Innovative Reefs Pty Ltd and Minister for the Environment and Water

Innovative Reefs Pty Ltd and Minister for the Environment and Water [2023] AATA 186 (17 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/0275
Re:Innovative Reefs Pty Ltd
APPLICANT

Minister for the Environment and WaterAnd
RESPONDENT

Decision
Tribunal:Deputy President J. Sosso
Date:17 February 2023
Place:Brisbane

The decision under review is affirmed.
................................[SGD].....................................
Deputy President J. Sosso
Catchwords
ENVIRONMENT AND WATER – sea dumping – permits – placement of artificial reef – London Protocol – pollution – potentially harmful material – novel proposal – absence of independent expert evidence – exercise of discretion under s 19(1) – absence of long-term management arrangements – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Environment Protection (Sea Dumping) Act 1981 (Cth)
Cases
No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities (2010) 117 ALD 622
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133
Secondary Materials
1996 Protocol To The Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter, opened for signature on 1 April 1997 (entered into force 24 March 2006)
Department of Agriculture, Water and the Environment (Cth), National Plastics Plan (2021)
Department of Agriculture, Water and the Environment (Cth), Interim Policy Position on the Use of Plastic Fibres as Concrete Reinforcement Material in Artificial Reef Modules (2021)
Department of the Environment and Energy (Cth), Threat Abatement Plan for the impacts of marine debris on the vertebrate wildlife of Australia’s coasts and oceans (2018)
UNEP Regional Seas, London Convention and Protocol/UNEP: Guidelines for the Placement of Artificial Reefs (2009)
REASONS FOR DECISION
Deputy President J. Sosso
17 February 2023
INTRODUCTION

Innovative Reefs Pty Ltd (The Applicant) seeks a review of a decision of a Delegate of the Minister for the Environment and Water (the Minister) refusing to grant a permit under s 19 of the Environment Protection (Sea Dumping) Act 1981 (Cth) (the Act). The application was for a permit to carry out an artificial reef placement in waters off the Gold Coast, Queensland.
The objective of the Act is to protect the environment by regulating dumping into the sea, incineration at sea and the placement of artificial reefs in Australian waters. The term “Australian waters” is defined in s 4(1) of the Act to include, inter alia, the territorial sea of Australia.
The term “artificial reef” is defined in s 4(1) as follows:
“…a structure or formation placed on the seabed:
(a) for the purpose of increasing or concentrating populations of marine plants and animals; or
(b) for the purpose of being used in human recreational activities;
and includes anything prescribed by the regulations to be an artificial reef for the purposes of this definition, but does not include anything prescribed by the regulations not to be an artificial reef for the purposes of this definition.”
The term “artificial reef placement” is defined in s 4(1) to mean “the placement of any controlled material into the sea for the purpose of creating an artificial reef, being a placement that is not contrary to the aims of the Protocol”.
The Protocol referred to is the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 done in London on 7 July 1996 as amended and in force in Australia from time to time (the London Protocol).
The Applicant is a private company. The Applicant was formed specifically for the purpose of advancing a project for the creation of an artificial reef in waters off the Gold Coast. Initially discussions were held with the Gold Coast City Council and the Queensland Government. On 12 June 2015, the Honourable Dr Steven Miles MP, then Minister for Environment and Heritage Protection and Minister for National Parks and the Great Barrier Reef in the Queensland Government wrote to Mr JB, the Applicant’s Managing Director, in the following terms – Exhibit 1 T5 p. 229:
“I can see some merit in your proposals and certainly agree that here would be benefits to Queensland tourism should the City of Gold Coast (CGC) decide to proceed with the development of a world class dive reef site. However, as the proposed Gold Coast Dive sites are in offshore waters, they are not within my portfolio jurisdiction. Therefore, I recommend you continue your engagement with CGC to further discuss the development of this initiative.”
Following further discussions with the Gold Coast City Council in 2015, the Applicant has focused its endeavours on seeking approval for the placement of an artificial reef with the Commonwealth Government.
On 16 December 2015, Mr JB submitted to the then Department of Agriculture, Water and the Environment (the Department) an application for a permit for the placement of an artificial reef under s 18 of the Act – Exhibit 1 T5 pp. 49 – 230.
The proposed artificial reef placement as set out in the application has in the intervening seven years been modified, and in some respects quite significantly. Some of the information outlined below comes from the application, however care has to be taken in relying too much on the proposal as contained in the application, as some of the material contained therein is now out of date.
The proposed artificial reef is comprised of “virgin concrete, dedicated design, dive structures constructed specifically for this purpose” – Exhibit 1 T5 p. 50. The modules would have “no ferrite base reinforcement (steel) used at all…as we deem it’s [sic] expected lifetime in salt water far too short. All reinforcement will be inert synthetic and will not deteriorate in salt water” – Exhibit 1 T5 p. 50.
The application involved the progressive siting of artificial reef structures to form (primarily) scuba diving attractions in the waters approximately 2.4 kilometres offshore and due east from a point between Sheraton Mirage and Sea World – Exhibit 1 T5 p. 50. The site is now proposed to be located 3.5 nautical miles east of Main Beach, with a total artificial reef area of 25 hectares – Exhibit 6 para 25.3 p. 192.
The application was made prior to the 2018 Gold Coast Commonwealth Games, and it was (in 2015) proposed that 4,620 tonnes of mass (comprising three modules) would be deployed prior to the Commonwealth Games and a further 18,480 tonnes (comprising 12 modules) after the completion of the Commonwealth Games. In total an artificial reef placement of 23,100 tonnes was proposed – Exhibit 1 T5 p. 52.
The proposed reef structures are purpose-built modules, each comprising a separate scuba diving attraction. Whilst, as noted above, scuba diving is the primary purpose of the artificial reef, a secondary stated object is to act as “Fish Aggregation Devices” – Exhibit 1 T22 p. 487. The Applicant intends the site to “double as a marine research facility as well. Considerable emphasis is on the propagation of juvenile species. Also, to have a coral, kelp and algae seeding within and on the modules…The aim is enhancement at every level” – Exhibit 7 p. 15.
The modules are proposed to be placed in stages, with the first stage comprising three modules – Henge Arches, Henge Pyramid and Henge Colosseum – Exhibit 1 T3 p. 16. Eventually, approximately 16 modules are intended to be placed with a total weight of approximately 29,700 tonnes and over a ten year period – Exhibit 1 T3 p. 16, Exhibit T22 p. 487.
The Applicant proposes to install synchronised flashing-light buoys to indicate the extremity of the site, and each site boundary buoy will be secured by a 14-tonne hollow concrete block, measuring 6 x 3 x 3 metres, with reinforced corners – Exhibit 1 T22 p. 487.
The location is outside of Queensland waters and the water depth is approximately 38 to 43 metres – Exhibit 1 T22 p. 487, Exhibit 6 para 25.7 p. 193. The seafloor of the placement area is flat, sandy and lacking significant rock outcrops or features – Exhibit 6 para 25.6 p. 193. The overwater clearance is expected to be no less than eight metres from the uppermost parts of the modules – Exhibit 6 para 25.7 p. 193.
The underwater structures are designed to be self-weighted with no requirement for anchoring – Exhibit 1 T22 p. 491.
The primary goal of the artificial reef placement is to create the “largest dedicated design dive reef in the world” – Exhibit 1 T22 p. 492. The Applicant provided the following description of the proposed artificial reef placement – Exhibit 7 pp. 5- 6:
“…The whole Dive Henge concept is fundamentally about diving and marine environment enhancement, diving, like divers have not seen before. It was not ever intended to be a static dive site, it will be one that is evolving, growing, expanding, diversifying. Our aim is for Dive Henge to eventually be the largest Dedicated Design Dive Reef, certainly in Australia, maybe in the world.
A single engineering discipline is just not going to make the cut for such a project.
The project is not about doing something different just to be different. It is about having a goal, addressing each of the myriad steps to that goal, with the view to how it is currently done in a particular way, why it is done in a particular way, can the technique be improved upon, or maybe made obsolete altogether. If the steps become leaps the goal becomes unprecedented.
We aim for the unprecedented…”
A person commits an offence if, otherwise than in accordance with a permit, the person carries out an artificial reef placement – s 10E of the Act.
In the period 2016 to 2018, the Applicant provided further information to the Department in support of its application.
On 8 April 2020, the Department engaged Mr John Polglaze, Principal of PGM Environment, to assist in its assessment of the Applicant’s application – Exhibit T23 p. 512. Mr Polglaze is a marine and environmental scientist with post-graduate qualifications and is a Chartered Marine Scientist – Exhibit 2 pp. 1 – 40.
