Fantasea Cruises Pty Limited and Great Barrier Reef Marine Park Authority

[2000] AATA 824

CATCHWORDS – GREAT BARRIER REEF MARINE PARK – permission to install and conduct private mooring at Whitehaven Beach refused – whether it should be granted – consideration of objectives of Zoning Plan and factors in Regulation 18(4) – meaning of amenity – meaning of environment – effect of Government policy – decision affirmed.

Environment Protection (Impact of Proposals) Act 1974 – s 3
Great Barrier Reef Marine Park Act 1975 – Part VB, ss 6, 7, 30, 31, 32, 33, 36, 37, 38A, 38B, 39W, 39Y, 39Z, 39ZB, 39ZD, 39ZE, 39ZF, 39ZG, 39ZH, 39ZI, 66,
Great Barrier Reef Marine Park Regulations – rr 4, 5, 6, 10-13, 18-22, 42-45
Judiciary Act 1903 – s 39B
National Environment Protection Council Act 1994 – s 3.5.1

Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Fantasea Cruises Pty Ltd and Great Barrier Reef Marine Park Authority (unreported, [1999] AATA 314, 14 May, 1999)
Great Barrier Reef Marine Park Authority v Forgie (unreported, 26 October, 1999, [1999] FCA 1473)
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; (1994) 19 AAR 266; (1994) 33 ALD 13
Mohr and Great Barrier Reef Marine Park Authority (1998) 53 ALD 635
Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 55 LGERA 197; (1984) 15 APA 30

DECISION AND REASONS FOR DECISION [2000] AATA 824

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1998/663
GENERAL ADMINISTRATIVE DIVISION      )

Re                  FANTASEA CRUISES PTY LIMITED

Applicant

And                GREAT BARRIER REEF MARINE PARK AUTHORITY

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)
  Dr E K Christie (Member)

Date  15 September, 2000

Place  Brisbane

DecisionThe Tribunal affirms the decision of the respondent dated 19 June, 1998.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 14 July, 1998, the applicant, Fantasea Cruises Pty Ltd ("Fantasea") applied for review of a decision of the respondent, the Great Barrier Reef Marine Park Authority ("the Authority") dated 19 June, 1998.  In making that decision, the Authority had affirmed an earlier decision, which was dated 23 April, 1998.  That earlier decision had been to refuse Fantasea permission to install a private mooring at Whitehaven Beach, which is located on Whitsunday Island and which is part of the Great Barrier Reef Marine Park ("Marine Park"). 

1. Before the substantive hearing, an issue was raised and argued as a preliminary issue.  That issue was whether the Whitsundays Plan of Management ("the Whitsundays Plan") prepared in accordance with Part VB of the Great Barrier Reef Marine Park Act 1975 ("the Act"), is a legislative or administrative instrument.  If the former, it was part of the substantive law and, if the latter, it was an expression of policy to be applied according to the principles established in cases such as Drake v Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634 (Brennan, J.). On 14 May, 1999, the Tribunal decided that the Whitsundays Plan is of an administrative, and not of legislative, character: Fantasea Cruises Pty Ltd and Great Barrier Reef Marine Park Authority, (unreported, [1999] AATA 314, 14 May, 1999). The Authority then made an application to the Federal Court for an order of review to seek a declaration under s. 39B of the Judiciary Act 1903 that, on the proper construction of the Act, the Whitsundays Plan was of a legislative character. On 26 October, 1999, Drummond J refused to make the order sought. His Honour did so on the basis that the issue might be irrelevant to the determination of the final issues between the parties: Great Barrier Reef Marine Park Authority v Forgie (unreported, 26 October, 1999, [1999] FCA 1473).

1. The hearing of the substantive application then proceeded. At the resumed hearing, the substantive merits of the case were considered. Mr Hack of counsel represented Fantasea and Mr Fellows of counsel represented the Authority. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with various other documents to which we will refer in the course of these reasons.  Also admitted were photographs of Whitehaven Beach and of various vessels.  Oral evidence was given by Mr David Hutchen, Mr Gary James Kilby and Mr Anthony John Vernon in support of Fantasea's case and by Mr Martin John Robinson, Mr Peter Charles McGinnity, Mr McNally, Mr Paul Harrison and Mr Christopher Clark Thomas in support of the case presented by the Authority.  A site inspection of Whitehaven Beach was also taken when the parties and their representatives travelled on a scheduled cruise operated by Fantasea and then on a vessel arranged by the Authority.

THE ISSUES

1. The central issue in this case was whether Fantasea should be given permission to install and conduct a private mooring at Whitehaven Beach, Whitsunday Island, in the Central Section of the Marine Park.

THE WITNESSES

1. Mr David Hutchen is the Managing Director of Fantasea.  He has been involved in commercial boating operations in the Whitsunday Islands since 1982.  He was then operating day trips from the mainland and Hamilton Island to Whitehaven Beach.  At the time, there were no other tour operators with services to Whitehaven Beach.

1. Mr Gary James Kilby is currently the Manager of Reef World which is a large pontoon fixed on the reef some 44 miles from the mainland.  Previously, he was a skipper on Fantasea's cruise vessels.  For approximately 12 months, he skippered a vessel from Hamilton Island to Whitehaven Beach each day.  Mr Kilby presently holds a Master Class 4 qualification and previously held a Master Class 5.

1. For the past 17 years, Mr Peter Charles McGinnity has worked with the Authority.  He has been the Director of the Day-to-Day Management Coordination Unit at the Authority for the last two years.  During his years with the Authority, he has undertaken various research, environmental impact assessment, planning and park management.  He holds a B.Sc.(Hons), Australian Environmental Studies from Griffith University.  He majored in environmental planning and natural resource economics.

1. Mr Paul Harrison is the Ranger-in-Charge of Ship Operations, Whitsundays District, with the Queensland Parks and Wildlife Service ("QPWS").  In that position, he has responsibility for the operation and maintenance of all Whitsunday District vessels including the maintenance of their safety standards and equipment.  Mr Harrison is responsible for the enforcement of legislation in the Whitsundays area of management and for the maintenance of public relations in that area.  Since 1984, he has held a Master Class 4 ticket qualifying him to operate vessels up to 80 metres in length in Australian waters.  Mr Harrison visits Whitehaven Beach at least once each week.  He has also been involved in the construction of various facilities at that beach.  Their construction has required him to camp on Whitsunday Island for several weeks at a time.

1. Mr Anthony John Vernon is the director of Tilera Pty Ltd, which was asked to prepare a report dated 20 August, 1999 and entitled "A preliminary survey of the Fantasea Cruises proposed mooring site and existing Whitehaven beach anchorage" (Exhibit F). 

1. Mr Christopher Clark Thomas is the Assistant Director of the Tourism and Recreation Group at the Authority and has held that position since 1999.  Previously, he has been employed as a GIS Officer, Permits Officer, Planning Officer and Senior Planning Officer in the Authority.  Mr Thomas obtained a Bachelor of Science (tech)(Honours) Degree in Marine Geography in 1993.

1. Mr Martin John Robinson is the Acting Manager, Environmental Management Systems, in the Environmental Impact Management Section of the Authority.  Previously, he had been a Project Manager for approximately 7 years.  In that position, he had undertaken environmental impact assessments.  As Acting Manager, he is responsible for exercising formal delegations (including making decisions in respect of permit applications), overseeing the preparation of permit application assessment reports and the overall operation of the permits sub-section.

1. Mr McNally is the owner of the commercial operator, Lindeman Pacific which operates a daily cruise to Whitehaven Beach.  Having regard to weather conditions, the cruise takes place on some 280 days each year.  Its vessel carries up to 48 passengers and arrives at the beach at approximately 11.00 am and leaves at approximately 2.00 pm.  Mr McNally has operated Lindeman Pacific for approximately 10 years.

BACKGROUND

1. In the following paragraphs, we will set out the facts which we have found and upon which there was no disagreement between the parties.  We will also set out the legislative context in which the decisions were made. 

Whitehaven Beach

1. Whitehaven Beach is located on Whitsunday Island which is part of the Whitsunday group of islands.  It is approximately 6 kilometres long and stretches from Hill Inlet in the north to Solway Passage in the South.  The beach fringes a gently sloping sand bay and is adjacent to the Whitsunday Islands National Park.  The slope of the beach from the Mean Low Water Mark ("MLWM") to the vegetation line is approximately 1 metre in 5 but the slope from the MLWM to the sea is only in the order of 1 metre in 25.  Sand on the beach comprises fine white silica sand that is unique to the Whitsundays area.  That sand continues for approximately 30 metres from the MLWM.  At that point, the substrate changes to sandy mud.  Approximately 50 metres from the MLWM, the substrate changes to fine silt.

The Marine Park

1. The Whitsunday Islands are themselves part of the Marine Park which was established pursuant to s. 30 of the Act and which consists of those areas declared under s. 31 to be part of it.  Those areas have been named the Cairns Section, Central Section, Far Northern Section and the Mackay/Capricorn Section.  Whitehaven Beach is located within the Central Section.  It is also located within the Great Barrier Reef World Heritage Property and, together with the rest of the Great Barrier Reef region is listed on the Register of the National Estate.

1. The Authority was also established by the Act (s. 6).  It is responsible for the management of the Marine Park (s. 7(1B)) and has been given a number of specific functions relating to the Marine Park. Those functions are conferred either by the Act or by the Great Barrier Reef Marine Park Regulations ("Regulations") made under s. 66 of the Act. Among those functions are those:

"(c)     to prepare zoning plans for the Marine Park in accordance with Part V;

(caa)to make plans of management for the Marine Park in accordance with Part VB;

(d)such functions relating to the Marine Park as are:

(i)conferred on the Authority by this Act; or

(ii)provided for by the regulations; (s. 7(1)).

The Authority must "… perform its functions in accordance with any general directions given by the Minister not inconsistent with the Act." (s. 7(2)).

Zoning plans in respect of an area of the Marine Park

1. As soon as possible after an area has been declared to be part of the Marine Park, the Authority is required to prepare a zoning plan in respect of that area (s. 32(1)). The matters which the Authority must take into account and the procedures which it must follow in preparing a zoning plan were set out in the earlier decision in this matter (paragraphs 13-18). The zoning plan provides that, for the purposes of the Act, the area constitutes either a single zone or is divided into two or more zones described in the plan (s. 32(4)).  Under the Central Section Zoning Plan ("CS Zoning Plan") prepared by the Authority, the Central Section has been divided into six zones: General Use 'A' Zone, General Use 'B" Zone, Marine National Park 'A' Zone, Marine National Park 'B' Zone, Scientific Research Zone and Preservation Zone (CS Zoning Plan, Part 1, paragraph 2 and Schedule).  Whitehaven Beach comes within the Marine National Park 'A' Zone (Schedule, paragraph 3, item 18).

