comply with Part 4A of the Regulations which specify distances to be maintained from cetaceans (whales and dolphins). The Environment Protection Biodiversity and Conservation Act 1999 (Cth) makes it an offence to kill or injure cetaceans.
(b) Animal strike
97. The other possible impacts of the aircraft’s operation on animals are animal strike on the water and in the air. This matter is relevant to “the objective of the zone” (reg. 74(5)(a); “the conservation of the natural resources of the Marine Park” (reg. 74(5)(d); “any possible effects of the proposed use on the environment and the adequacy of safeguards for the environment” (reg. 74(5)(f)).
98. Mrs Connolly, Dr Brown and others expressed concern that the aircraft would strike marine animals, particularly dugongs, turtles and manta rays, especially when taking off and landing. Dr Brown and Mrs Connolly said that the risk would be greater when the water is turbid. Mrs Connolly said that water around the island is shallow and has a high turbidity rendering visibility virtually nil. Dr Brown said that boat strikes are common-place in and around beaches in Brisbane but he is not aware of studies of strikes by seaplanes. Mrs Connolly was also concerned that birds might collide with the aircraft. Mrs Connolly considered the pilot has poor visibility because the pilot’s seat is behind those of the passengers.
99. Mrs Connolly provided a report of an incident in 2003 where Migaloo, a pure-white humpback whale, survived a collision with a trimaran near Magnetic Island. There is no evidence of boat strike in Horseshoe, Picnic or Nelly Bays. The Authority collects and receives data concerning environmental incidents including whale strikes and dugong strikes in the Marine Park. It has no record of such an incident involving a seaplane.
100. The floats are the only point where the aircraft is in contact with the water. Given the number and type of vessels that use Horseshoe Bay apart from the aircraft, and the lack of evidence of boat strike, we do not consider that the aircraft poses a significantly higher risk of striking an animal than vessels of the types that have been using the bay for many years. The risk of animal strike caused by the aircraft in Nelly or Picnic Bays is lower given the limited operation of the aircraft in those locations. The risk in the case of Nelly Bay Harbour, which is served by large ferries, would be even lower.
101. As far as bird strike is concerned, there is evidence about various birds that nest on and visit the Island. At highest there was a concern that there might be bird strike. There was no evidence that Airwork had encountered bird strike during its operation. We do not consider that the risk of adverse impact on birds is significant.
iii. Other impacts on the environment on seagrass beds and from pollution
102. Concern was also expressed about the impact of the aircraft’s operation on seagrass beds and as a result of pollution. These matters are relevant to the consideration of: “the objective of the zone” (reg. 74(5)(a)); “the conservation of the natural resources of the Marine Park” (reg. 74(5)(d)); and “any possible effects of the proposed use on the environment and the adequacy of safeguards for the environment” (reg. 74(5)(f)).
103. Seagrasses are the food source for dugong and green turtles. Seagrass beds are located in two areas in Horseshoe Bay. First, there is a narrow strip running parallel to the beach. It starts about one-third of the way from the western end and becomes wider towards the eastern end of the beach. Mrs Connolly said that she has seen one dugong in the water near her home, which is in the south-eastern corner of the bay. The second seagrass bed is oval-shaped and located about the middle of the bay.
104. Both the designated mooring area and the area where visiting boats moor in an ad hoc way are in close proximity to the seagrass bed that runs parallel to the beach. This is the same area where the aircraft moors and taxis to take-off and land. The aircraft crosses the oval-shaped seagrass bed when it lands and takes off.
105. Given the number of boats that moor in the same area as the aircraft, we do not consider that the impact of the aircraft’s moorings on the seagrass bed is significant. There is no evidence that the aircraft damages the seagrass during its operation over the oval-shaped bed.
106. There are also seagrass beds in Nelly and Picnic Bays. As the aircraft’s operation is limited in those bays, we do not consider the impact on seagrasses will be significant in those bays.
107. In our opinion, the likelihood of aircraft fuel spilling into the bays is adequately dealt with by the conditions of the EMP which require the transfer of fuel to be by 20 litre containers, requiring the supply of a fuel spill kit, and related measures.
iv. Enforcement
108. Mrs Connolly argued that the means of enforcement of the conditions regulating Airwork’s operation were inadequate and that it was left to residents to complain. In our opinion, enforcement is a requirement “for ensuring the orderly and proper management of the Marine Park” (reg. 74(5)(j)). Mrs Connolly referred to two alleged breaches. The first was an alleged breach of the permission when Mr Mills flew the aircraft over Liver Point contrary to the condition requiring him to fly 1,000 metres from land except when taking off and landing. The incident was observed by QPWS officers. It was apparently unclear whether the flight was pursuant to the permission with which we are concerned or another permission granted by the Authority which allows flights but no landings in the Marine Park. Mrs Connolly also complained that on one morning the aircraft landed at 5.21 am and moved from one mooring to another at 5.45 am.