On 17 April 2020, Mr Polglaze prepared a Report in which he advised that further information was required to assess the Applicant’s application – Exhibit 1 T14 p. 341:
“In a nutshell, I believe that any issue of a Permit would be premature at this stage, noting the lack of detail, inaccuracies and level of ambiguity which characterise the submission.”
The Applicant’s application was considered by the Minister to be “duly made” (pursuant to s 40(2) of the Act) on 24 April 2020 – Exhibit 6 p. 189.
On 24 April 2020 a Delegate of the Minister wrote to the Applicant seeking further information. The following request was made – Exhibit 1 T15 p. 366:
“The Department has reviewed your permit application and has identified some areas where further information or clarification is required. These comments are provided at Attachment A.
As a delegate of the Minister for the Environment, I am requesting further information in accordance with subsection 18(3) of the Sea Dumping Act to enable the assessment of the application. As a result of further information being required, the statutory timeframe for issuing the permit is stopped as at the date of this letter. Once the additional information is provided and deemed to be sufficient, the 90 day period outlined in subsection 19(2) of the Sea Dumping Act to grant or refuse to grant the permit will begin…”
The further information requested was an analysis, preferably by an independent and suitably qualified marine or coastal engineer of:
(a)the construction, materials and method of assembly of the modules for use in the proposed artificial reef;
(b)the method of transporting the modules from shore to the placement site, and subsequent placement on the ocean floor;
(c)confirmation that the sea floor is suitably flat and stable for the intended placement of the modules;
(d)an analysis of the structural and positional stability of the modules in the placement location and configuration, in the event of a 1-in-100 year storm event;
(e)details of the proposed six tonne marker moorings;
(f)details of consultation undertaken with indigenous community representatives; and
(g)details of consultation with nominated entities – Exhibit 1 T19 pp. 455 - 456.
On 31 May 2020 the Applicant forwarded to the Department a detailed reply – Exhibit 1 T16 pp. 368 – 399.
Without going into unnecessary detail, the Applicant provided the following information – Exhibit 1 T16 pp. 368 – 369;
(a)most sub-modules would be slightly larger than a standard shipping container, approximately 3 x 3 x 6 metres;
(b)the mass of each mould would be approximately 9 to 10 tonnes;
(c)sub-module casting would be from specified ready mixed concrete with Polypropylene Fibre Reinforcement; and
(d)the expected lifetime of the materials was claimed to be “not measured in two- or…three-decades it will be measured in many centuries.”
The Applicant also provided detailed information on the method of assembly of the modules – Exhibit 1 T16 pp. 369 - 371.
Nonetheless, the information provided did not contain an analysis by an independent and qualified marine or coastal engineer and did not contain evidence that the proposed artificial reef would be able to withstand a 1-in-100 year storm event – Exhibit 1 T27 p. 604.
On 22 September 2020, Mr Polglaze prepared his final Report (the PGM Report) – Exhibit 1 T22 pp. 484 – 510. In his Report, Mr Polglaze referred to the Applicant as the “Dive Henge – Gold Coast”.
With respect to Mr JB, Mr Polglaze made the following observation – Exhibit 1 T22 p. 491:
“The Proponent claims some modest experience with undersea engineering, but no evidence has been provided of any previous involvement with artificial reef placements nor is there any claim of previous experience in the design and development of artificial reefs. As such, there is no indication that the Proponent has been able to draw upon any experience when developing the proposed artificial reef off the Gold Coast, or its means of placement.”
After a detailed analysis of the Applicant’s proposal, Mr Polglaze concluded as follows – Exhibit 1 T22 pp. 507 – 508:
“Based upon the material submitted by the Proponent, it is considered that the proposal for the placement of the Dive Henge artificial reef off the Gold Coast lacks the level of detail and rigour considered sufficient for assessment leading to approval. Although DAWE could formulate and issue a Permit on the basis of the AfARP and make this contingent upon the Proponent rectifying the identified deficiencies and ambiguities, it is considered that the span and scale of weaknesses evident in the AfARP is such as to introduce an elevated level of uncertainty and risk.
Any Permit which may be issued would need to be caveated with a range of requirements as considered necessary for the Proponent to clarify and complete the detail required to conclude whether or not the proposed placement should be considered to be acceptable. Accordingly, it is suggested that if a Permit for the artificial reef, including mooring blocks, is to be issued, then the Proponent should be required to undertake the following as conditions of any such Permit:
·Provide information on the bracing elements and column extensions depicted in the imagery provided of the Henge Arches, and satisfactorily demonstrate that the proposed items and their constituent materials are fit-for-purpose and environmentally acceptable.
·Excise the use of PVC pipe sections from the proposed designs, and substitute these for a more environmentally benign material.
·Provide independent analysis by a suitably qualified and experienced marine coastal engineer of the proposed construction, materials and method of assembly of the modules, and their structural stability and durability in the marine environment for their intended purpose.
·Provide an analysis by a suitably qualified and experienced marine or coastal engineer of the structural and positional stability of the modules, in the intended placement location and configuration, in the event of a 1-in-100 year storm event, including the details of all assumptions underpinning such an assessment.
·Detail what arrangements will be implemented if suitably flat and stable areas for intended placements cannot be found to be naturally occurring within the proposed placement area.
·Undertake to implement and effectively respond to and report on outcomes of consultation with recognised stakeholder entities, as detailed in the evaluation report…
·Undertake and provide details of further consultations undertaken with Indigenous community representatives, and confirm that this consultation has canvassed the revised site proposed for the artificial reef placement….
Mr Polglaze outlined a number of other proposed conditions, however the conditions set out above provide a good indication of the type of concerns that Mr Polglaze had about the application. After setting out the proposed conditions, Mr Polglaze made the following recommendations – Exhibit 1 T22 p. 509:
“On the basis of the review of the information submitted by Innovative Reefs Pty Ltd and the underlying assumptions outlined by PGM, it is concluded that DAWE could conceivably approve the placement of the proposed Dive Henge – Gold Coast artificial reef at the location indicated and employing the materials and methods nominated by the Proponent, but any such approval would need to embody a number of significant and pervasive caveats. Essentially, any DAWE approval could only be on the basis that the absent details and ambiguities evident in the material submitted with the AfARP were successfully remedied by the Proponent. Furthermore, approval of the application based upon the information submitted to date by the Proponent would represent a relaxation of the normal standards and requirements expected by DAWE with regard to the technical rigour and detail of an AfARP. Given the extent and nature of information absent from the materials submitted by the Proponent, it is considered that any recommendation for approval by DAWE of the proposed placement should be unavoidably and strictly contingent upon the Proponent addressing the deficiencies identified in this AfARP assessment to the satisfaction of DAWE.
Furthermore, given the unique and untested artificial reef design and proposed means for its placement and assembly, it would be considered prudent for any Permit which may be issued to be initially limited to only one of the proposed structures. This would then provide the Proponent with the opportunity to test, validate and, as necessary, refine procedures, and to report such to DAWE.
On 25 September 2020 the Department wrote to Mr JB providing a copy of the PGM Report, and informed Mr JB that the Department was not satisfied on the information provided to that time, and the Report, that the application met the standards required for the placement of an artificial reef in Australian waters. The Applicant was invited to provide further information in response to the Report, and, in particular, the conditions he recommended – Exhibit 1 T23 pp. 511 – 513.
On 16 November 2020, Mr JB wrote to the Department outlining in detail the Applicant’s response – Exhibit 1 T24 pp. 519 – 563. At the outset, Mr JB made the following submission – Exhibit 1 T24 p. 520:
“This is a unique project, never undertaken in this scale or using the methods that are proposed.
To the best of the Proponents knowledge this has not been done before anywhere in the world. By default, there must be aspects of this which are new to Environment and new to PGM.
This is the nature of innovation and this project is innovative to say the least and that was always the Proponents intention. Why, because it changes established methodology and introduces something that is new, safer, cheaper, more resourceful, more efficient and the essence of Dive Henge, the W0W factor.”