1. In respect of each zone, a zoning plan must provide for the purposes for which that zone is to be, or may be, used or entered (s. 32(6)).  At any time, the Authority may amend or revoke a zoning plan (ss. 37(1) and (2)).  Should it decide to revoke the zoning plan, it must prepare a new plan and the revocation does not take effect until that new plan comes into operation (s. 37(2)). Whether it amends or revokes and replaces a zoning plan, the Authority must follow the procedures set out in the Act (s. 37(10)). A zoning plan comes into operation on a day specified in the Commonwealth Government Gazette (s. 33(5)).

1. While a zoning plan is in force in relation to a zone, s. 36 provides that:

"(1)     … the Authority shall perform its functions and exercise its powers in relation to the zone in accordance with that plan and not otherwise.

(2)While a zoning plan is in force in relation to a zone, each Minister shall give all such directions and do all such things as can be given or done by him for ensuring that the Department administered by him or her and each authority of the Commonwealth in relation to which he or she has ministerial responsibilities performs the functions and exercises the powers that it has in relation to the zone in accordance with that plan."

Entry into and use of a zone in an area of the Marine Park

1. A person may not intentionally or negligently use or enter a zone for a purpose other than a purpose that is permitted under the zoning plan relating to that zone (s. 38A). Contravention may lead to the imposition of a fine. A zoning plan may provide that a zone may not be used for a particular purpose except with the permission of the responsible agency within the meaning of that plan or of the Authority. If a permission is required, s. 38B(1) provides that, subject to a qualification that is not relevant in the context of this case (s. 38B(2) and r. 6(2)):

"… a person must not intentionally or negligently use or enter the zone for that purpose unless:

(c)the use or entry is authorised by a permission granted or transferred to the person under the regulations, being a permission of a kind declared by the regulations to be a permission to which this section applies; or

(d)the use or entry is authorised by an authority given to the person in accordance with a condition to which such a permission is subject."

Again, contravention may lead to the imposition of a fine.

Plans of management in respect of an area, species or ecological community in the Marine Park

1. Pursuant to s. 39W(1) of the Act, the Authority may prepare plans of management for one or more areas of the Marine Park, one or more species within the Marine Park or within an area in it and one or more ecological communities within the Marine Park or within an area in it. The objects of a plan of management are:

"(a)     to ensure, for particular areas of the Marine Park in which the Authority considers that nature conservation values, cultural and heritage values, or scientific values, are, or may be, threatened, that appropriate proposals are developed to reduce or eliminate the threats;

(b)to ensure that species and ecological communities that are, or may become, vulnerable or endangered are managed to enable their recovery and continued protection and conservation;

(c)to ensure that activities within areas of the Marine Park are managed on the basis of ecologically sustainable use;

(d)to provide a basis for managing the uses of a particular area of the Marine Park that may conflict with other uses of the area or with the values of the area;

(e)to provide for the management of areas of the Marine Park in conjunction with community groups in circumstances where those groups have a special interest in the areas concerned;

(f)to enable people using the Marine Park to participate in a range of recreational activities." (s. 39Y)

1. Before preparing a plan of management, the Authority must have regard to the protection of world heritage values of the Marine Park and to the precautionary principle. The precautionary principle is reproduced in s. 3.5.1 of the Intergovernmental Agreement on the Environment (Schedule to the National Environment Protection Council Act 1994)(s. 39Z).  That principle states:

"Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:

(i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

(ii)an assessment of the risk-weighted consequences of various options."

1. If a plan of management contains provisions prohibiting or regulating the doing of something, or requiring the doing of something, those provisions are known as "enforcement provisions".  They are included in a separate part of the plan. (s. 39ZD(5)).  Among those matters that the enforcement provisions may prohibit or regulate are:

"(a)     entry into an area, or a part of an area, to which the plan relates; or

(b)the use (generally), or a particular use, of an area, or a part of an area, to which the plan relates." (s. 39ZD(8))

Sections 39ZD(6) and (7) make further provision as to the matters which the enforcement provisions may prohibit:

"(6)     The enforcement provisions may prohibit the doing of an act even though the doing of the act would, apart from the enforcement provisions, be permitted or authorised by or under this Act.

(7)The enforcement provisions may exclude from their operation acts or omissions of a kind that were lawfully engaged in before the enforcement provisions come into force."

1. In preparing a plan of management, the Authority must follow the public notification procedures set out in the Act, invite submissions from the public and have regard to those submissions in preparing a plan of management (s. 39ZB).  Any plan of management prepared by the Authority:

"… must not be inconsistent with any provision of this Act or any provision of a zoning plan in force for the area, species or ecological community to which the plan of management relates." (s. 39ZD(2))

Sections 39ZD(3) and (4) expand upon the circumstances in which a plan of management will be inconsistent with a zoning plan.  They provide:

"(3)     Without limiting the generality of subsection (2), a reference in that subsection to a plan of management being inconsistent with a provision of a zoning plan includes a reference to a plan of management permitting the doing of anything that is prohibited by the provision.

(4)A plan of management is taken not to be inconsistent with a zoning plan merely because it prohibits the doing of something that is not prohibited by the zoning plan."

1. Once a plan of management has been prepared, it is again made available for public scrutiny and submissions are invited from the public. The Authority must take into account any submissions received by the date it has specified in accordance with s. 39ZE(1)(c)). It must then alter the plan of management if it thinks it appropriate to do so or confirm it if it does not (s. 39ZE(3)).  Whichever course it chooses, the Authority must give public notice of what it has done (s. 39ZE(4)).

1. Apart from its enforcement provisions, a plan of management comes into force on the day on which the notice given under s. 39ZE(4) is published in the Commonwealth Government Gazette (s. 39ZF(1)).  The enforcement provisions of a plan of management come into force on the day which the regulations made under s. 66(2)(ba) declare that those provisions take effect (s. 39ZF(2)).

1. A plan of management may be amended provided the Authority first prepares the amendment in writing and follows those procedures it followed in preparing the plan of management (s. 39ZG).  The Authority may revoke a plan of management provided it follows the procedures set out in s. 39ZH. 

1. Part VB of the Act, under which a plan of management is prepared, came into operation on 6 April, 1995. Section 39ZI is concerned with plans of management that were in the course of preparation on that date. In relation to relevant permissions, s. 39ZI(4) provides that:

"… no relevant permissions (within the meaning of the regulations) of a kind referred to in the notice containing the direction are to be granted under the regulations in relation to that area, species or ecological community to which the plan relates during the period beginning on the date of publication in the Gazette of the notice containing the direction and ending:

(a)at the end of 12 months after that date; or

(b)on the day on which the plan of management comes into force;

whichever first occurs."

Central Section Zoning Plan

1. After being gazetted on 15 October, 1984, the CS Zoning Plan came into force in 1984.  The objective of the Marine National Park 'A' Zone, which includes Whitehaven Beach, is:

"To provide for the protection of areas of the Great Barrier Reef Marine Park while allowing opportunities for their appreciation and enjoyment by the public, including the limited removal of natural resources." (clause 7.1)

1. Clause 7.2 of the CS Zoning Plan sets out the only purposes for which the Marine National Park 'A' Zone may be used or entered.  Subject to paragraph 7.2(b), paragraph 7.2(a) sets out purposes for which that zone may be used or entered without the Authority's written permission.  Those purposes include:

"(vii)    recreational activities that do not involve the taking of plants, animals, or marine products;

…

(ix)navigation and operation of vessels, other than hovercraft and other than ships, provided that any equipment which is normally used for fishing or collecting is stowed or secured at all times at which the vessel is in a part of the Zone in which the use of that equipment is not permitted under this Zoning Plan;" (paragraph 7.2(a))

1. The written permission of the Authority is required for other purposes for which the Marine National Park 'A' Zone may be used or entered.  Among those purposes are:

"(iv)     the construction or conduct of mooring facilities for vessels;" (paragraph 7.2(b)).

1. Where the CS Zoning Plan provides that permission is required for certain purposes, regard must be had to s. 38B of the Act. Section 38B(1) provides that a person shall not use or enter the zone for those purposes unless a permission is granted to the person under the Regulations or in accordance with an authority given pursuant to a condition to which such permission is subject.  The Regulations are concerned with the manner in which permission may be sought from, and granted by, the Authority.  Only permission granted under rr. 13, 22 or 45 of the Regulations is declared to be permission to which s. 38B of the Act applies (r. 5(1)).  Such permission is referred to in the Regulations as a "relevant permission" (r. 4(1)).  Certain procedural steps must be followed in making an application for a relevant permission (rr. 10-13, 18-22 and 42-45). 

1. As Whitehaven Beach comes within the Central Section, an application must be made under r. 18.  While applications for permission to engage in traditional fishing, hunting and gathering require additional matters to be taken into consideration, the Authority must have regard to the following issues in considering all applications:

"(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 inhabitants 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 payable by the applicant in relation to chargeable permission (whether or not in force) that is overdue for payment; and

(l)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."

Whitsundays Plan of Management

1. In October, 1993, the Authority released a draft management plan for the Whitsunday Marine and National Parks for public comment ("Draft 1993 Plan") (Exhibit  9).  On 16 July, 1996, the Authority published a notice in the Commonwealth Government Gazette pursuant to s. 39ZI(4) of the Act. In that notice, it directed that no relevant permissions of the kind specified in Schedule 1 to the notice were to be granted under the Regulations in relation to the areas specified in Schedule 2. In particular, it directed that no relevant permissions were to be granted for the installation of moorings other than in areas immediately adjacent to a harbour, island resort or mainland coastal settlement as specified; in association with a permitted pontoon or structure affixed to the seabed for at least 40 days in any 60 day period; or as a replacement for a mooring for which a valid permission for the conduct of the same mooring is in force pursuant to the Regulations (T documents, T21, page 117) . The notice directed that those permissions were not to be granted for a twelve month period from 16 July, 1996 or on the day on which the Plan came into force.

