Kottakis and Great Barrier Reef Marine Park Authority
[2001] AATA 807
•25 September 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2001] AATA 807
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/925
GENERAL ADMINSITRATIVE DIVISION ) Re Marcos Kottakis Applicant
And
Great Barrier Reef Marine Park Authority
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Mr G A Mowbray, Member
Date25 September 2001
PlaceSydney
Decision The Tribunal affirms the decision under review. ..............................................
Deputy President
CATCHWORDS
ENVIRONMENT - GREAT BARRIER REEF MARINE PARK – Applicant sought permit to operate as regional tour operator in Great Barrier Reef area – where restrictions applied to operators who spent less then 50 days in the relevant area - whether Applicant established “special circumstances” to gain an exception to the restrictions – where phrase “special circumstances” not previously considered in this context
Great Barrier Reef Marine Park Act 1975: ss 5(1), 32(7), 39W
Great Barrier Reef Marine Park Regulations 1983: regs 18(4)(j), 27
Cairns Area Plan of Management: para 1.23(2)(b)
Whitsundays Plan of Management: para 1.12(1)(b)
Beadle v Director-General of Social Security (1985) 7 ALD 670
Groth v Department of Social Security (1995) 40 ALD 541
Kertland v Secretary, Department of Family and Community Services (1999) 57 ALD 600
Kirkbright v Secretary, Department of Family and Community Services (2000) 106 FCR 281
Re Beadle v Director-General of Social Security (1984) 6 ALD 1
Re Bromley and Secretary, Department of Primary Industry (AAT 5536, 6 December 1989)
Re Buckland and Department of Primary Industry (AAT N85/140, 28 November 1985)
Re Campisi and Department of Primary Industry (AAT N85/146, 6 December 1985)
Re Daff and Secretary, Department of Primary Industry (1987) 19 ALD 369
Re Groth and Secretary, Department Social Security (1995) 37 ALD 797
REASONS FOR DECISION
Mr R P Handley, Mr G A Mowbray 1. This is an application by Marcos Kottakis to review a decision of a delegate of the Great Barrier Reef Marine Park Authority (“the Authority”) made on 18 May 2000 to refuse to authorise Mr Kottakis to operate a regional tour operation within the planning areas stipulated in the Cairns Area and Whitsundays Plans of Management on more than 50 days a year and without a booking.
2. At the hearing, Mr Kottakis was represented by his colleague Lynn Comyns and the Respondent by Michael Fellows, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the other exhibits tendered by the parties. Oral evidence was given at the hearing by Mr Kottakis, Ms Comyns. Martin Robinson and John Dunn gave evidence of behalf of the Respondent.
Background
3. Mr Kottakis commenced the construction of the Motor Vessel (“MV”) Centurion, a vessel of 24 metres, in 1989. His intention was to operate as a tour operator in the area of the Great Barrier Reef, taking parties of those interested on extended diving and fishing trips of 5 to 10 days. Mr Kottakis first applied for a permit to operate in the area of the Great Barrier Reef in 1995 and was granted a 12 month permit from 25 July 1996. On the expiry of this permit in 1997, Mr Kottakis sought a further permit which was granted for a period of six years from 18 November 1997 to 15 October 2003.
4. Plans of management for the Cairns Area and Whitsundays were gazetted on 20 June 1998. These plans restricted access to the Great Barrier Reef by tour operators, in particular those whose operations had involved less than 50 days in the relevant areas in the period 1 January 1996 to 30 June 1997. A new regulatory regime to enforce these restrictions took effect on the 27 October 1999. Regional tour operators who had operated for less than 50 days in the relevant area could, however, seek an exemption from these restrictions on the basis that there were special circumstances warranting the grant of the exception or permission.
5. On 15 June 1999, Mr Kottakis sought the grant of an exception from the new restrictions on the basis of special circumstances. On 7 February 2000, a delegate of the Authority decided to refuse the grant of an exception to Mr Kottakis, of which Mr Kottakis was notified by letter dated the 16 February 2000. Mr Kottakis sought a review of this decision. A review was conducted by another delegate who, on 18 May 2000, affirmed the original decision. On 16 June 2000, Mr Kottakis lodged an application for a review by the Tribunal.
The Legislative Regime
6. The Great Barrier Reef Marine Park Act 1975 provides for the establishment, control, care and development of the Great Barrier Reef Marine Park. Section 32 of the Act provides for the Authority to prepare zoning plans for the conservation of the Reef and the regulation of its use. Section 39W also provides for the preparation of plans of management. These plans take effect on the date on which they are published in the Commonwealth Government Gazette, but the enforcement provisions only become operative when given effect by regulations made under the Act.
7. The Authority has declared zoning plans for both the Cairns Section and Central Section of the Park. The Authority has also prepared and published plans of management for both the Cairns and Whitsundays areas. Each of these plans provides for restricted operations in the relevant areas. Restrictions apply unless a regional tour operator was previously permitted to operate in the planning area for more than 50 days per year. In particular, in the case of the Cairns Area, restrictions apply unless an operator was not previously limited to operating while attached to a pontoon or permitted mooring, and did in fact operate in those areas for at least 50 days between 1 January 1996 and 30 June 1997. Otherwise, an unrestricted permission can only be granted to a regional tour operator if there are special circumstances that warrant the grant of the permission. (Cairns Area Plan of Management, paragraph 1.23(2) and Whitsundays Plan of Management, paragraph 1.12(1))
8. Regional tour operators seeking such an exception or permission must apply to the Authority, providing the information required by reg 18 of the Great Barrier Reef Marine Park Regulations 1983. Regulation 18(4) sets out matters to which the Authority shall have regard in considering an application for a relevant permission, including the objective of the zone and the conservation, control and use of the zone.