The Applicant, through Mr JB, responded to the concerns raised by Mr Polglaze, however the response was not backed up by independent expert evidence – Exhibit 1 T27 p. 604, Exhibit 6, para 14 p. 190.
Independent of the Applicant, the Department sought advice from an independent consulting engineer, Golder Associates, to undertake a technical review of the engineering aspects of the proposal. The Department was provided with a Report from Golder Associates dated 9 April 2021 (the Golder Report) – Exhibit 1 T26 pp. 573 – 601. The Report was signed on behalf of Golder Associates by Matthew James, Principal Environmental Scientist, and James McIIquham, Principal – Exhibit 1 T26 p. 598.
The Report firstly deals with specific items of view, namely: assembly, structural integrity, structural stability, materials and stability.
With respect to assembly, the following observations were made – Exhibit 1 T26 pp. 582 – 585:
“Golder has reviewed the application documentation with an aim to understand the method of assembly. The information presented is not structured in a way which clearly demonstrates the method of assembly for the modules…This minimal amount of technical data is considered insufficient in regards to understanding the proposed assembly methodology and rationale…without a detailed assembly methodology Golder’s review is limited in regard to the adequacy of the proposed assembly methodology of the initial three modules (Henge Arches, Henge Pyramid and Henge Colosseum)…Several artificial reef modular structures (modules) are analysed in the CFD [Computational Fluid Dynamics] study, however details of their assembly and their method of placement has not been presented in the application…It contains the list of 37 different types of modules, 12 of them having undergone CFD analysis. Golder notes that none of the detailed CFD information for these 12 structures has been presented to Golder for review as part of this assignment by DAWE…
Golder considers the assembly aspects of the application which have been provided as incomplete. The incompleteness of the application means that Golder has not been able to confirm that the technical information provided in the application is sufficient for the intended assembly process.”
Second, Golder considered the structural integrity of the proposed constructions (Henge Arches, Henge Pyramid and Henge Colosseum) during all stages of the proposal, including construction, transport and placement. Golder concluded that the documentation presented an inadequate level of information to understand if the proposed constructions have structural integrity – Exhibit 1 T26 p. 585. In reaching this conclusion, the Report outlined the perceived deficiencies of information with respect to construction, transportation and placement. In concluding, the Report contains the following observations – Exhibit 1 T26 p. 586:
“Golder considers the technical information provided in the applicant’s submission regarding structural integrity of the proposed modules to be incomplete. Hence, Golder feels that the application is not sufficient for the intended purposes of at least meeting minimum technical requirement under the UNEP guideline used to assess the application. Golder considers that the structural integrity aspects of the application that have been provided are not presented in a way which allows Golder to fully assess whether the demonstration of the integrity of the proposed structures is technically sound. The application has not been completed in accordance with standard structural design practice. As a result, Golder feels that the application is also incomplete in its ability to demonstrate that the structures are safe for recreational divers to use.”
Third, Golder considered structural stability, including load distribution, in the marine environment of the modules. Golder reached the following conclusion – Exhibit 1 T26 p. 586:
“Golder has not been able to consider if the applicant’s submission is sufficient for the intended purposes of at least meeting the minimum technical requirements under the UNEP guideline, as it is incomplete. Golder could not identify any verification of geotechnical bearing capacity of the soils to deal with the loads. Golder therefore considers the aspects of the application which consider the structural stability which have been provided are not presented with sufficient technical detail. Further information such as the coordinates of the proposed deployment locations and provision of analysis methods and backscatter images of the locations and geotechnical bearing capacity calculations would assist further consideration of the application regarding structural stability related to the ground (sediment) conditions.”
Fourth, Golder considered the integrity, durability and “fit-for-purpose” nature of the materials proposed for the construction of the modules in the marine environment, including the use of Polyvinyl Chloride (PVC) piping.
Golder first outlined details of the materials proposed to be used – Exhibit 1 T26 p. 587:
(a)the sub-modules will be pre-cast using a concrete mixture containing polypropylene fibres;
(b)the concrete will be pumped into the moulds and the concrete will be steam-cured overnight;
(c)approximately 2.87 kilograms of monofilament polypropylene fibre will be used as reinforcement per tonne of concrete;
(d)following adequate setting time and after the moulds are stripped, the surfaces are subject to secondary treatments to achieve the desired level of surface finish; and
(e)the modules will be floated to the reef location where they are interconnected to each other using a fast-setting grout.
Golder noted the following suggested deficiencies of information provided – Exhibit 1 T26 p. 587:
(a)no details on the fresh, hardened and durability of the properties of the grout are provided;
(b)no details on the logistics of the floating placement in combination with injecting the grout (underwater and above water) are provided;
(c)no details around quality control of successful grouting are provided; and
(d)no details around prevention and impact of grout spillage in the aquatic environment are provided.
With respect to PVC, Golder made the following observations – Exhibit 1 T26 p. 590:
“Polyvinyl Chloride (PVC) is one of the world’s most widely produced synthetic plastic polymers and the main raw materials for its production are derived from salt and oil. Chlorine from seawater is combined with ethylene (obtained from oil) to form vinyl chloride monomer (VCM) which is polymerised to form PVC resin. Bio-derived hydrocarbon feedstock has been also used to replace the oil-derived component. Before PVC resin is used to produce the final product, plasticizers, pigments, and stabilizers may be added to the resin. When PVC is manufactured, very small amounts of dioxin (a collective name for a group of 210 chlorinated compounds, 17 of which are considered to be toxic) can form during the manufacturing of VCM. The dioxins are absorbed by a catalyst and stabilized; however, some may be released into the environment during its production or during uncontrolled combustion. No details on the type, size and specification of the PVC tubes were provided; however, it is assumed that the PVC that will be used as the fish attractant tubes are manufactured under the Australian regulations for industrial emissions and waste management. PVC has a long successful history of being used for piping and buried culverts under a wide range of exposure conditions. It is common to assume a 100-year design life for these types of PVC pipe applications and in the absence of exposure to acids and specific chemicals. However, UV light radiation can cause portions of the outer shell of PVC pipes to discolour and degrade. Long-term UV light exposure can decrease PVC’s impact strength and resistance. The Proponent failed to demonstrate that the PVC tubes selected for use will have a serviceable life of 30-years in the marine environment and that any degradation it undergoes will not impair its function or result in material loss.”
Golder concluded by observing that the aspects of the application which consider the integrity, durability and “fit-for-purpose” nature of the materials proposed to be used, were inadequate and further information is required to permit an appropriate technical review to be undertaken – Exhibit 1 T26 p. 590.
Fifth, Golder considered the structural and positional stability of the modules in the intended location and configuration, in the event of a 1-in-100 year storm event.
Golder noted that the proposed artificial reef is in a region of active tropical cyclones which will expose the modules to the effect of high waves, current and storm surge. Figure 6 of the Report illustrated the tracks of all tropical storms and Category 1 to 5 cyclones which have passed within 200 nautical miles of the dive site – Exhibit 1 T26 p. 591.
The following suggested deficiencies in the application and supporting documentation were outlined by Golder – Exhibit 1 T26 p. 592:
(a)no report on extreme metocean conditions at the reef site are provided;
(b)no consideration given to changes in the metocean condition due to climate change;
(c)no report on ambient wind, current statistics at the reef site;
(d)the CFD report does not consider wave forces and does not include the three module types proposed for the reef. The report also does not consider the change in environment forces because of marine growth on the modules;
(e)no report on structural analysis addressing module integrity under extreme and fatigue loads;
(f)no analysis of sliding and overturning stability of the three module types when subject to the design wave and current conditions;
(g)no analysis of the potential for foundation scour and the effects of differential settlement; and
(h)lack of detail and relevant sketches describing the equipment and methodology used for the transport and installation of the reef modules.
Golder concluded that the information present to establish the stability of the modules is incomplete and not sufficient to determine if the modules meet the minimum technical requirement under the London Convention and Protocol/UNEP: Guidelines for the Placement of Artificial Reefs (the UNEP guidelines) with regards to their stability engineering aspects. Further “Golder considers that the module stability analysis presented in the application is not technically sound and is missing critical aspects, and is based on errors in technical reasoning” – Exhibit 1 T26 p. 596.
In the part of the Report headed “CONCLUSIONS” the following observations were made – Exhibit 1 T26 pp. 596 – 597:
“…The submission of the Proponent has significant gaps and errors and has not addressed the required aspects. In general, where information is provided it takes the form of a narrative to inform a conceptual design. In almost all instances his narrative does not follow a standard engineering design process and there is insufficient technical information in all aspects presented to Golder.
These gaps and errors are considered significant at this stage and the feasibility of the proposed placement of the reef structures requires significant professional engineering input from qualified and specialised engineers with demonstrated competency in the hydrodynamic, structural and material aspects of marine and coastal engineering.
Prior to the project proceeding further detailed engineering and planning would be required.”
On 9 June 2021 the Department wrote to the Applicant enclosing a copy of the Golder Report and giving the Applicant an opportunity to respond to its conclusions. The letter also contained a preliminary view of the application – Exhibit 1 T27 p. 605:
“Having considered the information held by the department on your application, I am not currently satisfied that the proposed placement would not result in potential risks to human health and would not be contrary to the aims of the London Protocol. As such, I am presently inclined to refuse to grant you an artificial reef placement permit. However, this is only a preliminary view at this point, and I am yet to make a final decision on your application.”
On 5 August 2021, Mr JB, on behalf of the Applicant responded at length to the conclusions in the Golder Report – Exhibit 1 T30 pp. 613 – 712. Further information was forwarded to the Department on 17 August 2021 – Exhibit 1 T31 p. 713.
On 10 January 2022, a delegate of the Minister decided to refuse the application under s 19 of the Act – Exhibit T4 p. 45.
ISSUES
The Minister submits, and the Tribunal agrees, that the core issue is whether the Tribunal is satisfied that the proposed artificial reef placement would not be contrary to the aims of the London Protocol – Exhibit 6 para 26 p. 193.
In addressing this issue, the Tribunal needs to determine if it is reasonably satisfied that the artificial reef placement would not, following the definition of “pollution” in the London Protocol – Article 1.10:
(a)result in hazards to human health;
(b)cause harm to living resources and the marine ecosystem; or
(c)hinder marine activities, including fishing and other legitimate uses of the sea.
Finally, even if the Tribunal is reasonably satisfied that the artificial reef placement would not be contrary to the aims of the London Protocol, it needs to determine whether it should exercise its discretion to refuse the grant of a permit for an artificial reef placement.
THE LAW
Pursuant to s 19(1) of the Act, the Minister may, in his or her discretion, grant, or refuse to grant, a permit to a person who has made an application pursuant to s 18.
In considering whether to grant a permit, the Minister is required to have regard, inter alia, to the London Protocol – s 19(8A)(a).
The Tribunal’s attention was drawn to No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities (2010) 117 ALD 622 (No Ship Action Group). In that matter, President Downes J and Members Wulf and Hyman made the following observations:
“[35] It is plain that the Protocol recognises placement for a purpose other than mere disposal which is “not contrary to the aims” of the Protocol as not being dumping. The sting is, however, in the tail. In every case it is necessary to test whether the proposed action is contrary to the aims of the Protocol. That involves looking at the objectives in Article 2 and at the meaning of “Pollution” in Article 1. An artificial reef placement which was likely to result in harm of the kind identified in the definition of “Pollution” would almost certainly be contrary to the aims of the Protocol. It would consequently amount to dumping and the Protocol would apply generally. For Australia, this conclusion flows both from the definition of “Dumping” in the Protocol and the definition of “artificial reef placement” in s 4 of the Act.
[36] We must accordingly first examine whether the proposal is contrary to the aims of the Protocol. This requires us to give attention to the Protocol as a whole, including the Annex, although the Annex may not strictly apply if the proposal is found not to be contrary to the aims of the Protocol.”
The Preamble to the London Protocol stresses the need to protect the marine environment and promote the sustainable use and conservation of marine resources. Further, the Contracting Parties to the London Protocol:
“BEING CONVINCED that further international action to prevent, reduce and where practicable eliminate pollution of the sea caused by dumping can and must be taken without delay to protect and preserve the marine environment and to manage human activities in such a manner that the marine ecosystem will continue to sustain the legitimate uses of the sea and will continue to meet the needs of present and future generations…”
Article 1 paragraph 4 defines dumping by excluding, inter alia:
“2. placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Protocol…”
The objectives of the London Protocol are set out in Article 2 as follows:
“Contracting Parties shall individually and collectively protect and preserve the marine environment from all sources of pollution and take effective measures, according to their scientific, technical and economic capabilities, to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter. Where appropriate, they shall harmonize their policies in this regard.”
The term “pollution” is defined in Article 1.10 as follows:
“‘Pollution’ means the introduction, directly or indirectly, by human activity, of wastes or other matter into the sea which results or is likely to result in such deleterious effects as harm to living resources and marine ecosystems, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.”
Article 3 sets out the general obligations of Contracting Parties, and makes it clear that in implementing the London Protocol, a precautionary approach is to be applied:
“1. In implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even where there is no conclusive evidence to prove a causal relation between inputs and their effects.”
Article 4 requires Contracting Parties to prohibit the dumping of any wastes or other matter with the exception of those matters set out in Annex 1. Paragraph 1.4 of the exceptions in Annex 1 are:
“vessels and platforms or other man-made structures at sea”.
Paragraph 2 of Annex 1 goes on to provide:
“The wastes or other matter listed in paragraphs 1.4 and 1.7 may be considered for dumping, provided that the material capable of creating floating debris or otherwise contributing to the pollution of the marine environment has been removed to the maximum extent and provided that the material dumped poses no serious obstacle to fishing or navigation.”
The dumping of wastes or other matter listed in Annex 1 requires a permit and Contracting Parties are required to adopt administrative or legislative measures to ensure that permits issued and conditions imposed comply with the provisions of Annex 2 – Article 4 para 1.2.
Paragraphs 17 and 18 of Annex 2 deal with the granting of permits and permit conditions. Paragraph 17 provides as follows:
“A decision to issue a permit should only be made if all impact evaluations are completed and the monitoring requirements determined. The provisions of the permit shall ensure, as far as practicable, that environmental disturbance and detriment are minimized and the benefits maximized. Any permit issued shall contain data and information specifying:
.1the types and sources of materials to be dumped;
.2the location of the dump-site(s);
.3the method of dumping; and
.4monitoring and reporting requirements.”
Contracting Parties to the London Protocol are at liberty to use the London Convention and the UNEP Guidelines to assess proposed placement of artificial reefs. The UNEP Guidelines are intended to assist:
(a)those countries that have recognised the need to assess artificial reef placement proposals on the basis of scientifically sound criteria as well as to develop an appropriate regulatory framework;
(b)by the provision of guidance in the implementation of regulations;
(c)in updating existing guidelines ore regulations.