1. In March, 1997, the Authority issued a document entitled "Strategic Plan for the Management of the Whitsunday Marine and National Parks" ("Strategic Plan") (T documents, T22).  In that Strategic Plan, the Authority stated that it would:

"Continue to cap the number of permits to install moorings, except immediately adjacent to and in association with resorts, coastal settlement or pontoon (eg service facilities)." (T documents, T22, paragraphs 8.5.3)

The Authority adopted the Strategic Plan as its policy in relation to the Whitsunday Planning Area at its meeting dated 11 April, 1997 (T documents, T23).  In July, 1997, the Authority proposed certain amendments to the Strategic Plan (T documents, T24). 

1. The Authority continued with its preparation of the plan that was to become the Whitsundays Plan. On 5 December, 1997 and in accordance with s. 39ZE of the Act, it notified the public that it had prepared the plan and was seeking submissions from the public. After advising that it had taken those submissions into account, the Authority altered the Whitsundays Plan in accordance with its powers under s. 39ZE(3)(e) of the Act. The Whitsundays Plan was gazetted on 22 June, 1998.

1. Division 4 of the Whitsundays Plan is concerned with the use of the area, issues and strategies.  The introduction to the Division describes the activities undertaken in the area:

"A diverse range of activities are undertaken in the Area which represents 1% of the total area of the Great Barrier Reef Marine Park.  The Area is one of the most important tourism destinations on the Queensland coast and accounts for over one-third of all visitors to the Great Barrier Reef. The Area is recognised as one of the primary presentation areas of Great Barrier Reef world heritage values.  Protection of the values of the Area, particularly the fragile reef environment, is paramount to the long-term sustainability of the local tourism industry." (T documents, T4, page 11)

1. In paragraph 1.9(b), the Authority identified a number of issues to be resolved in managing use in the area:

"·       Ensuring that all activities in the Area are ecologically sustainable and undertaken in accordance with best environmental practices.

·Ensuring that cultural and recreational use is not inappropriately displaced by growth in commercial use.

·Minimising disturbance to users of the Area caused by noisy and intrusive activities.

·Ensuring that the remote qualities of some sites are not inadvertently lost through unplanned increases in use.

·Ensuring that irregular use by most users is not inappropriately compromised by regular use by a few users.

·Ensuring that access to popular anchorages is not constrained by the installation of facilities.

·Managing intensive use to ensure it does not devalue visitor experience at popular destinations.

·Managing the spatial distribution of tourism operations throughout the Area.

·Preventing the scenic integrity of the Area from being compromised by coastal development and the inappropriate installation of facilities in, or adjacent to, the Area.

·Managing the impact of commercial collecting and mariculture on other users of the Area

·Mariculture operations may require exclusive use of large areas over a long term, can affect water quality and amenity and may conflict with other use of the Area.

·Collecting is seen by many people as incompatible with other tourism and recreational use and has the capacity to degrade reef communities and structure.

·Commercial collecting has the capacity to over-exploit the resource at a local level, particularly the inshore endemic species.  Although a wide variety of species are harvested, uncommon species are more valuable and are therefore targeted by collectors.

·These impacts are accentuated by the cumulative effects of high, overall use of the Area.

·Managing the impact of tourism of other users of the Area

·Actual tourism of the Area is much less than the potential level of use permitted under current Marine Park tourist program permissions.

·The current management system has proven effective at managing impacts from larger, site-specific operations, but has been less effective in addressing the cumulative impacts of the many smaller operations and the increasing recreational use of the Area.

·Impacts reported at many sites suggest that levels of use are already approaching the environmentally sustainable limits.

·In the absence of a more detailed planning framework Marine Park relevant permissions have historically been developed specifically for each individual tourism operation, and in many cases this has resulted in over-complex permit conditions." (T documents, T4, pages 11-12)

1. The Authority has developed a number of strategies to manage the use of the area.  Among those strategies are restrictions on the installation and use of facilities in the area.  In part, restrictions are imposed by reference to the setting area of the area under consideration.  Setting areas are described as:

"Setting 1. Developed

Immediately adjacent to urban areas and resorts.  These areas are the access points to the Area and a focus for intensive tourism and recreation.  You can expect these areas to be heavily used by a wide range of craft, and to contain permanent facilities (e.g. marinas, jetties and boat ramps).

Passenger load (including crew)                   Vessel size

no limitup to 70 metres

Setting 2. High use

A natural setting that may have high levels of visitation.  These areas are easily accessed, and appropriate facilities (e.g. pontoons, moorings, markers) may be required to manage impacts and assist in visitor interpretation of the area.  You can expect these areas to be regularly visited by larger vessels and aircraft.

Passenger load (including crew)                   Vessel size

no limitup to 35 metres

Setting 3. Moderate use

A natural setting that may have moderate levels of visitation, with appropriate moorings and management facilities to manage impacts.  You can expect these areas to be occasionally visited by larger vessels and aircraft.

Passenger load (including crew)                   Vessel size

up to 40 people  up to 35 metres

Setting 4. Natural

A natural setting with low levels of visitation.  You can expect these areas to be generally free from facilities and larger vessels and aircraft.

Passenger load (including crew)                   Vessel size

up to 15 people  up to 20 metres

Setting 5. Protected

A protected natural setting, for areas of outstanding or unique conservation value and areas of special management concern.  Access to these areas will be limited and managed according to individual site plans.

Passenger load (including crew)                   Vessel size

limited by site  limited by site"

(T documents, T4, Table 3, Page 14)

1. Paragraph 1.9(c)(iii) addressed what it described as "access to sensitive sites".  A number of sites had been assigned a Setting 5 as they possess certain unique or outstanding nature conservation, cultural and heritage and scientific values.  They were areas listed in Table 1 in the Whitsundays Plan and included Hill Inlet which covers part of the northern end of Whitehaven Bay.  Other areas, including Whitehaven Beach, were identified as "sensitive sites".  It was said that management strategies had been, or were being, developed through detailed site planning with input from the Whitsunday Coastal Advisory Committee.  Public comment would be sought for sensitive sites and the Plan would be later amended.

1. On the basis of the evidence of Mr Thomas, we find that approximately the first 2 kilometres of the southern end of Whitehaven Beach have been assigned a setting 2, the next 2 kilometres a setting 3, the next 1 kilometre a setting 4 and the final 1 kilometre a setting 5.

1. Paragraph 1.9(c)(iv) restricted the installation and use of facilities in the area covered by the Whitsundays Plan.  After recognising that there are numerous private facilities in the area, and particularly in Setting 1 areas, Hardy Reef and several other popular destinations, paragraph 1.9(c)(iv) provides that:

"Recognising that the installation of facilities at popular sites may lead to exclusivity and displacement of other users, the number of relevant permissions to install, and use, facilities in the Area is capped from the commencement of the Plan, except:

·in setting 1 areas; and

·at Hardy Reef (permanently moored facilities only)." (T documents, T4, page 15)

1. Division 5 of the Whitsundays Plan was concerned with transition and implementation.  It provided that relevant permissions might be granted to tour operators after it commenced.  The approach required clear definition of particular types of tourism operations and that was done in Table 5 where the types were identified as: standard tour operation; regional tour operation; craftless operation; hire operation; bareboat operation and cruise ship operation.  Permissions were required as tourism operations are more numerous and cumulative in effect than other uses in the area.  The Authority recognised that the large number of tourism craft operating daily in the area "… must be limited, particularly when anchoring, to protect the nature conservation and cultural and heritage values of the Area." (T documents, T4, paragraph 1.11, page 21)

1. In October, 1999, the Authority gazetted an amendment to the Whitsundays Plan.  Of consequence in this case is that to paragraph 1.9(c)(iv), which has now been renumbered paragraph 1.10(13) and reads:

"Recognising that the installation of moorings and tourist facilities at popular destinations may lead to exclusivity and displacement of other users, the number of such facilities permitted in the Planning Area will be capped, except:

·in a setting 1 area; and

·in the Hardy Reef Location." (Exhibit 15, Supplementary T Document 1, page 18)

Fantasea's tour operation

1. Fantasea is a commercial tour operator which commenced operations in October, 1985 after taking over the operations of another commercial operator, Hamilton Island Cruises.  It operates four high speed catamarans.  Fantasea offers several services: ferry services from the mainland to and from various islands in the Whitsundays group; ferry services between various of those islands; reef trips including overnight stays at Reef World; and charter party services.  Each year, Fantasea carries approximately 500,000 passengers and, for the last five years, 30,000 of those passengers have been carried to Whitehaven Beach.

1. Since it commenced operations, it has offered a daily cruise service to Whitehaven Beach.  At present, Fantasea operates its catamaran, Monarch, on that service.  That vessel is 29 metres in length and is in survey to carry 326 passengers.  In the past, it has also operated its catamaran, 2000.  That vessel is approximately 3000 metres in length and is in survey to carry 226 passengers.  In addition to its regular service, Fantasea also takes charter parties to Whitehaven Beach.  It does so approximately twice each month.  We accept the evidence of Mr Hutchen that it has always been necessary to anchor its vessels, including the Monarch, at Whitehaven Beach.  Fantasea's permit allows it to use an area of approximately 2 kilometres from the southern end of Whitehaven Beach.  The precise anchorage chosen by a skipper on any particular day is governed by factors such as the location of other vessels already anchored, the tides and wind conditions.  Given the size and nature of the vessels operated by Fantasea, of which the Monarch is an example, we also accept Mr Hutchen's evidence, and that of Mr Kilby, that it is necessary to ensure that there is sufficient anchor line to allow the vessel to swing freely without dragging its anchor. 

1. The scheduled Fantasea cruise to Whitehaven Beach leaves Hamilton Island at 12.45pm and arrives at approximately 1.30pm.  Under Fantasea's permit, its vessel must leave Whitehaven Beach by 4.00 pm.  On arrival, most people choose to go onto the beach on their arrival rather than to remain on the vessel.  They are transferred to the beach in groups of 25 to 30 in a small flat bottomed barge.  Some people choose to stay on the beach, where they sunbathe or play light sports, and others to go snorkelling.  We accept on the basis of the evidence of Mr Hutchen and on the basis of our own observations during the view, that the best areas for snorkelling are located at the southern most end of Whitehaven Beach and on a small reef located towards the southern end of the beach. 

1. Whitehaven Beach is a very popular tourist destination.  Usually, there are several other vessels anchored at the beach.  Some are privately owned, some are operated by other commercial operators, some are leased and some are bareboats.  Those sailing these vessels range from the greatly experienced to the greatly inexperienced.