109. Mr McGinnity gave evidence that the Commonwealth and Queensland government jointly fund a program of day-to-day management activities in the Marine Park that includes the employment of inspectors and the conduct of surveillance patrols. Inspectors are based on Magnetic Island and the waters around the Island are regularly visited and patrolled by Inspectors.
110. The evidence does not persuade us that enforcement is inadequate.
v. The impact on the cultural and heritage values held in relation to the Marine Park by traditional owners and other people
111. The final issue is the “need to protect the cultural and heritage values held in relation to the Marine Park by traditional owners and other people” (reg. 74(5)(b)). There is no dispute that the Wulgurukaba people are the recognised traditional owner group with a cultural affinity to Magnetic Island, as required by the Regulations. Ms Christina George, a Wulgurukaba elder of Magnetic Island and Townsville, provided a statement. She supported “the many objections that are being presented” and referred specifically to concerns about human safety, the effect of noise, and possible oil spills on marine species, particularly nesting turtles, in Horseshoe Bay. She did not identify any cultural or heritage values of traditional owners which would be affected by the operation.
112. The Central Queensland Land Council Aboriginal Corporation did not respond to the notification of the possible grant of a permit on 17 December 2004.
113. Other evidence was directed to the Aboriginal and World Heritage values of Magnetic Island. However, the Regulation directs attention to the cultural and heritage values held in relation to the Marine Park. There was evidence of shipwrecks around Magnetic Island but they are outside the area of the aircraft’s operation.
114. On all of the evidence before us, we find that the aircraft’s operation will not adversely affect the cultural or heritage values held in relation to the Marine Park by traditional owners or other people.
Conclusion
115. We have had regard to all the matters specified in reg. 74(5) (see Mohr and Greater Barrier Marine Park Authority (1998) 53 ALD 635 and R v Toohey & Anor ex parte Meneling Station P/L & Ors (1982) 158 CLR 327), but of particular significance in this case are regs 74(5)(a), (b) and (d)-(h).
116. We have been guided by the consideration of Spender and Madgwick JJ in Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltdand Others (2004) 82 ALD 627. Their Honours considered the proper interpretation of the phrases “reasonable use”, “cultural and heritage values”, and “amenity” in this statutory context, although the regulation numbering was then different.
117. We do not consider that the operation of the aircraft has a significant impact on animal life, other aspects of the environment, or the cultural and heritage values of the traditional owners. However, we are not satisfied that it does not have a significant safety and noise impact.
118. We are not presently satisfied that the operation is safe in terms of the use of the bays, and in particular the use of Horseshoe Bay. Rather than refusing permission at this time, we wish to hear evidence from CASA on that question or, if CASA is not prepared to assist the Tribunal, we need to hear other expert evidence. As an administrative decision-maker, there is no reason why we cannot adopt this course (see Re International Fund for Animal Welfare (Australia) Pty Ltd and Ors v Minister for Environment and Heritage and Ors (2006) 42 AAR 262). This is the most sensible and practical course for us to take.
119. We also consider that the potential noise impact on residents is excessive and wish to consider further submissions about conditions that might be imposed to provide a reasonable balance between the amenity of residents and the aircraft’s operation.
120. We will at least require that the new propeller referred to by Mr Mills in evidence be acquired and fitted. As set out earlier, in our opinion, the existing noise level prescribed in the EMP is meaningless because there is no point at which the measurement is to be taken and the “A” weighting has not been specified. We also wish to hear further submissions on an appropriate noise level.
121. In terms of possible conditions that might be imposed to provide a balance between the operation and the amenity of residents, we wish to have submissions as to whether the hours of operation and/or number of flights per day should be limited.
122. We are also concerned about the efficacy of a number of conditions of the permission. Condition 17 of the permission imposes a height limit of 500 feet for the aircraft’s landing and take-offs when traversing west of Endeavour Creek, Horseshoe Bay, except when weather conditions make alternate routes unsafe. Compliance with this condition seems to us to depend entirely on the judgment of Mr Mills. In relation to 1,000 metres distance from land specified in the EMP, we know that it is only complied with for about 60% of the trip around the Island. Such conditions in our opinion serve little purpose and raise questions about whether they should be imposed, and if not whether that is a basis for refusing the permission. The parties may wish to adduce further evidence and/make further submissions in relation to these matters.
123. We propose to allow the parties time to consider this preliminary determination, and in particular the matters about which we seek further evidence and submissions. We consider that two weeks is sufficient for that consideration. The Tribunal will contact the parties to arrange a directions hearing in the week beginning 12 November 2007.
I certify that the one hundred and twenty-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: ........................................................................
Julia Powles, AssociateDates of Hearing 31 July, 1 and 2 August 2007
Date of Decision 19 October 2007
Representative for the Applicants Self-representedCounsel for the Respondent M Fellows
Solicitor for the Respondent Legal Services Unit, Great Barrier Reef Marine Park Authority
Representative for the Joined Party C Mills
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