The Tribunal in No Ship Action Group also had regard to the UNEP Guidelines - in part at [41]:
“In these reasons we have also had regard to the Guidelines for the Placement of Artificial Reefs made under the protocol and published jointly by the International Marine Organization and the United Nations Environment Program.14 These require that “Contaminants that are likely to cause harm to the marine environment should be removed … to the maximum extent possible”: Art 5.1 of Annex 5. They also require “vessels to be cleaned of potential sources of pollution”: Art 5.2. The guidelines provide: “Regulations should strive at all times to enforce procedures that will result in environmental changes as far below the limits of environmental change as practicable”: Art 9.3...”
In this matter, the Tribunal accepts that it is appropriate to have regard to the UNEP Guidelines where relevant.
The Tribunal’s attention was also drawn to the Department’s Interim Policy Position on the Use of Plastic Fibres as Concrete Reinforcement Material in Artificial Reef Modules (the Interim Policy Position), which was signed by the former Minister on 6 July 2021 – Exhibit 1 T40 pp. 1029 – 1031.
The Interim Policy Position which is sent to sea dumping permit applicants is as follows – Exhibit 1 T40 pp. 1030 – 1031:
·     The department has received a number of applications for sea dumping permits for artificial reefs which include as part of their designs, concrete modules reinforced with plastic fibres.
·     The department’s preferred environmental outcome is that artificial reefs avoid the use of plastic fibres and instead utilise traditional steel reinforcement or other natural fibres as a concrete reinforcement.
·     The department considers the use of plastic fibres in artificial reef modules to be unsuitable due to:
o   the lack of long-term studies and therefore scientific uncertainty about the breakdown of artificial reef modules containing plastic fibres over their design life.
o   the department’s concern about the feasibility of monitoring the exposure, breakdown and release of plastic fibres from the artificial reef modules over the life of the permit.
o   the department’s concern about the feasibility of removal of artificial reef modules if monitoring identifies that release of plastic fibres has occurred or is likely to occur.
o   concern for consequent impacts on the marine environment if plastic fibres are released.
·      The department is unlikely to recommend the granting of sea dumping permits for artificial reefs which include plastic fibres in their designs.
·     The policy position is consistent with the Australian Government’s preference for the long-term prevention of the incidence of marine debris as stated in the department’s Threat Abatement Plan for the impacts of marine debris on the vertebrate wildlife of Australia’s coasts and oceans (2018) and the Australian Government’s National Plastic Plan (2021)…”
THE HEARING
A Hearing was initially convened in Brisbane on 26 October 2022, with the Applicant being represented by Mr JB and the Minister by Mr B Kaplan. Both Mr JB and Mr Kaplan appeared remotely.
Mr JB gave evidence and was cross-examined by Mr Kaplan. No other persons were called to give evidence.
Mr Kaplan informed the Tribunal that Mr JB, on behalf of the Applicant, was asked if he wished to cross-examine the independent experts whose reports are discussed above, but did not avail himself of that opportunity – Transcript (Tr.) 26.10.2022 p. 55.
Mr JB requested that the Tribunal make various non-publication and non-disclosure Orders pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth). Mr Kaplan opposed the request for Orders pursuant to s 35 for the following three reasons –Tr. 26.10.2022 p. 5:
(a)it was not clear what Orders the Applicant was seeking;
(b)the documents in respect of which the Orders were sought had not been identified; and
(c)the reasons of the Orders had not been clearly articulated.
I determined to deal with the request for Orders pursuant to s 35 at a later date.
Subsequently on 25 November 2022 the Tribunal reconvened and dealt with submissions by Mr JB for confidentiality Orders.
CONSIDERATION
Introduction
It is tolerably clear to the Tribunal that the material presented lead necessarily to the following conclusions:
(a)the Applicant proposed to place an artificial reef in waters east of Main Beach, Queensland;
(b)it is disputed if the Applicant’s proposal constitutes an “artificial reef placement” for which a permit should be granted under the Act because there is insufficient evidence that the placement would not be contrary to the aims of the London Protocol; and
(c)even if the Tribunal is satisfied that the reef placement would not be contrary to the aims of the London Protocol, the Minister contends that the Tribunal should exercise its discretion under s 19(1) of the Act to refuse the grant of a permit.
Is the proposed reef placement contrary to the aims of the London Protocol?
As discussed previously, the definition of “artificial reef placement” in s 4 of the Act requires that the placement is not contrary to the aims of the London Protocol.
In determining whether the Applicant’s proposed reef placement is or is not contrary to the aims of the London Protocol, the Tribunal proceeds on the basis of the material presented by the parties. No party bears an onus of proof, but it is incumbent on a party to present such material it deems appropriate to advance its case. In this matter the Tribunal is required to make a finding as to whether the proposed artificial reef placement is not contrary to the aims of the London Protocol.
Also, as previously discussed, the aims of the London Protocol are set out in Article 2, which requires Contracting States to protect and preserve the marine environment from all sources of pollution. That term, also as previously discussed, is defined to include the introduction of wastes or other matter into the sea resulting or likely to result in harms, hazards and hindrance to marine ecosystems, marine activities and human health.
Accordingly, if the Tribunal determines not to affirm the reviewable decision, it would need to be satisfied that the proposed artificial reef placement is not likely to result in “pollution” as defined in Article 1.10 of the London Protocol.
It is the Minister’s contention that there are significant gaps in the Applicant’s material, and, in particular, an absence of independent expert evidence addressing the regulatory requirements of the London Protocol and the Act. This lack of independent expert evidence is contrasted with the Minister supplying two independent expert Reports on key aspects of the Applicant’s artificial reef proposal – Exhibit 6 para 51 p. 199.
The Minister submits that the Tribunal cannot be satisfied that the proposed artificial reef placement would not – Exhibit 6 para 52 p. 199:
(a)result in hazards to human safety and human health;
(b)cause harm to living resources and marine ecosystems;
(c)be a hindrance to marine activities, such as fishing and other legitimate uses of the sea; or
(d)impair the quality for use of sea water.
It will be noted that the above issues follow the definition of “pollution” in the London Protocol – Article 1.10.
The Tribunal agrees that it is appropriate to proceed on the basis submitted by the Minister as it accords with the scheme of the London Protocol.
Hazards to human health and safety
Structural integrity and stability
First, the Minister contends that there is insufficient evidence for the Tribunal to be satisfied that the proposed artificial reef would – Exhibit 6 para 53:
(a)have structural integrity;
(b)be stable; or
(c)be located in an area which would provide locational stability.
In support of these propositions, the Minister first contends that the available material does not provide a sufficient basis for the Tribunal to conclude that the proposed placement site would provide stability – Exhibit 6 para 54. It was contended that the Applicant’s position is that the depth of sand at the nominated location is sufficient, but the only evidence in support of that proposition is a document located at Exhibit 1 T10 p. 295. It was also pointed out that the Applicant has provided no independent assessment or evidence in support of that claim – Exhibit 6 para 55.
In response, the Applicant made the following observations – Exhibit 7 p. 33:
“This [referring to Exhibit 6 para 54] is PGM’s statement: - it is primarily sand depth which will determine locational stability of the structures.
When asked,
Are you able to provide more detail as to why sand depth is considered a parameter for module stability? Nothing, zilch, no reply.
The Applicant’s view is previously stated, ‘if the sea floor is stable who cares what the sand depth is, it’s stable.”
This assertion of the Applicant is at odds with the findings in the PGM Report prepared by Mr Polglaze. In that Report the following observation was made – Exhibit 1 T22 p. 497:
“There is no evidence of ground-truthing of the bathymetric survey with respect to the actual depth of the sediments at the nominated location. The composition and depth of sediment is considered to be a key element of the evaluation of site suitability, as it is primarily sand depth which will determine the locational stability of the structures, particularly during severe weather events….The Proponent implies that the depth of sand at the nominated location is sufficient for the intended purpose, and that the reef modules will not likely move as a result of the influence of storms and severe swells. No independent assessment of the claims of module stability presented by the Proponent have been made by PGM; accordingly, PGM assumes no responsibility for the accuracy of the Proponent’s assessments, nor for any subsequent movement of the artificial reef modules, nor any consequences of such movement.”
Subsequently, Mr Polglaze made these observations about the seabed of the proposed location – Exhibit 1 T22 p. 501:
“The Proponent also assumes that the locations where the structures will be placed will be virtually flat or able to be made so by divers with handheld equipment, and that all elements and section of the structures will bed uniformly into the sediments. This approach is considered to be optimistic, at best, but neither realistic nor acceptable as the basis for approval. For example, if the Henge Arches are not bedded into the sediments such that the base is located on an effective flat surface, then differential loadings will be placed upon various sections of the overall structure, which may promote premature failure….”
The Applicant’s response to this analysis was as follows – Exhibit 7 p. 34:
“With module bottom contact at any high point, but without load on the high point, the module would be checked for level…
If bottom leveling was needed the magic wands would be put into action to quickly ensure that the seafloor was parallel to the level module bottom…
When parallelity was attained the module would be lowered to the fully loaded seafloor position…”
The Minister also refers to findings in the Golder Report and to the provisions of the UNEP Guidelines.
First, with respect to the UNEP Guidelines, the following information is provided under the heading “Location” – 3.2.3:
“The placement of any artificial reef should only be undertaken once there is a thorough understanding of the local environment, including waves and currents, sediment transport, the seabed, water and sediment quality, biological communities, and other beneficial uses. Such environmental information will assist in determining whether the reef is likely to meet its objectives since the local conditions i) will potentially affect the stability of the reef; and ii) should provide a suitable environment for target species. The information also provides a baseline against which to measure potential impacts caused by the reef on the environment and/or other beneficial.”
The Golder Report dealt with the structural integrity of the proposed constructions as well as structural stability, including load distribution in the marine environment of the modules (geotechnical considerations). With respect to the issue of structural stability, the following conclusion was reached – Exhibit 1 T26 p. 586:
“Golder has not been able to consider if the applicant’s submission is sufficient for the intended purposes of at least meeting the minimum technical requirements under the UNEP guideline, as it is incomplete. Golder could not identify any verification of geotechnical bearing capacity of the soils to deal with the loads. Golder therefore considers the aspects of the application which consider the structural stability which have been provided are not presented with sufficient technical detail..,”
The Applicant provided a two page response to the above findings in the Golder Report in its response to the Statement of Facts, Issues and Contentions of the Respondent – Exhibit 7 pp. 36 – 37. The response, unfortunately, fails to deal with the issues relating to the sea bed, but instead is focused on the assembly, movement and installation of the modules. The only directly relevant portion of this aspect of the Applicant’s reply is set out above in [95].
Next, the Minister summarised the previous submissions of the Applicant as follows – Exhibit 6 para 60 pp. 200 – 201:
(a)the Applicant requests a “trial deployment of the first module to prove its onsite stability”;
(b)the Applicant poses a number of questions about what testing would suffice, but then raises concerns about the costs of such testing;
(c)the Applicant poses questions as to whether a “questionable load bearing site” would be considered having regard to Mr JB’s experience as a scuba diver and with alluvial sediments via his offshore drilling company; and
(d)the Applicant asserts that it has “no doubt whatsoever about module stability on the site” and “the simple answer with the lowest cost is to have the first module deployment as a trial.”
First, the Minister contends that the Applicant’s responses amount to bare assertions that fail to answer legitimate concerns surrounding the structural stability and integrity of the proposed artificial reef placement as raised both by Mr Polglaze in his Report and in the Golder Report – Exhibit 6 para 61 p. 201.
The Applicant did provide an updated reply. With respect to the contention in (a) above, the following response was provided – Exhibit 7 p. 39:
“The applicant has little in the way of tolerance for statements such as ‘depth of sediment’ that do not reply when the source of the statement is questioned, and basically has no verifiable foundation on how the view was formed. Yet it is repeated, and repeated.”
With respect to (b) the following response was given – Exhibit 7 p. 39:
“So, as there was no explanatory reason or source for the ‘depth of sediment’ statement, so the possible options that the Applicant was very aware of were raised, as they were methods of finding an answer, and the magnitude of test numbers, area and depth of sampling were mentioned. If that is listed by some as rhetorical, so be it. There still was no further reply suggesting an option, other than repeating the ‘depth of sediment’ statement.
It had already been addressed by PGM and the Applicant for a trial module deployment, but no, the department would not do that, but they have approved a trial deployment for the recent GCCC reef, not for a single module but for nine of them at once. Do not try to convince any thinking person of the fact that was not to some degree of a cost concerning beneficial exercise for the reef contractor.”
Next, with respect to (c) the Applicant gave this response – Exhibit 7 p.39:
“The Applicant knew the seafloor was stable, and as it was stable who cares what the sediment depth is, its stable. Additionally, within the very substantial GCCC site analysis that the Applicant gained as a previous tenderer, during the Council meeting of the 19 August 2015 there was no mention of unstable bottom movement to be concerned about.”
Moving to the Minister’s submission in Exhibit 6 para 61 p. 201 set out above, the Applicant responded as follows – Exhibit 7 p. 40:
“The above commentary by the department is of little relevance compared to the flooded coal tailings valley that needed to be drilled in central Queensland by BHP. The RD of the material was only 1.4 x 60 cm deep, too thick to put a boat on and to [sic] thin to walk on or put a vehicle on. Also, a sample correlation of 98% was required, which was basically unheard of at the time. For 9 months, 12 drilling companies, six Australian and six International were evaluated and deemed not capable for the job. Following a demonstration on the mine site by the Applicant’s drilling company, the largest mining company in the world BHP, keenly appreciated the demonstrated ‘independent expert evidence’ and signed us up for the contract.”
As can be seen from the extensive quotation of the Applicant’s responses, they constitute commentary or assertions rather than a dispassionate and technical response to legitimate technical concerns born of the strict requirements of the both the Australian regulatory regime but also the overarching requirements of the London Protocol.
As was discussed earlier, Article 3.1 of the London Protocol requires Contracting Parties to apply a “precautionary approach” to environmental protection. There is a very helpful discussion of the application of the precautionary approach to environmental legislation in the decision of Preston CJ of the New South Wales Land and Environment Court in Telstra Corporation v Hornsby Shire Council [2006] NSWLEC 133 at [125] – [183]. Suffice it to say the precautionary approach emphasises caution particularly when what is being proposed is novel and scientific knowledge on the proposal is not advanced. It focuses on decision-makers anticipating harm before it occurs and requires Proponents of novel proposals to meaningfully engage with regulatory authorities by the provision of technical evidence that addresses legitimate concerns of potential environmental and other damage.
As will be further explained below, the approach of the Applicant when provided with either questions or expert reports is to engage in a debate and to revert to entrenched positions. No doubt it would be very frustrating for a Proponent to be required to provide what may seem at times burdensome information or material which it does not think is either necessary or relevant. However, that approach is not only not helpful for the Proponent but renders it difficult or impossible for a decision-maker to properly carry out their responsibilities when evaluating a proposal.
Second, the Minister disputes that Mr JB’s experience as a scuba diver and operator of an offshore drilling company places him in a position to give evidence, let alone independent expert evidence, as to the suitability of the site of the proposed artificial reef placement – Exhibit 6 para 61 p. 201.
The Tribunal agrees with the submission of the Minister. The Tribunal has no reason to doubt that Mr JB is an experienced scuba diver and also a person with an extensive career in drilling and construction. The Tribunal found Mr JB to be a very enthusiastic witness who clearly is personally driven and committed to achieving a world class scuba diving attraction by means of a novel artificial reef. However, Mr JB’s experience and enthusiasm do not equip him to fill the role of an independent expert, and this is so for two reasons. The first is that the Tribunal is not satisfied that Mr JB has the professional qualifications and experience of Mr Polglaze or the authors of the Golder Report. Second, Mr JB is not a dispassionate and independent “expert” but rather a Proponent. He does not bring to the process the independence of mind that is required. Mr JB’s passionate defence of the proposed artificial reef placement is testament to the fact that he is an advocate and not a dispassionate observer.