1. On 3 February, 1998, Fantasea wrote to the Department of Environment in Queensland to enquire about the possibility of its installing a mooring at that southern end of the beach (T documents, page 36).  That department conducts most assessments in respect of permissions and does so in accordance with an agreement between the Commonwealth and the State of Queensland.  In its letter, Fantasea stated its intention to install the mooring in accordance with specifications issued by the Queensland Department of Transport and to insure it.  The mooring would be available to members of the public between the hours of 4.30 p.m. and 8.30 a.m. but, in order to ensure that Fantasea's cruise schedule was not interrupted, would not otherwise be available for public use.

1. Mr John Hicks, who is an officer of the Department of Environment  and a delegate of the Authority, treated Fantasea's letter as a formal application for permission to install and conduct a mooring at Whitehaven Beach.  After considering the application in light of the criteria set out in r. 18 of the Regulations, Mr Hicks refused the application (T documents, pages 37-38).  In doing so, he said that the application was refused on grounds, among others, that it failed to satisfy the requirements of r. 18(c).  That Regulation required him to take into account the likely effect of granting permission on future options for the Marine Park.  He referred also to the cap on moorings provided in the Strategic Plan for Management of the Whitsunday Marine and National Parks.

1. Fantasea sought reconsideration of Mr Hicks' decision in a letter to the Department of Environment dated 13 May, 1998 (T documents, pages 40-43).  Mr Kenchington undertook that reconsideration and affirmed Mr Hicks' decision.  His decision was based on an assessment of the impacts which the installation and conduct of a mooring would have on the Marine Park. 

THE EVIDENCE

Fantasea's cruise to Whitehaven Beach

1. A view was held at Whitehaven Beach by travelling to it on Fantasea's catamaran, the Monarch.  The trip was taken on a scheduled tour, which departed from Hamilton Island at approximately 12.45pm.  The trip connected with four other Fantasea vessels that took passengers to Hamilton Island.  The journey from Hamilton Island to Whitehaven Beach took approximately half an hour and, in accordance with Fantasea's permit, left Whitehaven Beach by 4.30pm.  The same journey is undertaken each day of the year.  Mr Hutchen said that he understood that he had been permitted to operate at Whitehaven Beach by the Authority for only a relatively brief period of time as his vessels were large.  He is aware of what his guests want and that he has only a limited time to give them that.  Mr Hutchen clarified that it is its own choice that its vessels do not arrive until approximately 1.00pm.

1. Once at Whitehaven Beach, Fantasea's vessel anchors.  Its permit allows use of the first two kilometres of the beach from the southern end.  The precise point at which it moors is determined in part by the number of other vessels that have got there before it.  If there is a south easterly wind, Fantasea's vessels will always go in.  At times, there is a northerly wind blowing and that means that a decision must be made whether to anchor at Whitehaven Beach or go on to Chance Bay.  Anchorage at Whitehaven Beach is still possible if the northerly wind is light.  Mr Kilby later estimated that a Fantasea vessel was unable to anchor at Whitehaven Beach on ten occasions in the last year.

1. The closer the vessel can get to the beach, then the smoother and more rapid is the transfer to the beach, Mr Hutchen said.  Anchoring closer to the beach also enables those who want to swim to the beach to do so.  Fantasea has not obtained a commercial activities permit from the Queensland Government and so its passengers are not permitted to move beyond the level of the highest astronomical tide.  In practical terms, that means they cannot move inland beyond the dunes on the beach.  The commercial operator, Lindeman Pacific, does hold a commercial activities permit and its passengers can go beyond the dune line to the picnic tables.

1. In cross examination, Mr Hutchen denied that anchoring at the site of the proposed mooring ("proposed mooring site") would give distinct commercial advantages.  When it was suggested to him that it would enable Fantasea to offer a broader experience than if it were to anchor one kilometre to the north, he replied that most of the 30,000 guests carried each year have no idea what to expect and they see only white sand.  He agreed that non-Fantasea guests snorkel around the coral and that they could be found there but did not agree that those people could be found in the channel in which the proposed mooring site is located.

1. The length of the anchor chain required depends upon tidal and wind conditions and the windage of the vessel itself.  In the most favourable conditions, 100 feet of chain is used and in the worst, 300 feet.  If the tide or wind changes while the vessel is anchored, it could be moved on a radius of up to 300 feet.

1. Once at Whitehaven Beach, Mr Hutchen said, the passengers usually lounge on the sand, swim, take part in light sporting activities or snorkel off the beach.  The bommies and the small fringing reef are more desirable places to snorkel and guests express disappointment that there is nothing to see off the beach.  Safety Regulations require that more than one crew member, and up to three, must observe passengers who are snorkelling.  The placement of those crew members depends upon the wind and tide.  They may be placed on the beach.  An attempt is made to observe the snorkellers from the vessel but that is difficult as the wind and tide are such that the vessel may be 300 feet away from them.  It is difficult to see a head in the water at that distance.  A permanent mooring would help as the bow of the vessel would always be at the mooring.  Fantasea staff observe those who are snorkelling from a point located on the beach and from the vessel.  If the snorkellers cannot be observed from the vessel because of changes in its position due to tide and wind variations, crew members will request snorkellers to confine themselves to areas which can be observed from the beach.  At times, compliance with this request means that they cannot gain access to the coral reef at the southern end of Whitehaven Beach.

The mooring

1. According to its letter of 3 February, 1998, the area in which it seeks to locate a mooring is at the southern end of Whitehaven Beach.  That area is just to the south of a small reef and between it and the southern most tip of Whitehaven Beach where there is a further coral reef.  The small reef is marked by a north cardinal marker and is located at latitude 20° 17.541 South, longitude 149° 03.349 East.  In his report, Mr Vernon identified the location of the proposed mooring as latitude 20 17.64ºS, 149 03.32ºE (Exhibit F).  There is no material difference between the two locations. 

1. In his oral evidence, Mr Hutchen said that there was deep water to the south of the small reef for approximately 100 to 150 metres to the edge of the fringing reef.  There is sufficient depth in which to moor a vessel.  In his report, Mr Vernon also identified the area as being located in the centre of the channel, 60 metres from either reef area and 100 metres from the beach.  It is well sheltered from the prevailing south-easterly winds, with a low tide depth of 4.5 metres.

1. A design of the proposed mooring was attached to Mr Hutchen's statement dated 12 January, 2000.  In his oral evidence, Mr Hutchen described the mooring as a concrete block sitting on the ocean floor.  Ultimately, it would be covered by sand.  The position of the mooring would be known to Fantasea's crew.  The water would be only some 4.5 metres deep and a crew member would dive from the boat, run a rope through an eyelet in the top of the block and take it back to the surface where another crew member would secure it to the vessel. 

Seagrasses at Whitehaven Beach

1. Mr Vernon of Tilera Pty Ltd prepared a document entitled "A preliminary survey of the Fantasea Cruises proposed mooring site and existing Whitehaven Beach anchorage" (Exhibit F).  On 8 August, 1999, he surveyed the seagrasses in the area by observing twenty random one metre square quadrats.  An aluminium framed quadrat was dropped from the surface and the species and cover were recorded on an underwater slate.  Ten of those quadrats were dropped in Fantasea's existing anchorage area and a further ten were dropped at the site of the proposed mooring.  Observations were carried out by both scuba diving and snorkelling.  Mr Vernon estimated the seagrass cover on the basis of tables provided in notes from the Department of Environment seagrass identification ad monitoring seminar (unpublished).  Seagrass identification was carried out on site by using keys from a publication entitled "Seagrasses of the Great Barrier Reef" (Lanyon, 1986).

1. Mr Vernon set out his results in the following tables:

"Table 1.  Existing Anchoring Area.

Quadrat         Species observed        % Seagrass cover      

1. Halodule uninervis, Halophila ovalis, Udotea sp.     < 1%  

2. Halodule uninervis, Halophila ovalis, Sargassum sp.              10-15%

3. Halodule uninervis, Halophila ovalis, Udotea sp.     <5%    

4. Halodule uninervis, Halophila ovalis, Padina sp.      <1%    

5. Halodule uninervis, Halophila ovalis, Turbinaria sp., Udota sp.      10%    

6. Halodule uninervis, Halophila ovalis <5%   

7. Halodule uninervis, Halophila ovalis. 5-10% 

8. Halodule uninervis, Halophila ovalis, Strombus sp.  <5%   

9. Halodule uninervis, Halophila ovalis, Zostera capricorni, Udotea sp.          <5%   

10. Halodule uninervis. Halophila ovalis <1%   

    Table 2. Proposed Mooring Site

11. Halodule uninervis, Halophila ovalis/minor? <5%   

12. Halodule uninervis, Halophila ovalis, solitary Palythoa polyps        5-10% 

13. Halodule uninervis, Halophila ovalis 5-10% 

14. Halodule uninervis, Halophila ovalis <5%   

15. Halodule uninervis, Halophila ovalis <5%   

16. Halodule uninervis, Halophila ovalis <5%   

17. Halodule uninervis, Halophila ovalis, Acetabularia sp.        5-10% 

18. Halodule uninervis, Halophila ovalis, solitary Palythoa polyps        <5%   

19. Halodule uninervis, Halophila ovalis, Zostera capricorni, Udotea sp.          5-10% 

20. Halodule uninervis, Halophila ovalis, Zostera capricorni, Syringodium sp. <5%   

    (Exhibit  F)

21. In the body of his report, Mr Vernon described the site at the proposed mooring as having a silty-sand substrate with a sparse seagrass community in that it has only a 5-10% cover.  It is well sheltered from the prevailing south-easterly winds and has a low tide depth of 4.5 metres.

1. Mr Vernon reported that there was no obvious disturbance of the seagrass community at the proposed mooring site.  He continued:

"This situation was in stark contrast to the existing anchorage where several quite large areas of the substratum were devoid of seagrass.  Much of the surveyed area showed clear evidence of anchor 'plough marks' and 'curved furrows' typical of chain drag in soft substrates ….  A noticeable sediment plume was observed to surround the anchor chains of all the larger vessels anchored in this area.  Fine sediment covered the surfaces of much of the remaining seagrass and algae in the existing anchorage.  A drift line of detached algae and seagrass was observed at the waters edge.