Third, the Minister contends that the available evidence does not provide a sufficient basis for the Tribunal to conclude that the artificial reef would remain stable in its proposed location – Exhibit 6 para 62 p. 201.
The Minister refers to the Golder Report, and, in particular, the fact that the proposed placement is in a region of active tropical cyclones which will expose the modules to the effect of high waves, current and storm surge. The authors of the Golder Report also observed that the proposed placement was not supported by a meteorological and oceanographic (metocean) study report or any analysis of the effect of climate change. The eight claimed deficiencies in the application, as articulated in the Golder Report, have been set out previously and are relied upon by the Minister – Exhibit 6 para 64 pp. 201 – 202.
The Applicant’s response to the Minister’s contentions in Exhibit 6 para 62 p. 201 was as follows – Exhibit 7 p. 40:
“So here we have the department’s so-called evidence, it consists of the approval of a reef application that totally fails the London Protocol on the stability requirement because the modules all float, while just held by a flexible line to a concrete block and are obviously not stable. In addition to that on the floating cylindrical centre, the modules have angled circular plates with edged perimeters attached. Because of the overall surface area of each module, even the smallest of water movement will adversely affect the stability of the modules….
The different handling to that of the Dive Henge Application and the one above is blatantly disproportionate from the department…”
(emphasis in the original)
As will be seen, the Applicant’s response to the Minister’s contentions diverts to another artificial reef placement approval, about which the Tribunal has no information apart from the contentions of the Applicant. The Applicant diverts its attention from addressing the ostensibly legitimate concerns of the Minister, to another application which is of no interest or relevance to the Tribunal.
Next, the Minister submits that the Applicant challenges the Golder Report on the basis that the Department did not provide Computational Fluid Dynamics (CFD) calculations supplied by the Applicant to Golder Associates. The Minister also notes that there were two sets of CFD calculations provided – Exhibit 6 para 65 p. 202. In response, the Minister makes the following submission – Exhibit 6 para 66:
“The applicant’s assertion is not correct. The Department accepts that the material entitled ‘Computational Fluid Dynamics Analysis – Initial modules’ attached to the email from the applicant to the Department dated 26 August 2021…was not provided to the authors of the Golder Report (there being no statutory obligation to do so), but the material entitled ‘Computational Fluid Dynamics Analysis Folder 2 of Modules’ (undated but received by the Department on 24 September 2018) was provided to them. It is for this reason that the Golder Report says that the designs in the CFD do not resemble the three modules being reviewed. It is, however, instructive that the Golder Report identified general flaws or deficiencies in the CFD calculations provided by the applicant, such as the failure to provide the basis or bases for figures or measurements used. Those flaws are equally apparent in the material entitled “CFD – Initial modules’. Further, as the Golder Report illustrates, so far as the structural and positional stability of the modules was concerned, the application suffered from deficiencies other than those concerning the CFD analysis.”
The Minister is correct in submitting that there is no statutory obligation to provide to a contracted independent expert all the material that the Department has been provided. In this matter, there was no statutory or other legal obligation to provide to Golder Associates the CFD calculations provided by the Applicant on 26 August 2021. However, that is not the issue. The Minister relies on the Golder Report, yet that Report is only as good as the material provided to Golder Associates. In this case, the CFD calculations were prepared in (circa) 2018, and as the authors of the Golder Report noted – Exhibit 1 T26 p. 591:
“The proponent has submitted CFD calculations of forces on several module designs for an estimated design current speed of 600 mm/sec (0.6 m/s or 1.2 knots). However, none of the designs in the CFD report resemble the three reef modules…”
Clearly the weight that can be placed on this aspect of the Golder Report is necessarily compromised by the provision to the authors of that Report of non-current information. It may be, as the Minister submits, that nothing turns on this omission because the concerns raised by Golder Associates applied equally to the 2021 CFD calculations. However, the concerns raised by the Applicant about the selective provision of information to Golder Associates are understandable and have some merit – see Exhibit 7 pp. 43 – 44.
The Minister, however, goes on to submit that the Tribunal has before it the CFD calculations. The Tribunal has been provided with both the 2018 CFD calculations – Exhibit 1 T11 – 13 pp. 295 – 340 and the 2021 calculations – Exhibit 1 T31 – T32 pp. 713 – 738.
First, the Minister submits that it is not clear who prepared the CFD calculations or their qualifications in fluid dynamics. It was further submitted that the documentation suggests that the analysis was the work of Mr JB, but that Mr JB does not profess to hold relevant experience or experience in fluid dynamics – Exhibit 6 para 67.1 p 202.
In response, the Applicant provided the following information – Exhibit 7 p. 45:
“The applicant started in Inventor 3D CAD design around 1986, as an expansion of his engineering training at RMIT. Following the request by the department for stability analysis of the module designs in current the Applicant set about getting into Autodesk CFD which happened around mid-2017. Training was on an as required basis directly computer linked with a personal training specialist within Autodesk in the USA. It was an excellent one on one basis. So yes, the Applicant does hold a reasonable level of expertise in CFD, and yes, all the CFD analyses content (Initial Folder and Folder 2) were done personally by the Applicant.”
It is not contested, then, that the CFD calculations provided by the Applicant to the Department were prepared by Mr JB and not an independent expert. It would also appear that Mr JB’s expertise in CFD analysis occurred as secondary to his RMIT engineering studies.
Next, the Minister submits that it was not made clear what information was provided to the person(s) who conducted the fluid dynamics analysis and what, if any, assumptions they were asked to make – Exhibit 6 para 67.2 p. 202.
The Applicant’s response to this submission starts as follows – Exhibit 7 p. 45:
“All modules have been designed by the applicant and produced in Inventor 3D. All modules were then modified to operate under the CFD program more efficiently…”
In short, Mr JB proceeded on the basis of the information before him, and which was disclosed to the Department, and he has outlined in his response how he proceeded with undertaking the analysis.
Third, the Minister contends that there is little explanation of the source(s) of much of the data included in that analysis or what calculations were made – Exhibit 6 para 67.3 p 202.
The Applicant’s response, in part, was as follows – Exhibit 7 p. 46:
“Every explanation of the data is in the analysis, maybe reading them would be a good start.”
Fourth, the Minister queries the relevance of the repeated reference to “Amontons’s Laws of Static Friction” in the CFD calculations – Exhibit 6 para 67.4 p. 203.
The Applicant’s response was as follows – Exhibit 7 p. 46:
“One cannot explain it much better than the statement. ‘Amontons’s Laws of Static Friction’. It verifies the basis of the analysis.”
This exchange provides a good example of the problem faced by the Tribunal. The Minister raised a legitimate question. It being, what was the relevance of Amontons’s Laws of Static Friction? It should be noted that Guillaume Amontons was a famous French physicist and amongst other works, published in 1699 his rediscovery of the laws of friction first propounded by Leonardo da Vinci. Amontons expounded three laws of friction, which primarily apply to dry friction.
The Minister’s question was responded to by a non-response. Namely, that the Amontons’s Laws of Static Friction verify the basis of the analysis. That response is as Delphic and unhelpful to the Tribunal as it would have been to the Minister.
In a similar vein, the Minister referred to the Applicant’s reliance on material without indicating how that material related to the specific site of the proposed artificial reef placement – Exhibit 6 para 68 p. 203.
The Applicant’s response to this submission was as follows – Exhibit 7 p. 46:
“The very in-depth document (no pun intended) being ‘Essentials of Oceanography’ has a very significant and direct involvement on the Dive Henge stability. The Applicant would have no doubt that the Tribunal would instantly recognise the very significant importance of sea water.”
(emphasis in the original)
The Tribunal does recognise the very significant importance of sea water, especially as the proposed artificial reef is proposed to be located on the seabed. However, the Applicant again fails to engage with the Minister and give a direct and helpful response to a straightforward question.
What may be obvious to Mr JB is less obvious to others, and in order for the Applicant to satisfy the legitimate concerns and answer the legitimate questions of the Minister, a direct response rather than a debate is required.
To sum up, the Minister has raised a number of legitimate concerns and questions about the structural integrity and stability of the proposed artificial reef, but the Applicant’s responses are generally in the form of counter-submissions or debates rather than a direct engagement. Further, it is clear that the Applicant has not obtained the services of an independent expert and relies, primarily, on the skills and experience of Mr JB. The Tribunal has no reason to doubt that Mr JB is an honest and enthusiastic proponent of the proposed artificial reef placement and has had decades of experience both in scuba diving and in marine activities. The Tribunal casts no aspersions either on the integrity, honesty or skills of Mr JB. However, the artificial reef proposal is necessarily weakened by the failure of the Applicant to provide independent expert verification of a number of the technical aspects of the proposal.
Assembly
The Minister submits that the Tribunal cannot be satisfied that the artificial reef would not result in hazards to human health by reason of the use of divers during its installation – Exhibit 6 para 69 p. 203.
In support of this submission, the Minister relies on the following analysis in the Golder Report – Exhibit 6 para 70 p. 203 – Exhibit 1 T26 p. 584:
“Golder understands that divers will be used throughout the installation. The submission contains no details around the requirements for training, competence and fitness of the persons executing the construction diving. This is regulated in Queensland by the model taken from Safe Work Australia under Part 4.8 of the Model WHS regulations. In Queensland, construction diving is considered a High Risk Activity (Occupational Diving Work – Code of Practice 2005. Workplace Health and Safety Queensland). A person conducting a business or undertaking at a workplace where high risk diving work is carried out must ensure that the following are in accordance with AS/NZS 2299.1:2015 (Occupational diving operations – Standard operational practice). We have therefore not been able to assess whether there’s a dive plan that guarantees the safety of the diving construction workers.”
In response, the Applicant resubmitted a previous response which is as follows – Exhibit 6 para 71, Exhibit 7 p. 47:
“Dive Henge will not be training divers for our deployment operations. Divers will be existing qualified, Contract Commercial Divers.
There will be extraordinarily little of our module deployment that will not be done remotely.
No diver will even need to be in the water once decent [sic] is due to start. Divers will not even enter the water until module bottom contact is attained. It should also be noted that for our deployment system ‘module bottom contact’ does not mean total load bearing.
Contact, level, and virtually no loading on the bottom. Even with Marine Cholula module at 6,600 tonnes. We will have that degree of control. All underwater operations will be performed with real time video from the underwater drones. [equipment] In conjunction with that, any commercial diver will be equipped with our direct voice contact masks [equipment] with the surface vessel. These masks are electronically linked and not tethered. Safety 1^st, 2^nd, and 3^rd.”
In addition, the Applicant made this submission – Exhibit 7 p. 48:
“There was one significant comment that was not included in the above text because the Applicant was replying to Golder’s question. Golder would certainly be aware that it would be the responsibility of the contract diver to consider ‘the Plan’, not the Applicant that chooses the contract diver. By the mere fact that the text was a direct copy of the Applicants reply only verifies that the department was not aware that the commercial contract diver controlled ‘the Plan’”.
(emphasis in the original)
The Minister submits that while the Applicant purports to emphasise safety, no diving safety plan addressing the training and competence of divers or emergency plan has been submitted by the Applicant – Exhibit 6 para 72 p. 204.
The Applicant was put on notice about the concerns outlined in the Golder Report, yet in its response to the Statement of Facts, Issues and Contentions of the Respondent, the Applicant has repeated word for word its previous position, which the Minister described as containing “bare assertion” – Exhibit 6 para 71 p. 203. In addition, the Applicant submits that “it would be the responsibility of the contract diver to consider ‘the Plan’”. With due respect, this assertion does not address the key issue, namely the training of the divers and the safety risk they face. By suggesting that risk can be, in effect, subcontracted out to the divers, only serves to highlight the legitimate concerns of the Minister.
It is clear from the Applicant’s submission that it will not be training divers for the proposed deployment operations. In these circumstances what training the divers will have undertaken is unknown to the Tribunal. Whether such persons would have the particular skills required for the unique artificial reef placement proposed by the Applicant is also not clear.
This uncertain, and potentially unsatisfactory, state of affairs is exacerbated by the absence of any safety plan. All the Tribunal has before it is a statement of good intentions. Having regard to the unique and potentially dangerous nature of the proposed artificial reef placement the Tribunal is not satisfied that the installation of the proposed artificial reef would not result in hazards to human health.
The inadequacies with the information provided by the Applicant were summarised by the Delegate of the Minister – Exhibit 1 T3 pp. 30 – 31.
The Tribunal has before it the following response by the Applicant to the concerns expressed by the Minister in Exhibit 6 para 62 p. 199 that there is insufficient evidence the artificial reef would remain stable in its proposed location – Exhibit 7 pp. 48 – 49:
“The Applicants attitude to safety is…. Safety 1^st, 2^nd, and 3^rd. Let’s make things perfectly clear, if the Applicant wanted to, the largest of our modules currently masses out at 6,600 tonne, that module could be lowered to the bottom and raised to the surface 5 times in a day if it was warranted. (Not sure why one would want to do that, but we could) All controlled from the surface, within 200mm of the intended position on the bottom in 38m of water. Nobody would need to be in the water at all during such a process.
No detail on who might be the commercial diving contractors, well the Applicant first choice would probably be the friend that first got me started in Dive Reef Design…Haven’t seen [him] for quite a while though. Definitely, no training necessary.”
(emphasis in the original)
It is unfortunate that the Applicant has not availed itself of the opportunity presented by the application for review to meaningfully engage and present to the Tribunal a considered response to the legitimate concerns outlined in both the Golder Report as well as the Delegate’s reasons.
Harm to living resources and marine ecosystems
The Minister submits that there is insufficient information before the Tribunal for it to be satisfied that the proposed artificial reef would not release contaminants and cause harm to living resources and marine ecosystems – Exhibit 6 para 73 p. 204.
The Applicant states in its application that the materials used for the construction of the artificial reef modules will be virgin concrete, reinforced with inert synthetic plastic fibres that will not deteriorate in sea water – Exhibit 6 para 74 p. 204, Exhibit 7 p. 49.
The Minister sets out at length details of the proposed modules, and estimates that in respect of the 16 modules the artificial reef would use approximately 66,412.5 to 85,387.5 kilograms of monofilament and, at least, 16,150 kilograms of PVC – Exhibit 6 para 76 p. 204. This, in aggregate, it is submitted, amounts to 101,537.5 kilograms of plastic entering the marine environment – Exhibit 6 paras 75 – 76 p. 204.
The Minister drew the Tribunal’s attention to the concerns expressed in the PGM Report about the use of plastics in the proposal.
In that Report it was noted that the primary nominated materials for the construction of the artificial reef were concrete and steel, which are essentially environmentally inert and therefore present minimal tangible threat of pollution to the marine environment – Exhibit 1 T22 p. 499.
Mr Polglaze, the author of the PGM Report, went on to observe, that assuming proper fabrication, and with effective placement and use of appropriate materials, there would (it could be assumed) be minimal likelihood of generating any substantive debris for a period of approximately 15 years – Exhibit 1 T22 p. 499.
Mr Polglaze opined that in the longer term the modules would likely experience structural failure and collapse, however, “this will mainly result in the generation of localised concrete, and possibly also steel, remnants, largely immobile and unlikely to occasion any substantive adverse effects upon the environment” – Exhibit 1 T22 p. 499.
Mr Polglaze then opined that the fibre reinforcing the concrete is considered “unlikely to either be released from the concrete matrix or to materially deteriorate in any appreciable manner. This assessment is also predicated on the bracing links and column extensions depicted in the Henge Arches (Figure 7) being suitably strong, fit-for-purpose and environmentally inert, noting that the Proponent has provided no information on either their structure or composition” – Exhibit 1 T22 p. 499.
It was observed that if the PVC pipe sections were fixed in concrete they would be physically immobile, however if they extend beyond the boundaries of the concrete blocks, then they would be vulnerable to mechanical damage, such as from diver impacts or boat anchor gear. If exposed, pieces of PVC would invariably break away. However, as Mr Polglaze observed “most of this resultant debris would most probably end up in the sediments in the immediate vicinity of origin, some elements may be small enough to be mobilised by water movements or ingested by marine animals. Note however, that the time scales of such breakdown and environmental migration may be anticipated to be long, possibly measured in decades” – Exhibit 1 T22 p. 499.

A response in like manner was provided in Exhibit 7 – see p. 56.
In addition, Mr Polglaze was critical of the nature of the “consultation” that occurred. He opined as follows – Exhibit 1 T22 p.494:
“What limited consultation that Proponent reports as having been undertaken with any of these entities has been unorthodox; rather than informing of the proposal and seeking comment, the material submitted in support of the AfARP indicates that the Proponent sought to elicit support of the activity, almost in the form of a poll. This is not the same as inviting comment. The efforts of consultation as reported by the Proponent have also been desultory and superficial…”
The Tribunal appreciates that for a period from late March until May 2020 with COVID-19 restrictions in place there would have been considerable difficulties in being able to consult with affected parties. Mr JB made the following submission – Exhibit 7 p. 56:
“Let’s consider the whole scenario to the timing. It was in the middle of the Covid disruption. The trawlers were mostly totally closed. Some had their doors open but roped off with No Entry signs displayed. There was only one trawler man that was working outside at stern of the trawler…”
It is also the case that the Applicant could have made contact with parties remotely by use of emails, Skype, Microsoft Teams or simply posting correspondence or using the telephone. Further, it would appear that the consultation that was attempted was physically visiting trawlers rather than attempting to make contact with peak industry bodies and recreational associations. The Tribunal does not accept that COVID-19 restrictions for a limited time period would have acted as bar on the Applicant consulting with affected parties.
However, it is also clear that the “consultation” the Applicant engaged in was indeed unorthodox and designed, it would appear, to gain support for the proposed artificial reef rather than to disseminate information and obtain a considered response. The Applicant in response to criticisms of the level and nature of consultation undertaken, simply retorts by expounding the suggested advantages that will flow from the artificial reef placement. In short, the Applicant’s response to criticisms of not properly consulting legitimate stakeholders, is to, in effect, claim that there is no need to consult with them as they would be supportive of the proposal having regard to the claimed benefits that would flow from the artificial reef placement.
The importance of public consultation is made clear in the UNEP Guidelines. In that part of the UNEP Guidelines dealing with the regulatory framework, the following guidance is given – para 2.3.3, p. 21:
“Public consultation and review should be an integral component of the assessment process, with well-publicised opportunities for involvement of those stakeholders likely to be directly affected by the development…”
The lack of formal consultation with fishing interests is particularly concerning. Even if, as the Applicant claims, the proposed artificial reef placement will result in an increase in fish numbers, that itself would be a matter that should be properly discussed with commercial fishing interests.
At the Hearing, Mr Kaplan made the following submissions – Tr. 26.10.2022 pp. 57 – 58:
“…Over the page at 492, under the heading “Consultation”, it is recorded that the applicant provided no evidence as to show that it has undertaken anything other than minimal consultation - informal and nonstructured consultation - in relation to the proposed placement. Once again, that was essentially conceded in oral evidence today vis a vis consultation with commercial fisheries. Mr Polglaze notes that the applicant claimed to consult with indigenous groups - this is at page 493’s penultimate paragraph - but not only were there the details of such consultation rudimentary, it concerned an earlier planned site for the artificial reef according to Mr Polglaze.
He notes that insofar as the applicant did consult with others, he didn’t inform them of the proposal and seek comment, but rather - and this is over the page at 494 in the first paragraph - thought to elicit support of the activity almost in the form of a poll. So far as commercial fishing interests are concerned, the applicant’s evidence included that he didn’t have to consult with such interests because if his application were granted, the area in question would be a diving site where fishing would be prohibited. One sees that in the italicised passages at page 494. Deputy President, that obviously misses the point. Where fishing would be otherwise permitted in the area, the placement of an artificial reef would unquestionably have an adverse impact on such activities; relevantly, the placement of so-called Code A dive flags. The Code A dive flags were not there; that is, if the artificial reef were not there, then those commercial fishing interests would be pursued in that area. Indeed, Mr [JB] himself said that the area in question - this was today in oral evidence - the area in question is the busiest seaway.
If one goes to page 498, you will see in the first paragraph, Mr Polglaze opines that the nominated location is understood to be coincident with a number of commercial fisheries that are undertaken in the wider area, and the degree of consultation with those interests was superficial. We say that the interference with commercial fishing is alone a reason to find that the placement of the proposed artificial reef would be contrary to the aims of the London Protocol. It plainly comes within the definition of pollution. It is a hindrance to marine activities, and indeed fishing is mentioned expressly in the definition of pollution…”
The Tribunal agrees with this submission of Mr Kaplan. As the Applicant noted in its submissions – Exhibit 7 p. 55:
“…the [Gold Coast] seaway is possibly the busiest of Queensland waterways.”
Having regard to the multiple uses of the Gold Coast Waterway and number of such uses, it is essential that a proposal of the type before the Tribunal be subject to a vigorous public consultation process and that the legitimate uses of the waters impacted by the proposal be subject to due consideration. That consideration can only be properly given by a decision-maker if the interests affected (either beneficially or deleteriously) are identified and the stakeholders are actively involved in the assessment process. Assuming that those stakeholders would support the proposal or dismissing the proposition that they will be deleteriously affected, or indeed, suggesting that there is no need to consult them at all, is not satisfactory and does not allow a decision-maker to give proper and due weight to the obligations imposed by the London Protocol.
Accordingly, the material before the Tribunal does not allow it to be satisfied that the proposed artificial reef placement would not be a hindrance to marine activities and legitimate uses of the sea.
Impairment of quality for use of seawater
The Minister submits that it is very likely, if not inevitable, that the ocean will be polluted by degradation in the plastic in the proposed artificial reef. That being so, the Minister, then submits that the Tribunal cannot be satisfied that the proposed placement would not impair the quality for use of seawater – Exhibit 6 para 93 p. 207.
The Minister also drew the Tribunal’s attention to the reviewable decision wherein the Delegate noted that the use of PVC and concrete reinforced with polypropylene fibres in the proposed modules is inconsistent with – Exhibit 1 T3 para 95 p. 41:
(a)Commonwealth Government policy for the long-term prevention of the incidence of marine debris as stated in the Department’s Threat Abatement Plan for the impacts of marine debris on the vertebrate wildlife of Australia’s coasts and oceans (2018) and the Commonwealth Government’s National Plastics Plan (2021); and
(b)the Department’s interim policy on the use of plastics in artificial reefs.
The Applicant “totally disagrees with 93”, referred the Tribunal to earlier comments and then made the following observations – Exhibit 7 p. 58:
“Just a little snippet.
The GCCC Wonder Reef has plastic in the concrete moorings.
Both the Department and PGM approved that.”
(emphasis in the original)
Having regard to the material presented, the Tribunal agrees with the submissions of the Minister.
Is the proposed artificial reef placement contrary to the aims of the London Protocol?
For the reasons given above, the Tribunal is satisfied, and finds, that the proposed artificial reef placement is contrary to the aims of the London Protocol and therefore is not an artificial reef placement as defined in s 4(1) of the Act.
Exercise of discretion
If the Tribunal is in error, and the proposed artificial reef placement is not contrary to the London Protocol, consideration needs to be given pursuant to s 19(1) whether to grant, or not to grant, a permit.
The Minister submits that the Tribunal should exercise the discretion in s 19(1) to refuse the grant of a permit for the reasons given by the Delegate in the reviewable decision. The Delegate outlined two broad concerns – Exhibit 1 T3 pp. 43 – 44:
(a)concerns about the adequacy of the Applicant’s proposed monitoring program; and
(b)concerns about the Applicant’s capacity to undertake long-term management (including monitoring) of the proposed artificial reef, and to decommission the artificial reef in the future, if this was required.
First, with respect to the proposed monitoring program, the Delegate referred to the analysis of Mr Polglaze in the PGM Report at Exhibit 1 T22 pp. 501 – 504. The Delegate noted that other than an undertaking to submit annual reports, there was no apparent structure to the monitoring with respect to routine scheduling or in response to specific events such as a major storm event. Further, the proposed monitoring programs were generally bereft of detail beyond a generic commitment to video surveillance – Exhibit 1 T3 para 102, p. 43.
The PGM Report also noted other nominated methods of monitoring included the use of benthic grab samples and examination of benthic feeding plates. The grab samples are proposed to be used to establish heavy metal concentrations in sediments, with analytes intended to be iron, copper, chromium, zinc, lead, nickel, manganese, cobalt and aluminium. The PGM Report contains the following statement – Exhibit 1 T22 p. 503:
“The objective of this proposed monitoring program is not clear, as the artificial reef modules as proposed, with the possible exception of iron, should not present as any tangible source of the metals proposed to be sampled and analysed.”
Of more concern to the Tribunal is the following analysis by Mr Polglaze of reliance on video monitoring – Exhibit 1 T22 p. 503:
“The apparent primary reliance upon video for most aspects of the proposed monitoring program is considered unrealistic and unlikely to generate reliable technically robust or substantive data. Furthermore, many of the proposed monitoring activities cannot be deemed as essential.”
Second, the Delegate stated that the Department had concerns about the Applicant’s capacity to undertake long-term management of the proposed artificial reef, and to decommission it, if required in the future – Exhibit 1 T3 para 104 p. 43.
Mr Polglaze opined in the PGM Report – Exhibit 1 T22 p. 501:
“The Proponent states that there is a proposed long-term management plan for the artificial reef, but what has been offered is limited in both scope and detail.”
The need for a robust long-term management plan is plainly made out by the Applicant with its own estimate of the life-span of the proposed artificial reef. The following comments are found in the PGM Report – Exhibit 1 T22 p. 491:
“The Proponent states that the artificial reef is expected to have an effective life ‘measured in centuries not a few decades’. If this prediction is sound, then it should be assumed that the structures would remain operational for several decades. The predicted life is unable to be assessed, however, noting the absence of complete and comprehensive information concerning the structures and their composition as submitted by the Proponent.”
The PGM Report sets out at some length the suggested deficiencies in long-term management arrangements for the proposed artificial reef – Exhibit 1 T22 pp. 501 – 504.
The Report noted, for example, that it is established practice in Australia that artificial reefs placed for the purposes of diving or fishing enhancement are usually vested in some government agency. This is the case as there is a level of confidence in durability and longevity of the responsible management institution together with access to financial resources necessary to fulfil its ongoing obligations – Exhibit 1 T22 p. 504. There is, of course, no bar on a private entity operating an artificial reef, however in such circumstances it would be assumed that the proponent would be able to satisfy a decision-maker that:
(a)the entity will remain in a position to undertake long-term management by reference to its corporate structure;
(b)has a well-constructed and durable management plan; and
(c)has the financial and operational capacity to give effect to the long-term management plan.
In this regard, the Delegate opined that there was no clear or reliable indication of how ongoing management (including monitoring) would be funded, nor how management would be maintained in the event that Mr JB or the Applicant would be unable to continue participation – Exhibit 1 T3 para 109 p. 44.
The Delegate also referred to Annex 8 of the UNEP Guidelines, which deals with the dismantling of artificial reefs. The opening paragraph to Annex 8 states as follows:
“When monitoring studies indicate that an artificial reef is not functioning as intended – or not to the extent intended – or that there are negative impacts that were not identified in the environmental impact evaluation, there are two options which should be investigated: i) the reef should be modified so as to rectify the situation; or ii) if modification is not possible, or has failed, the competent authority may take a decision, in the public interest, to have the reef structure dismantled and removed…”
The Delegate noted that the Applicant canvassed decommissioning options in its application, and stated that, if necessary, the modules could be raised and transferred to a deeper site for ocean disposal. No information was given about how this would be achieved – Exhibit 1 T3 para 105 p. 43.
This necessarily leads to the following exchange between the Tribunal and Mr JB about the ownership and capital of the Applicant – Tr. 26.10.2022 pp. 24 – 25:
“DEPUTY PRESIDENT: Thank you. And Mr [JB], are you a director of [the Applicant]?
MR [JB]: Yes.
DEPUTY PRESIDENT: Okay. How long have you been a director of [the Applicant]?
MR [JB]: Since it was first formed in - I think it was July 2014 - no, earlier than that. 2015.
DEPUTY PRESIDENT: Okay. Can you give us some background to the other directors of your company?
MR [JB]: That’s it. I’m it.
DEPUTY PRESIDENT: You’re the sole director?
MR [JB]: I’m the sole director, managing director. That’s me.
DEPUTY PRESIDENT: Who is the secretary of the company?
MR [JB]: That’s me. I’m it. Everything to do with the company, I’m it.
DEPUTY PRESIDENT: And what is the issued capital of [the Applicant]? Approximately?
MR [JB]: Well, how do you want to talk about the capital? Is it, you’re talking about what I’ve put into it? Are you talking about the time I’ve put into it? You’re talking about the physical expense which I’ve actually outlined for this? Is it – what do you want?
DEPUTY PRESIDENT: Okay, let me ask you another question that might be more helpful. Is [the Applicant] a private company or is it issued on the stock exchange?
MR [JB]: No, it’s a private company.
DEPUTY PRESIDENT: Okay. And does it have very many shareholders to the best of your knowledge?
MR [JB]: To the best of my knowledge, it is me. I am 100 per cent. Or should I say, my – it’s in - that’s probably not correct, actually. I mean, when I say that, is that I’m still - the private company or the former company or the base company is Innovative Developments Pty Ltd. Innovative Developments Pty owns [the Applicant], one eighth. But the thing is, I own Innovative Developments 100 per cent. So take it how you like. Why I’ve done it like this is so that - like this is a huge project. Have I got the funds to be able to do that, you know, to bring that all about as it stands? And, you know, when I’m looking at another 50 per cent of modules of what we’ve got there now? Np. But do I have a lot of people that are very, very interested in this? My very word, I do. So that’s what we’re talking about. So what my idea and why I’ve got the company structured like that, I want it to be as clean as possible so when this kicks off that there is no residual crud associated with it, so to speak. But yes. That’s just the process.”
In his summing up, Mr Kaplan made the following submissions based on the above testimony of Mr JB – Tr. 26.10.2022 pp. 60 – 61:
“There is further criticism at page 503 in the second paragraph, in the methods of monitoring the proposed artificial reef put forward by the applicant. They were said to be unrealistic and unlikely to generate reliable technically robust or substantive data. There was also no clear or reliable indication of how ongoing management would be funded or perpetuated in the event that Mr [JB] or the applicant is unlikely to continue. Now, pausing there, that is an important point, Deputy President, and it ties in with the evidence that Mr [JB] gave in response to some of the early questions posed by you in examination-in-chief, that is: What is the share capital of the company; who are the directors of the company; who are the shareholders in the company? The applicant’s concession in examination-in-chief where he said, “Have I got the funds to do it as it stands? No.” If there are no funds to carry out the work, it is then by the short step to take to say that at least on the evidence before the tribunal, there are no funds to commit to ongoing management and monitoring of the proposed reef.”
It is clear from the testimony of Mr JB, that the Applicant is the corporate manifestation of himself. The Applicant is not comprised of a number of shareholders or independent Directors. It has, it would appear, limited capital. Based on Mr JB’s testimony, it does not have the funds to carry out the proposed reef placement, let alone ongoing management and monitoring. In the event that Mr JB was unable to carry on management of the Applicant, there is no evidence before the Tribunal of any transition strategy to a new corporate management. In short, the Applicant is a corporate shell filled only with the personal enthusiasm and drive of Mr JB.
The Applicant’s response to the Minister’s submissions is set out in Exhibit 7 at pp. 58 – 63. The Applicant’s response does not deal with substance of the Minister’s submissions and, with due respect, does not help the Tribunal.
Having regard to the particular circumstances of the Applicant outlined above, the Tribunal agrees with the Delegate, that imposing permit conditions with respect to monitoring and decommissioning would satisfactorily ensure adequate management in the future – Exhibit 1 T3 para 110 p. 44.
Further, Mr Polglaze whilst opining that the material submitted by the Proponent lacked the level of detail and vigour sufficient for the assessment to be approved, nevertheless outlined various possible conditions that could be imposed to rectify some of those deficiencies.
Leaving aside the Tribunal’s initial finding that the proposal, in its current form, is contrary to the aims of the London Protocol, the cumulative weight of the problems with the application outlined above are of such a magnitude that the Tribunal is not satisfied that the imposition of conditions would effectively remedy those problems. The imposition of conditions is predicated on a fundamental assumption, namely that an applicant has the ability and capacity to adhere to them. In this matter the Applicant is the corporate manifestation of Mr JB. The Tribunal has no reason to doubt the honesty and bona fides of Mr JB, however, all the material presented gives no confidence that, in the longer term, Mr JB has either the finances or the ability or capacity to fulfil conditions imposed by a permit.