Another contributing factor to the re-suspension of sediment and the removal of seagrasses is the amount of movement while anchored.  During the two and a half hours Fantaseas' (sic) vessel '2000' was observed to swing through 270 degrees while at anchor.  This swinging at anchor was as a result of wind shift and tidal change through the afternoon, and appears to be a relatively common occurrence." (Exhibit F)

1. Mr Vernon concluded:

"While no statistical tests were applied to the collected data, it is obvious from the appearance of the two sites that significant amounts of disturbance have occurred at the present anchorage area.  Fantasea Cruises has a continuous history with this site over the last fifteen years.  As the largest commercial operator (carrying in excess of 40,000 passengers to Whitehaven beach in the last year alone), with a daily stop over at Whitehaven beach, it is not unreasonable to state that the regular anchoring of a 30 metre catamaran in the same location has contributed significantly to the disturbances observed.  The daily deployment of a 140 kilogram Danforth anchor and the associated 15 metres of 10 millimetre chain, setting the anchor, the boat swinging with wind and tide, and finally the retrieval of chain and anchor have resulted in adverse effects to the seagrass community, including the removal of seagrasses from some areas." (Exhibit F).

1. In relation to the proposed mooring site, Mr Vernon said that the substrate is similar to that observed in the existing anchorage area.  It has soft silty sand with a sparse seagrass community and very few associated organisms.  In his view, the installation of a low profile concrete mooring block would have little effect on the observed bethnic community.  The current problems of anchor damage, chain drag and re-suspension of sediment could be effectively eliminated.

1. Mr Vernon considered the effect of a submerged mooring on the proposed mooring site.  He expressed the view that:

"These measures would prevent unnecessary damage to the surrounding benthic community as well as eliminating any negative visual impact involved in having a permanent surface buoy.  It could reasonably be expected, given the nature of the substratum, after installation a mooring block would settle deeper into the substrate and further reduce its profile.  If a permanent submerged mooring was to be installed the problems encountered with boat swing, and the inappropriate anchoring of other boats within this arc, would be greatly reduced, further improving the safety standards of this operation within the marine park." (Exhibit F)

1. At the hearing, Mr Vernon agreed that the scientific standard required consideration of the variability of the measurements in seagrass community cover as well as the calculated mean value for cover.  He further agreed that the measure of variability, the standard deviation, should not exceed 20% of the mean value if weight
   were to be given to the measured mean value.  In Mr Vernon's study of seagrass community cover (Tables 1 and 2 above), this standard for measurement was not achieved.  Based on Mr Vernon's calculations at the hearing, the results in Table 1 show a mean seagrass community cover of 3.65% and a standard deviation of 3.8%.  Table 2 shows a mean seagrass community cover of 4.5% and a standard deviation of 2.85%.  Mr Vernon agreed that the large standard deviations were a result of insufficient sampling.  He further agreed that, because the standard deviations were very high, he could not draw any conclusions that could distinguish differences in seagrass community cover between the proposed mooring site and the present anchorage site.  

1. In cross examination, Mr Vernon said that he had been unable to carry out a statistical analysis as the samples taken were too small.  It would also have been normal to take samples from an area of the beach where he was fairly confident that no-one had been.  That would have been a control site.  Mr Vernon said that he had very little time to obtain objective data.  As it was, he effectively found very little seagrass at either of the two sites he surveyed but was unable to compare the seagrass at those sites with seagrass at other sites at Whitehaven Beach.  He found as much seagrass at one site as at the other although there was no indication of anchor markings at the proposed mooring site.  Anchoring always caused disturbance of seagrass but other vessels had smaller anchors. 

1. At the hearing, Mr Vernon agreed that he had insufficient samples to draw any conclusions regarding disturbance of the seagrass.  He also agreed that 20% is the permitted deviation from the mean.  Table 1 shows a mean of 3.65 and a deviation of 3.8 and Table 2 shows a mean of 4.5 and a deviation of 2.58.  In both those cases, the deviation is greater than 20% and that is as a result of the small sample size.

1. Mr McGinnity said that Queensland's Department of Primary Industry was looking at seagrasses at Whitehaven Beach.  The CSIRO had also undertaken some work.  Both had recognised expertise in the area.  A survey was completed last year and a follow up survey is being undertaken this year.  It is obvious that damage can occur when an anchor is dragged through seagrasses, but damage can also occur in other ways.  Those ways can be seasonal and can vary from year to year.  There may be, for example, storm damage, pollution, major flood or perhaps anchor damage.  There may be disturbance by dugong feeding or by animals in the silt but this is not regarded as damage but as part of the natural process. 

1. Consideration has to be given, Mr McGinnity said, to whether there is an acceptable level of damage to the seagrasses and whether there needs to be a strategy in place to limit damage.   Strategies could involve the prohibition of anchoring and the installation of public moorings while permitting existing moorings to continue. 

Navigation and anchorage at Whitehaven Beach

1. Mr Hutchen said in his oral evidence that anchoring on the day of the view had taken four minutes.  In certain conditions, it could take up to half an hour if the anchor did not take straight away and the anchor had to be taken up, the vessel relocated and the whole manoeuvre repeated.  That had happened to him up to 50 times in the past.  If Fantasea were to have a concrete mooring of the type he had described, mooring would take approximately a minute.  At times, the Fantasea vessel lets out more anchor chain to be closer to the guests in the water.  If there are other vessels in the area that will determine the amount, if any, of additional anchor chain that is let out.

1. Mr Hutchen said that he had never seen a vessel transit the channel in which the proposed mooring site is located.  He disagreed with the suggestion that the channel was well known to users of the area and used by them.  Mr Hutchen denied that Fantasea's vessels arrive at Whitehaven Beach after most other people and so he would not know whether other vessels navigated the channel earlier in the day.  He had been taking vessels, including his private yacht, to the area since 1982.  In the earlier days, his vessel had frequently been the only one at Whitehaven Beach.  One vessel, the Emma Peel II, Mr Hutchen said, always anchors at the southern end of Whitehaven Beach and approximately 75 metres away from the proposed mooring site.  It is a double masted ketch which is a commercial vessel carrying up to ten passengers on a 3 day, 2 night cruise in the Whitsundays.  The Emma Peel II operates on a strict schedule and is to be found at Whitehaven Beach every second Sunday afternoon.  It remains there for some six hours and returns to Hamilton Island that night.  

1. Other commercial operators also use the area, Mr Hutchen said.  One operates inflatable boats and another small vessels.  Lindeman Pacific stops to enable its passengers to have a swim and then continues to other destinations.  Bareboat operators are advised to stay overnight at Whitehaven Beach. 

1. Mr Kilby said in giving evidence that the frequency of use of the channel depends upon the day.  It is used mainly by smaller vessels and the odd raft or private vessel.  On the day of the view, it had been used by the Emma Peel II.  The operator of that vessel normally uses the channel once each week.

1. If there are a lot of smaller commercial vessels moored in the position Fantasea's vessel normally uses, Mr Kilby said, Fantasea moors further north along the beach.  He did not accept that there would be problems of co-existence were Fantasea to "disgorge" 300 people at one time.  If there are a lot of people, he said, they wander down the beach.

1. Navigation in the waters off Whitehaven Beach, Mr Harrison said, is relatively easy for operators.  Apart from a small section of reef at the southern end of the beach, there are no hazards in the area.  That reef is marked with a Cardinal Marker erected by the Queensland Department of Transport and is clearly visible.  Lagoon Rock is closer to the northern end of the beach but is well offshore.  It also is clearly marked with a Cardinal Marker. 

1. Mr Harrison said in his affidavit that the prevailing winds at Whitehaven Beach are south-easterly.  This means that the southern end of the beach is protected and there is very little wave action in that area.  This can be contrasted with the northern end of the beach which can be more exposed to the weather.  As a consequence, vessels tend to frequent the southern end of the beach.  On average, he continued, six commercial vessels had access to the location on a daily basis and, again on average, 21 commercial vessels had access to the area at least once or twice each week.  If large numbers of vessels are already anchored at the southern end of the beach, operators anchor further to the north.  Their landing may be rougher but that depends upon the strength of the south-easterly winds.

1. When the wind is northerly and above 10 to 15 knots, Mr Harrison said, Whitehaven Beach becomes a "lee shore".  The anchorage is less viable as vessels may drag onto the beach.  In those conditions, operators often use alternative anchorages such as Chance Bay on the other side of Whitsunday Island.  The northerly wind causes wave action at the southern end.  That wave action makes it dangerous for passengers to gain access to the beach. 

1. In his report, Mr Vernon stated that, from anecdotal information and from his observations, very few boats utilised the proposed mooring site.  That was due to its proximity to the patch of reef and, in more recent times, the installation of a north cardinal navigation mark.  On the day of his survey, Mr Vernon recorded 19 vessels in the immediate area.  With the exception of the Ocean Rafting inflatable, which was moored close inshore at the southern end of the beach, and a small dinghy tied illegally to the north cardinal mark, all observed vessels were anchored to the north of the isolated coral patch.  He did not observe any vessels in the proposed mooring site.

1. Mr Vernon referred also to the  publication, 100 Magic Miles, by David Colfelt, 5th edition, 1997, Windward Publications Pty Ltd (Exhibit C), in which bareboat operators are advised to anchor to the north of the lone coconut palm on the beach:

"The anchor is shown slightly west of north of the lone palm tree on the beach.  If you're directly opposite the palm tree you may find yourself too close to the reef patch.  Keep the palm tree to your south-east." (Exhibit C, page 209 and see also page 208)

1. Mr Ross John McMullen is a Master Class V with Restricted IV employed by Fantasea.  In his statutory declaration, Mr McMullen referred to an occasion on 8 July, 1999 when the vessel 2000 arrived at Whitehaven Beach on a scheduled cruise (Exhibit G).  He was unable to anchor within ¾ mile of the south-eastern end of the beach due to the number of vessels already anchored there.  In view of that, he took the vessel to the area between the north cardinal marker and the rocks at the south eastern end.   While anchored there, he and the crew assisted the bareboat Jazzm'n, which had driven straight into the coral bommies between the north cardinal marker and the beach.  Jazzm'n was taken safely away from the bommies and assisted to anchor further to the north.  She suffered rudder damage.