The Applicant in this matter did not engage any independent experts to assist in progressing the artificial reef placement application. In effect, all of the documentation presented by the Applicant is the work of Mr JB. The Tribunal found Mr JB to be an engaging and enthusiastic witness and party. However, as the following exchange between Mr JB and Mr Kaplan highlights, Mr JB is not a trained expert in the fields central to the development, installation and management of artificial reefs – Tr. 26.10.2022 pp. 41 – 44:
“MR KAPLAN: Mr [JB], early on in the evidence that you gave to the Deputy President, you mentioned that you have an engineering background. Do you recall giving that answer?---Well there’s - exactly which one you’re talking about, I’m not sure. But yes, I do have an engineering background. I did all my training at RMIT - - -
No, no, Mr [JB] – if you could please - Mr [JB], please listen to my question. Do you recall giving that answer?---You’re - who was I talking to? What were we talking about here
Mr [JB], I’ll - I will start the question again. Do you recall early on in your evidence to the Deputy President this morning saying to the Deputy President that you have an engineering background? Do you remember uttering those words or words to that effect?---Probably, yes.
Now, you don’t have an engineering degree, do you? And by engineering degree, I mean, you don’t have a Bachelor of Engineering---?---Mechanical engineering degree? No, I don’t have a mechanical engineering degree. No, I don’t. But I do have---
I’m sorry, Mr [JB]. Please wait for my next question, and then I’ll invite you to answer it. So you’ve just confirmed that you don’t have a Bachelor’s Degree in Engineering? Yes?---Yes. I don’t. No.
Nor do you have a Master’s Degree in Engineering, do you?---No, I don’t.
Now, what you’ve said in your profile at page 403 of the T documents is that in the year 1993, you say you undertook preliminaries for a mechanical engineering degree, University of Southern Queensland. And then you say immediately below that, “1031: Developing student study skills”; “11033: Developing student communication skills”. Can you see that?---I can’t. I haven’t got it here, but I understand what you’re saying. Yes. That’s pretty much what I’ve expected it was.
Well, do you have a recollection of the of the content of the personal profile?---What you’re questioning me and asking me whether or not I continued on with my engineering degree? No, I didn’t. The reason why I may---
Mr [JB], please. I have not yet put my question. So you - I asked you whether you had that. And I think you answered in the negative. And then I was in the process of asking whether you have a recollection of the content of the document that I’m looking at, which is a profile, “[JB], Innovative Developments, Pty Ltd”, that is contained in the T documents which is exhibit 1. Do you at least have a recollection of the content of that document?---Just a second and I’ll go and get it so that we don’t have any confusion about what it actually is about, okay? From the point of view – okay, so what page were we talking about on my profile?
Could you go to page 403 of the T documents if you haven’t. Alternatively, page 3 of the profile document?---What do you want? Page 3? 403? Yes, got it. Okay. Yes. What now?
You’ve got page 3. Now, you see under “1993”, there’s a reference to preliminaries for a mechanical engineering degree. And then you’ve listed what appears to be two units of study: “Developing student study skills”, “Developing student communication skills”. You see that?---Yes.
Now were they two units that you took as part of what you describe as preliminaries for a mechanical engineering degree in 1993?---That was a lead up to that, I do believe, yes. Now what happened was, I didn’t start - - -
Now those units – those units that you - - -?---Hang on, I’m trying to tell you. I’m trying to answer you. I didn’t have - I did not stay at that very long. And the reason why I didn’t stay at that very long, because I had not…
MR KAPLAN: Now Mr [JB], you’ve undertaken no course of study in fluid dynamics have you---Yes…well no, separate course? No. I did a one on one with Autodesk by link up in the US, which was very, very enjoyable actually.
But you’ve undertaken no course you’ve just confirmed. Correct?---Well if you want to call that a course, yes, it was. I’ll give you a little bit of what I’m talking about as far as the course goes. Right?...
MR KAPLAN: Now Mr [JB], just so that I can clarify: I’ve used the word course. By course, I mean, a course of study. You’ve not undertaken any course of study in fluid dynamics, correct?---No, that’s not correct. When you say course of study, are you talking about - - -
Can you show - can you show that to me sir at either page 403 or 404 of your personal profile?---Mate, you’re going around in bloody circles. Do you want me to answer the question or not?
You’ve answered my question, which was no. I’m now asking you another question which is to identify for me on page 403 or 404 of the T documents where your personal profile or resume is contained - show to me please, and show to the Deputy President, where you’ve indicated that you undertook such a course of study?---Okay. I’ll tell you what the course of study was and I’ll tell you how significant it was, okay? Where I was at with this - - -
Mr [JB]– Mr [JB], I’ve asked you, Mr [JB], to refer me ---?---I’m trying to tell you that the course of study which I did which is not on here. But this is what I did. Do you want to know? There’s a lot of - there’s a lot to say about it, okay?
So it’s not - it’s not on your profile?---It’s not in there, but I can tell you here and now, I’ve got all this CFD stuff to prove to you. Okay. Do you want to hear what happened with it?
Okay. I’ve asked you about – I’ve asked you about a course of study?---Well look, you’re not going to force me into something which I’m saying that I didn’t. The thing is, I didn’t go to uni to do it. But it was a bloody sight better than doing it with uni, I can tell you this. And this is how I - - -
I’m not asking you about your – I’m not asking you about university. I’m asking you about what courses - - -?---Do you want to know how I got my qualifications with CFD, right? And I’ll tell you to what extent that I did and how the Autodesk helped me considerably. This went over for three years. It was $54,600 worth of CFD. Not only just CFD; it was also AutoCAD as well, and Inventor, okay? And for each of those three years, they gave me a copy of each of those. And not only that. I had at my whim to do what I needed to do to communicate with their specialists there. And I had a one on one link up with them whenever I needed to do, from a point of view of actually gaining my experience with CFD. And that went on for years. So that’s how I got my – that’s how I undertook the …”
The above exchange is set out at some length to highlight the problems faced by Mr JB in advancing his company’s application in the absence of independent expert advice or reports which corroborate his findings and his propositions. As Mr JB has not been formally trained at university level in key areas and has not the benefit of independent professional support for his findings and propositions, the Applicant’s application at times does not rise above, assertions.
For the reasons outlined above, the Tribunal exercises its discretion in s 19(1) of the Act to refuse the grant of a permit for an artificial reef placement. In reaching this conclusion, the Tribunal is satisfied that the imposition of conditions would not remedy the fundamental underlying problems with the application, most significantly, the manifest incapacity of the Applicant, at this point of time, to ensure that it could adequately manage the artificial reef proposal in the short, medium or long term.
CONCLUSION
The Tribunal is reasonably satisfied that the proposed artificial reef placement is contrary to the aims of the London Protocol and therefore falls outside the definition of “artificial reef placement” in s 4(1) of the Act. The consequence of this finding is that a permit cannot be granted under s 19 of the Act.
Further, if the Tribunal is in error, and the proposed artificial reef placement is not contrary to the aims of the London Protocol, the Tribunal refuses to grant a permit pursuant to s 19(1). The issues which respect to the adequacy of proposed monitoring and long-term management concerns (including decommissioning) are central to this refusal. Further the issues relating to the corporate structure of the Applicant are such that the Tribunal is not satisfied that the type of conditions raised in the PGM Report would remedy these problems.
Before concluding, the Tribunal places on record its appreciation for the manner in which Mr JB has attempted to advance his company’s application. The Tribunal encourages Mr JB to seek professional assistance in advancing his artificial reef proposal. Clearly, the artificial reef proposed by Mr JB is novel and he has spent an enormous amount of his time and finances in advancing what could be an innovative and successful proposal. Mr JB rightly claims that his company’s proposal is novel, innovative and potentially world-class. It is for these reasons, that it is essential that such a novel proposal is supported by independent expert evidence.
The environmental protection regime mandated by the London Protocol is strict and prescriptive. Contracting Parties are required to take measures to protect and preserve the marine environment from all sources of pollution. In that regard, Contracting Parties are required to apply a precautionary approach to environmental protection from the dumping of wastes and other matter.
The placement of an artificial reef is not per se dumping, but the placement of artificial reefs is strictly regulated.
One of the concerns raised in the past is the placement of artificial reefs could be used to legitimise the dumping of waste or other materials. In order to prevent that occurring the UNEP Guidelines were developed to provide guidance on the construction, development and ongoing management of artificial reefs.
It would appear in this matter that the Applicant has failed to appreciate the statutory and regulatory duties imposed on the Minister and the Department when assessing artificial reef applications. It would be in the interests of the Applicant to constructively engage with the Department, and it is manifestly clear to the Tribunal that the Department and the Minister have simply carried out the duties imposed on them by the law outlined in this decision.
Although this decision will, no doubt, be a disappointment to Mr JB, it is hoped that he uses the opportunity to reconsider the application and engage in the future with the Department in a manner that hopefully may ensure that the Applicant’s proposal can be advanced in accordance with the regulatory regime for artificial reefs.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for the decision herein of Deputy President J. Sosso

...................................[SGD].....................................
Associate
Dated: 17 February 2023

Date(s) of hearing: 26 and 27 October 2022, 25 November 2022

Date final submissions received: 3 November 2022

Counsel for the Respondent: Mr B Kaplan

Solicitor for the Respondent: Ms G Ng

[2023] AATA 186

17 February 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Procedural Fairness

Statutory Construction

Remedies

Proportionality

Date(s) of hearing:	26 and 27 October 2022, 25 November 2022
Date final submissions received:	3 November 2022
Counsel for the Respondent:	Mr B Kaplan
Solicitor for the Respondent:	Ms G Ng