The Zoning Plans

1. Mr Robinson said that the regulatory scheme in relation to the Marine Park provides a hierarchy of controls. The scheme comprises the Act, zoning plans, plans of management and Regulations. The 25 Year Strategic Plan for the Great Barrier Reef World Heritage Area also provides operational guidelines for activities in the Marine Park. It is the zoning plans, Mr Robinson said, that provide for the broad scale administration, separation of conflicting use and a mechanism to assess, on a case by case basis, the impacts of a wide variety of activities before allowing them to proceed in the Marine Park.

1. In his oral evidence, Mr Robinson said that Fantasea's application could not be looked at in the context of 40 square metres.  It had to be looked at against six years of planning and a statutory moratorium.  Those matters cannot be lightly ignored.  If they are to be ignored, future moorings in the area could not be avoided for if one were to be allowed, there would be no basis for refusing others. 

The Whitsundays Plan

1. Mr McGinnity said that the primary natural value of Whitehaven Beach is an outstanding silica sand beach and flats.  At the time of the preparation of the CS Zoning Plan, the area was identified as a key recreational area having a popular anchorage, with the main users being yachting, recreational fishers, campers and day visitors.  When public comment was sought regarding the Draft 1993 Plan, the main concern expressed regarded the impacts of increasing visitor numbers to the area and the conflicts between commercial and recreational areas.  Most respondents identified a need for limits on the type and location of the facilities associated with tourism. 

1. Mr McGinnity said that successive versions of the Whitsundays Plan have continued to identify Whitehaven Beach as a location that will accommodate high use in a natural setting.  The final plan, he said, recognised that the installation of moorings at popular sites is likely to limit access to those sites and lead to displacement of other users who do not have access to those moorings.  Consequently, he said, the Whitsundays Plan did not provide for the installation of moorings other than in association with existing developments or in circumstances where they are the only means of ensuring environmental protection.  The strategy proposed required the conduct of surveys to delineate areas at those sites where anchoring is not appropriate.  The installation of public moorings was also proposed to provide for continued access by Marine Park users where there is no alternative anchorage available.  Mr McGinnity said that the adoption of this strategy led to the establishment of 60 public moorings and 13 areas in which no anchorage was permitted.  In his view, this strategy had met with support from users of the Whitsundays and the broader community and damage to the protected sites had generally been very considerably reduced or eliminated.

1. Before the Whitsundays Plan was implemented, Mr McGinnity said, nine private moorings were permitted to be installed in areas that do not conform with the final outcome of the management planning process.  When applications are made in the future to maintain those moorings, the Authority can consider whether they should be permitted to continue.

1. Apart from those nine moorings, the Authority has consistently refused applications to install private moorings.  Mr McGinnity said that this approach has proven to be effective in the protection of high use sites from anchor damage while providing flexibility for tour operators and visitors to enjoy the diversity of sites in the area.  Experience elsewhere in the Marine Park has shown that the approval of a mooring at a popular destination will result in other operators demanding moorings as a means of ensuring that their operation also has a guarantee of access to the destination.

1. In his oral evidence, Mr McGinnity said that there had been two occasions on which public submissions had been called for regarding the Whitsundays Plan.  There had been meetings and they had been widely publicised in the local and Queensland State papers.  Stakeholders had been contacted and questionnaires sent to them.  A joint management plan was developed with the Queensland Parks and Wildlife Service as what is done in the water may affect the beaches and vice versa. 

1. Historically, people have been permitted to have private moorings at places such as Hardy Reef.  In some bays, there is no choice but to anchor in the coral.  If that were permitted, coral would be damaged and it takes 5 to 10 years to come back.  At Whitehaven Beach, there are anchorages that are not near coral.  Seagrasses are more ephemeral and there is no clear evidence of change in them at Whitehaven Beach. 

1. Mr Thomas joined the Authority when the Draft 1993 Plan had been adopted by the Authority as an interim policy.  Under that draft, Management Areas were created (Exhibit  9, paragraph 4.2 and Table 1).  Moorings were permitted adjacent to built environments in Management Area 1 and were also permitted in Management Areas 2 and 3 but only where no other solution could be found to eliminate environmental damage.  Manta Ray and Bait Reef are examples of the latter category.

1. The Authority implemented a reef protection programme to identify those areas where coral grew and anchoring occurred frequently.  Those areas, Mr Thomas said, were marked as "no anchoring areas".  After implementing that programme between July, 1994 and June, 1996, the Whitsundays Plan was amended in October, 1999 to give effect to further no anchoring areas.  Mr Thomas said that he worked on the programme to identify suitable locations for public moorings and no anchoring areas around the Whitsunday Islands.  The primary purpose of the installations was to address the extensive anchor damage at popular destinations while continuing to provide access to those areas through the use of moorings.  The focus for the programme, Mr Thomas continued, was heavily used areas with extensive and diverse fringing reefs and with northerly aspects with the least exposure to the prevailing weather conditions.  Such areas are attractive both to tourists and recreational users.  Once suitable sites were identified, public moorings of various sizes and categories were installed.  Their sizes and categories were determined having regard to information obtained through consultation with the public and industry and having regard to existing patterns of use.

1. Mr Thomas said that Whitehaven Beach was not a candidate site for the reef protection programme.  That was because the nature of the substrate in the waters adjacent to Whitehaven Beach is ideal for anchoring vessels.  The sand is 5 to 10 metres in depth and provides a good holding ground.  There is limited risk of damage to sensitive habitat/biota.  A further concern, Mr Thomas said, is that the placement of moorings at Whitehaven Beach would significantly constrain access to this area.

1. The Strategic Plan identified the need to cap privately installed facilities (see paragraph 35 above).  Mr Thomas said that this was "… essentially due to the success of the reef management program and the availability of access to other areas of the Whitsundays through anchoring (see paragraphs 8.4 and 8.5 of Document T022)" (Exhibit  7, paragraph 13).  The Settings first proposed in the Draft 1993 Plan were retained in the Strategic Plan with only some modifications.  Mr Thomas said that they were established to provide for a range of tourist and recreational opportunities in the Whitsundays.  The Whitsundays, he explained, represents 1.5% of the Marine Park but attracts 50% of the total Marine Park tourist and vessel visitation.  Some of the issues addressed by the establishment of Settings are displacement and crowding, the amenity and social impacts associated with mass tourism and the development of resorts and marine infrastructure. 

1. Mr Thomas said that a number of settings had been assigned to Whitehaven Beach.  At the south-eastern corner, it was a Setting 2 and a Setting 5 at the north-western end.  It follows that the mooring sought by Fantasea is in a Setting 2 area.  The area is a primary destination for nature based tourism and recreation because of its outstanding natural beauty, accessibility, and the relative shelter afforded during prevailing weather conditions.  The area is adjacent to the State National Park.  It is without facilities other than a bush toilet.  The area had not, Mr Thomas said, been deemed to be suitable for designation as a Setting 1 area.

1. Mr Thomas explained that the nine private moorings in the Whitsunday Islands facilitate access to day use sites.  The primary purpose of the installations had been for convenient and secure access to beaches, islands and waters, and not for reasons of environmental protection.   Mr Thomas understood that there were a further six private moorings at Bait Reef which is also in the Whitsunday Planning Area.  Bait Reef is the closest reef to the township of Airlie Beach and provides ideal conditions for outer reef diving.  A further seven public moorings are located at Bait Reef.  They provide access for the community at large.  Bait Reef has been designated as a no anchoring/no fishing area because of the need to protect the coral and aesthetic values of the reef.

1. In cross examination, Mr Thomas agreed that the channel is approximately 200 metres wide and Fantasea's vessels 30 metres long.  He did not consider that the mooring would significantly restrict access to the channel but would restrict access to an area of Whitehaven Beach.  If Fantasea's vessel were moored at the proposed mooring site, access to the adjacent area of Whitehaven Beach would be required.  That access would create an extensive node at that part of the beach and restrict the access of others to it.  Therefore, the mooring would constrain the access of others to that part of the beach, to the adjacent water and to the access channel.  Even if there were not physical constraint, others' choice to go there would be constrained by the presence of Fantasea's vessel. 

1. The southern end of Whitehaven Beach had been designated a high use area because of the experience it offered.  There was concern to ensure that it remains a primary destination for tourists.  Allowing one operator to have a mooring at the end of the beach does not guarantee that all can share in it.  Once a permit has been granted, sharing cannot be forced upon the holder of that permit.

1. Mr Thomas was also concerned that facilitated access to the southern end of Whitehaven Beach might lead to increased potential displacement of people with traditional interests at Hill Inlet.

Considerations relating to the installation and position of the mooring

1. Mr Hutchen stated in his affidavit that a permanent mooring would significantly reduce the risk of any collision with other boats.  In his oral evidence, he said that a permanent mooring would not have any effect upon other operators and nor would there be any effect if Fantasea's vessels were moored there.  While Fantasea sought exclusive use of the mooring between 1.15 and 4.30pm, he imagined that it would be available for public use at other times.  If another vessel wanted to use the mooring while Fantasea's was there, it could do so simply by coming along side.  There would be no difficulty at all, he said.  If a Fantasea charter vessel were to be there at the same time, it could also come alongside.  As that only happened some 30 times a year it was a fairly unusual occurrence.  There would not be enough room in the channel for three vessels. 

1. During cross examination, Mr Hutchen said that Fantasea would notify all of the people in the industry of the mooring and tell them that they could use it if they wanted to.  Any private user would be frightened of going in that area because of the cardinal marker and the information in 100 Magic Miles.  In view of his being prepared to share the mooring, Mr Hutchen rejected the proposition that the mooring would give him exclusive use of the mooring but agreed that he wanted exclusive use when Fantasea's vessel was there.  Others should have their own moorings.

1. In cross examination, Mr Hutchen said that Fantasea sought the mooring for reasons of safety and convenience as well as to enhance the guests' experience.  If 180 people are on board, for example, it presently takes the best part of 40 minutes to transport them to the shore.  Safety would be enhanced because guests in the water could be more closely monitored.  There is no obligation to monitor those on the beach but crew members are present. 

1. Mr Hutchen acknowledged that there was no need for a permanent mooring in order to protect coral formations at Whitehaven Beach.  Fantasea's crew members are, he said, aware of the location of the coral and of the need to protect it.  A permanent mooring is not necessary in order to protect the coral from Fantasea's operation.

1. Mr Kilby also addressed the issue of collision in his affidavit.  He had estimated the radius of the circle in which a vessel could be swung by wind or tide movement as 600 feet.  A permanent mooring would reduce the movement of the vessel to its length i.e. approximately 100 feet.  The reduction in movement would, in turn, reduce the risk of collision of Fantasea's vessels with other vessels in the area.  That, in turn, would reduce the care required by the Fantasea's vessel's crew members who currently must be on permanent standby to ensure that the vessel does not collide with other vessels.  The risk of the vessel's dragging its anchor would also be reduced.  That is a greater problem when there is a high wind.  While it is a problem for all vessels, the superstructure on Fantasea's vessels acts like a big sail even when it is moored in a sheltered position. 

1. A vessel such as the Emma Peel II would still be able to sail up the channel were the Fantasea vessel to be moored at the proposed mooring site.  Whether other vessels could do the same would depend upon their size.  They could sail on the northern side of the north cardinal marker.

1. A further advantage of a permanent mooring, Mr Kilby stated, was that it would lead to a reduction in the time taken to secure Fantasea's vessel.  Depending upon conditions, anchoring can presently take between 5 and 15 minutes.  A mooring would significantly reduce that time.

1. Reduction in the vessel's movement would also mean that it could be kept near the reef at which passengers may be snorkelling.  The passengers' snorkelling activities would not have to be curtailed as is presently the case when the vessel moves too far away to enable the crew to maintain a proper lookout for their safety.  In his oral evidence, Mr Kilby further explained his concern about safety.  The mooring would ensure the benefit of the vessel itself and also mean that the passengers would not have to concern themselves overly with maintaining position.  A watch would still have to be kept but there would be no need to worry about dragging the anchor up the beach.

1. Mr Kilby addressed the potential damage to the seabed in both his affidavit and in his oral evidence.  In his affidavit, he stated that sea grass grows on the ocean floor in most of the area in which vessels are permitted to anchor at Whitehaven Beach.  He had been snorkelling and diving many times in the area and had noticed that the anchorage seems to disturb the sea grass. 

1. In Mr Kilby's view, this is the most favourable place for a mooring as it has the most protection from prevailing south-easterly trade winds and there is not as much sea grass on the sea floor as in other areas in the vicinity.

1. Mr Harrison, who has had 21 years' experience in navigating in the Whitsundays area both privately and as an officer of QPWS, stated that the establishment of moorings can have both positive and negative features.  In his affidavit, he described the positive features:

"(a)     Moorings reduce the physical and environmental impact of a vessel locating itself in a place for a period of time;

(b)Moorings make it easier for the vessel operator to locate the vessel (ie put the vessel in a certain location);

(c)Moorings indicate to other users the position in which a vessel will locate itself; and

(d)A properly installed mooring will not drag." (Exhibit  6)

1. Mr Harrison described negative features as including:

"(a)     Moorings lay a claim to a location and deny other operators the use of that location;

(b)Moorings create a negative visual impact that may affect the amenity of the area; and

(c)Submerged mooring tackle can foul the tackle of anchored vessels." (Exhibit  6)

1. Mr McGinnity said that damage as a result of anchoring had not been a problem at Whitehaven Beach.  Apart from the small coral outcrop at the south-eastern corner of the beach and Lagoon Rock, both of which are marked by Cardinal Markers, no markers or moorings are required to eliminate environmental damage.  The installation of a mooring could itself cause damage to the sea bed as could its maintenance and any movement caused by tides.  He acknowledged that he was not an expert in moorings.  In cross examination, Mr McGinnity agreed that Fantasea's vessel would stay in one position were it to be moored to a fixed mooring and that there would be no damage to the sea bed as a result of any movement.

1. Mr McGinnity predicted that the importance of waters adjacent to Whitehaven Beach will grow as tourist numbers and adjacent coastal populations increase.  The strategies in place provide for the maximum sustainable use of the Whitsundays.  Should a decision be made to allow operators to install moorings at sites such as Whitehaven Beach, Mr McGinnity said:

"The proposition that government policy cannot bind the Tribunal does not imply that policy can be ignored.  It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either the Ministerial or departmental levels to govern its application.  As Bowen CJ and Deane J observed in Drake (at 420):

'… the consistent exercise of discretionary administrative in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power.'

… The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question.  They cannot be expressed to fetter the exercise of the relevant discretion.  Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits.  But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal." (page 206)

1. When regard is had to this passage, it becomes clear that it would normally be necessary to consider the consistency of the Whitsundays Plan with the CS Zoning Plan as well as with the Act and Regulations regardless of whether that plan is of a legislative character or whether it is simply a statement of policy. Having regard to the evidence in this case, however, it seems to us that there is no need to consider this aspect. For reasons we will give, the evidence, when considered in light of the Act, Regulations and CS Zoning Plan, leads us to conclude that permission to install the mooring at the proposed mooring site should not be given. That is so regardless of any cap which paragraph 1.10(13) purports to impose. It follows that it is unnecessary to consider consistency for, if we were to decide that it is inconsistent with the Act, Regulations or CS Zoning Plan, we would not have regard to that paragraph and, if we were to decide that it is consistent, that would not alter our decision.

1. The reasons for our decision begin with a consideration of the meaning of r. 18(4), which sets out the matters to which the Authority must have regard in considering an application for a relevant permission of the type sought by Fantasea (see paragraph 33 above).  The requirement that the Authority "shall have regard to" the matters set out in the Regulation requires us to take into account and to consider those matters but does not limit us to those matters (Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 55 LGERA 197 (King CJ, Prior and O'Loughlin JJ).

1. Taking first r. 18(4)(a), it requires us to consider the objective of the zone.  Whitehaven Beach comes within the Marine National Park 'A' Zone.  The objective of that zone is set out in clause 7.1 of the CS Zoning Plan (see paragraph 29 above) and has two aspects: the protection of that part of the Marine Park; and opportunities for the appreciation and enjoyment of that part by the public, including the limited removal of natural resources.  While seemingly inconsistent in some circumstances, it is clear from the objective that neither aspect is subservient to the other.  The balance to be achieved between the two in any particular case depends upon the facts and circumstances prevailing at the time.

1. In the circumstances of this case, we are satisfied on the basis of the evidence that a mooring at the proposed mooring site would be consistent with the first aspect of the objective.  It would be consistent in so far as there is no evidence that its installation or subsequent use would in any way damage, harm or have any adverse effect on the area immediately surrounding the proposed mooring site or the wider areas of Whitehaven Beach.  We have reached that conclusion on the basis that it is located in the centre of the channel, 60 metres from either reef area and 100 metres from the beach.  It is well sheltered from the prevailing south-easterly winds, with a low tide depth of 4.5 metres. 

1. We are also satisfied that the mooring would be a concrete block fitted with a ring to take a mooring rope from a vessel.  It would not be visible from the surface and would not be marked by surface buoys.  We also accept that the concrete block could reasonably be expected to settle into the substratum after installation.  There is no evidence that any seagrasses in the proposed mooring site would be adversely affected by the mooring.  We are satisfied that any coral formations in the area would not be affected in any manner by the mooring.  There is no evidence that any aquatic life will be affected by either the installation or the use of the mooring.

1. The second aspect of the objective causes us concern.  There is no doubt that the mooring sought by Fantasea will allow opportunities for its passengers to appreciate and enjoy the south eastern end of Whitehaven Beach and so their experience of that beach.  Those passengers are members of the public but only a segment of the public.  What of the public generally?  The objective of a Marine National Park 'A' Zone refers not to a segment or segments of the public but to "the public". 

1. This brings us to the Visitor Experiences Report prepared for the Authority, which is the only evidence regarding the activities undertaken by visitors to Whitehaven and the activities in which they seek to engage while there.  On the basis of that report, we are satisfied that Whitehaven Beach attracts visitors from all age groups and from both Australia and overseas.  Most visitors want to participate in water-based activities such as swimming and snorkelling, enjoying the sea and sand and relaxing and sunbathing while at Whitehaven Beach.  A person's appreciation and enjoyment of an area is influenced by the value that he or she attaches to that area.  On the basis of the Visitor Experiences Report, we accept that the strongest values associated with Whitehaven Beach relate to its natural and ecological processes, conservation, recreation and educational opportunities as well as the quiet, peacefulness, solitude and escape that it offers.  The extent to which it has those values, or a person's perception of whether or not it has them, may be influenced by various factors.  Those factors include natural phenomena such as the weather and external influences such as noise from aircraft or vessels. 

1. When the Visitor Experiences Report was prepared, the existing settings in the Whitsundays Plan were in place.  The proposed mooring site is located in an area designated as a Setting 2.  That setting recognises that the area is a natural setting that may have a high level of visitation and is easily accessible.  It also recognises that the area may be regularly visited by larger vessels.  While we accept that, on the basis of the advice in 100 Magic Miles, bareboat operators are discouraged from navigating the channel in which the proposed mooring site is located, we find that they are not prohibited from using the channel.  We also find that other operators, such as those of the Emma Peel II, the vessels of Lindeman Pacific, inflatable boats and other small vessels use the channel.  At this stage, no vessel of the size of Fantasea's vessel, 2000, moors in the area.

1. We find that the channel in which the proposed mooring site is located is to the south of a small reef at the southern most tip of Whitehaven Beach.  At that southern most tip is a further coral reef.  We have already accepted that the best areas for snorkelling are located at the southern most end of Whitehaven Beach and on a small reef located towards the southern end of the beach.  Snorkelling may also occur at other areas of Whitehaven Beach but we are satisfied that snorkellers do not have the opportunity to explore coral formations in those other areas. 

1. Visitors to Whitehaven Beach also enjoy activities other than snorkelling.  They include swimming which occurs along the length of the beach.  It is not concentrated in the channel in which the proposed mooring site is located or at any other point along the beach.  Other activities include walking on the beach.  Unless an operator has obtained a commercial activities permit from the Queensland Government, its passengers are not permitted to walk beyond the level of the highest astronomical tide.  There is evidence of only one operator, Lindeman Pacific, having such a permit.  Its permit allows its passengers to go beyond the dune line to the picnic tables located at the south eastern end of the beach.

1. Fantasea's permit currently permits its passengers to use the first 2 kilometres of Whitehaven Beach from the southern end.  It has no entitlement to moor off any particular part of that 2 kilometre length of the beach but must "take its chance" with those vessels that have arrived earlier in the day.  Its passengers must also "take their chance" as to whether they are ferried to a part of the beach closer to the best snorkelling area or whether they are further away at the more northerly end of the 2 kilometre stretch of the beach available to them.  By the same token, visitors to Whitehaven Beach who have arrived with other operators or in other vessels must also "take their chance" as to who has arrived before them and where they have chosen to anchor.  Lindeman Pacific, for example, is entitled to use the picnic tables above the dune line but, whether its passengers have a shorter or longer walk to get to those tables, depends upon where that vessel is able to moor.  Whether or not its passengers enjoy their time above the dune line with relatively few other people in the adjacent area of beach and water depends upon where other vessels have moored and upon the numbers of people venturing from more northerly areas of the beach to those areas.  That, in turn, is dependent upon where other vessels, arriving before the Lindeman Pacific vessel, are moored.

1. If Fantasea's vessel were to be given permission to moor at the proposed mooring site, an element of certainty would be introduced into the expectations of those visiting Whitehaven Beach.  The certainty would be that, between approximately 1.30pm (and possibly earlier for Fantasea's current permit allows that) and 4.00pm, Fantasea's vessel would be moored in the channel at the proposed mooring site.  It would be moored 60 metres from the reef at the southern end of the beach and 100 metres from the beach. 

1. Under current arrangements, every operator and visitor has an equal opportunity to enjoy its experiences subject only to the dispersement of those who have reached the beach before them.  The introduction of a fixed mooring point for a large operator would concentrate a significant number of people in one area of the beach. 

1. A further certainty would be that, each day, up to 300 people would be introduced into an area of the beach close to both the picnic tables (which are outside the Marine Park and on Queensland National Park) and into an area of water close to the best snorkelling area at Whitehaven Beach.  No longer would the opportunities of visitors to Whitehaven Beach to enjoy the experiences it offers be limited only by the numbers of people who happened to visit that day, the location of where they were able to find an appropriate mooring and the numbers who choose to walk to a particular area of the beach or snorkel in a particular area.  Those opportunities would now be limited by the fact that, each day between 1.30pm and 4.30pm, a significant number of people would be introduced into one particular area of the beach and at a location adjacent to the best snorkelling area.  Dispersement would not be left to chance as is presently the case.  At that point, there would be a significant impact upon the values of quiet, peacefulness, solitude and escape ascribed to Whitehaven Beach by those who visit it.  Given that the proposed mooring site is adjacent to the best snorkelling area on the beach, the presence of a large vessel in the channel would be a significant discouragement to other visitors to the beach to choose to snorkel in that area.  So too would the greater number of passengers from the Fantasea vessel who could be expected to choose to snorkel in that area given the fact that the vessel would be mooring adjacent to it rather than some distance from it.  There are some safety advantages in that though that would be considered.

1. Even though there is a significant effect upon the values enjoyed by visitors to Whitehaven Beach other than those carried by Fantasea, it could be said that those visitors still have opportunities to appreciate and enjoy the area.  That is so but clause 7.1 of the CS Zoning Plan must be read as permitting the Authority, and so the Tribunal, to consider the quality and extent of those opportunities.  That consideration must include the evidence that it is easier to watch over swimmers and snorkellers in the water from the deck of a boat moored closer to them than it is from the beach.  Such a watch is in the interests of greater water safety.  For all practical purposes, however, those persons who enjoy greater water safety will be the passengers of Fantasea.  That follows from our finding that the presence of Fantasea's vessel will act as a significant discouragement to other visitors to that part of the beach.

2. Having taken all matters into account, we have concluded that granting permission to Fantasea to install and operate a mooring at the proposed mooring site would diminish the opportunities presently available to the public to appreciate and enjoy Whitehaven Beach.  That diminution would be so significant that the public could not be said to have an appropriate opportunity to appreciate and enjoy the south eastern end of Whitehaven Beach.  Therefore, we consider that granting the permission would not be consistent with the objective of the zone.

1. Our conclusion on this aspect is relevant in considering r. 18(4)(c), which is concerned with the likely effect of granting the permission on future options for the Marine Park.  In view of our previous findings, we are satisfied that the proposed mooring would lead to long term changes in the recreational opportunity values of Whitehaven Beach for the public as a whole and not simply for passengers carried by Fantasea.

1. Regulation 18(4)(d) raises issues relating to the conservation of the natural resources of the Marine Park.  Mr Vernon has given evidence regarding the coverage of seagrass in the area of the proposed mooring site and in the site of Fantasea's anchorage on the day of his on site study.  During the course of his evidence, Mr Vernon acknowledged that he had taken too few samples to enable him to undertake a proper statistical analysis of differences between seagrass community cover between the proposed mooring site and the present anchorage site.  He also acknowledged that he had insufficient time to establish a control site or to obtain objective data generally.  The limited results he did obtain showed that the seagrass coverage was the same in the area of the proposed mooring site, where there was no apparent anchor marking, as that at the actual mooring site where there was such marking.  In view of this and in the absence of any evidence as to damage of any other natural resource at Whitehaven Beach, we are not satisfied that there is any impact, one way or the other, of the proposal on the conservation of the natural resources in that area. 

1. Regulation 18(4)(e) requires us to consider the nature and scale of a mooring in relation to the existing use and amenity, and the future or desirable use and amenity, of the area.  In Mohr and Great Barrier Reef Marine Park Authority (1998) 53 ALD 635, we considered the meaning of this provision:

"(106)   Regulation 13AC(4)(e) considers the nature and scale of the mariculture proposal in relation to the existing use and amenity, as well as the future or desirable use and amenity.  The term 'amenity' is not defined in the GBRMP Act or GBRMP Regulations.  The ordinary meanings of the words are reflected in the following passage from the judgement of O'Bryan J in Melbourne City Council v Silver Top Taxi Service Ltd (1994) 89 LGERA 387 at 390:

'Amenity is an ordinary English word meaning "the quality of being pleasant or agreeable"; "the more human and pleasurable environmental aspects of a house, factory etc"; "pleasant places and scenes" (Oxford Dictionary)."

(107)               These meanings are also reflected in the technical meaning of the term 'amenity' reflected in the following definitions adopted in environmental issues:

.Amenity:        'refers to non marketable environmental benefits such as beauty and tranquillity'

Gilpin A. Environmental Planning. A CondensedEncyclopaedia Noyes Publications, New Jersey USA, 1986;

.Amenity:        'the desirable features of a particular area, particularly those that improve human comfort and convenience'

Meagher D. The MacMillan Dictionary of the Australian Environment Macmillan, Melbourne, 1991.

(108)               The meaning of the word 'amenity' as it is used in the context of building control and town planning was considered by de Jersey J in Broad v Brisbane City Council [1986] 2 Qd.R. 317 when he said at 326:

'In Cecil E. Mayo Pty. Ltd. v. Sydney City Council (1952) 18 LGR (NSW) 152 at 156 Sugerman J described the amenity of a neighbourhood as "the quality which it has of being pleasant or agreeable". One would think that the assessment of that quality would necessarily involve subjective judgments, and often judgment for which it would be difficult to offer a rational, concrete foundation. In Balgowlah Investments Ltd v Manly Municipal Council, above, he suggested that central to the significance of apprehended injury to amenity is the question of what residents are "justly entitled to expect." But that question is ordinarily not to be answered by reference to absolute, immutable standards, but will usually itself depend in turn on other "questions of degree".

In Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA. 8 at Sugerman J offered the following observations on the concept of "amenity" in town planning legislation:

'"Amenity" is not confined to the negative factor of freedom from physical discomfort through the effects of noise, smell, and the other matters referred to in the proviso to clause 27 of the County of Cumberland Planning Scheme Ordinance. It relates also to the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer-by as to the resident, and as well to those across the road, who may be unaffected by noise etc., as to the adjoining and other occupiers on the same side. "Amenity" may be taken to express that element in the appearance or layout of the town and country which makes for a comfortable and pleasant life rather than a mere existence.'

See also Humby v Woollahra Municipal Council (1964) 10 LGRA. 56 at 65.

There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one's perception of amenity.'"

1. In the context of this case, the "amenity" relates to matters such as the
   natural and ecological processes, conservation, recreation and educational opportunities as well as the quiet, peacefulness, solitude and escape offered by Whitehaven Beach.  For the reasons we have given in considering r. 18(4)(a), we are satisfied that Fantasea's proposal would significantly affect the existing use and amenity of the area. 

1. Regulation 18(4)(f) is concerned with the likely effects of the proposed mooring on adjoining and adjacent areas as well as any possible effects it might have on the environment and the adequacy of safeguards for the environment.  In this context, the word "environment" means not simply the biological and physical aspects of an area but also its intangible, including social, aspects. Although not defined in the Act, we draw support for our conclusion from the definition of the word in s. 3 of the Environment Protection (Impact of Proposals) Act 1974 ("EPIP Act") where it is defined to include:

"… all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings."

We do so for the EPIP Act necessarily complements the Act.

1. For the purposes of r. 18(4)(f), the effect of the proposed mooring is likely to have a significant effect on the area of the Queensland National Park immediately adjacent to the southern end of Whitehaven Beach and on which are situated picnic tables.  We are satisfied that the regular presence of a significantly greater number of people at the south eastern end of the beach would significantly affect the values of quiet, peacefulness, solitude and escape presently enjoyed by visitors taken to Whitehaven Beach by operators holding a commercial activities permit from the Queensland Government.  Those values are part of the environment of that part of the Queensland National Park.

1. In relation to r. 18(4)(g), there is no suggestion that Fantasea's existing arrangements regarding transport of passengers at Whitehaven Beach is anything other than satisfactory.  There is no suggestion in this case that rr. 18(4)(b), (h), (i), (k) and (l) are relevant.

1. Taking into account all our findings and particularly the lack of consistency of the proposed mooring with the objective of the CS Zone, the effect of such a mooring upon the opportunities of the public to enjoy the values of the area and its impact upon those values and those of the immediately adjacent Queensland National Park, we have decided that Fantasea should not be granted permission to install a mooring at Whitehaven Beach.  Therefore, we have decided to affirm the decision of the respondent dated 19 June, 1998.

I certify that the one hundred and fifty four preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President) and Dr E K Christie (Member)

Signed:          ..........................................
  M Martinez     Associate

Date/s of Hearing  23 January, 2000 -  26 January, 2000
Date of Decision   15 September, 2000
Counsel for the Applicant             Mr P Hack
Solicitor for the Applicant            Macrossan & Amiet
Counsel for the Respondent         Mr M Fellows
Solicitor for the Respondent         Australian Government Solicitor