9. There is no dispute between the parties that Mr Kottakis was not operating in either of the relevant zones in the period prior to the plans of management taking effect. There is, therefore, no dispute between the parties that the only way in which Mr Kottakis could gain an exception to the restrictions on tour operators would be if he were to establish special circumstances warranting the grant of such an exception.
Evidence and Findings
10. Mr Kottakis emphasised his acknowledgment of the need to conserve and protect the Great Barrier Reef and of the need for the regulation of activities in the region of the Reef. He said that his proposed tourist operations would be conducted responsibly, so that no damage would be caused to the Reef. However, he said that the restrictions imposed by the 50 day operating limit would make running his proposed business very difficult. He sought to distinguish his tour operation from many of those in the Great Barrier Reef area because the trips he proposes to operate will be of a longer duration of perhaps 5 to 10 days, and not of the 1 to 3 day variety. Because his business will be accepting bookings for between 6 to 18 months in advance, restrictions imposed by the 50 day limit will make planning very difficult. He felt that the Authority was acting unreasonably, seeking to make an example of him, and was not prepared to try and negotiate a compromise which would address the specific needs of his particular type of tour operation. Mr Kottakis also mentioned that unrestricted permits could be purchased from previous owners, including those who had not operated for several years. Some of these permits were for relatively small numbers of passengers which the new owners were able to use for larger vessels catering for a larger number of passengers.
Construction of the MV Centurion
11. Mr Kottakis described for the Tribunal the various stages in the history of the construction of the MV Centurion. When Mr Kottakis first considered operating as a tour operator in the Barrier Reef area, he made enquiries about the cost of construction of a purpose built vessel to meet the needs of his proposed business. The estimated cost proved to be so great that he decided to undertake the construction as an owner builder, sub-contracting the various specialists tasks which had to be undertaken and himself acting as a supervisor for the whole project. He decided to build the boat on a 25 acre block of land which he owns at Raymond Terrace, which is about 40 kilometres and a 45 minute drive from where he and his family live in Hamilton in inner Newcastle. Apart from sheds on the block of land, and the construction of the boat, there has been no other activity there other than running a few cows to crop the grass. He said that he had been advised that to have such a vessel built for him at a boat yard could take between 2 and 2 ½ years and his research showed that most boat builders building vessels of this type would be building in the open air.
12. The first stage in the building of the boat commenced in June 1989 with the construction of the hull over a period of seven months. Mr Kottakis said that plans for the boat were drawn up by a marine architect and the boat was built to the architect’s specifications. The first stage took only about one month longer than was expected - as a result of problems with welding. Stage two of the building, which commenced in December 1989, comprised the fairing of frames and bulk heads, cutting stringers and welding them into place, cutting, constructing and putting in place fuel, water and sullage tanks, and the laying of the keel.
13 However, on 28 December 1989, Newcastle was hit by an earthquake which caused severe damage to many buildings in the city. Among the buildings damaged were the rented premises in Tudor Street where Mr Kottakis ran a dive shop, and also the building which he owned in Beaumont Street comprising 2 shops, which were leased out, and a four bedroom apartment at the rear of the building where Mr Kottakis and his mother and father lived. The latter building was so badly affected that they were only allowed in for about 10 minutes to remove personal possessions. Mr Kottakis also owned a timber framed house in Cleary Street, which was at that time leased out. This house suffered only minor damage in the earthquake and it was there that Mr Kottakis and his parents moved having found alternative accommodation for their then tenants. The dive shop premises in Tudor Street were so badly damaged that Mr Kottakis was no longer able to operate his business from there.
14. The outcome of the earthquake was, therefore, that Mr Kottakis went from being relatively well off to having virtually no income at all. For approximately 2 years from the time of the earthquake, Mr Kottakis had to focus on sorting out the aftermath of the earthquake: he was involved in negotiations with insurance companies over his claims in respect of the damage, gaining the necessary permission from Newcastle Council for the reconstruction of the buildings, and supervising their reconstruction as an owner builder. He therefore had to postpone work on the construction of the boat.
15. The result was that stage two of the construction, which should have taken about six months, in fact took thirty-one months and was not completed until July 1992. After the earthquake, Mr Kottakis undertook a limited amount of dive shop business from home and undertook a small amount of work for others. Primarily, he was involved with supervising arrangements for the re-building of his buildings damaged in the earthquake. However, he did re-open the dive shop and operated this with partners for about two years during 1996 and 1997. At the end of this period, he decided to pull out of the business in order to concentrate on finishing the boat.
16. Stage three of the construction of the boat included sandblasting and painting with a pre-weld primer before plating of the hull, as a result of the time which had elapsed since construction on the boat had started. Stage three was expected to take eighteen months but instead took fifty-two months until May 1994. Stage four comprised the turning of the hull and the positioning of the saloon deck onto the turned hull. This took five and a half months, rather than the expected four months, as a result of difficulties with positioning the three cranes needed to turn the hull which tended to sink into the ground as a result of the heavy weight which they bore.
17. Stage five, which included, the welding of the saloons to the hull and work on the upper decks, took eighteen months rather than the expected nine months, until June 1997. It was during this period that Mr Kottakis considered purchasing an existing vessel to start operating in the Great Barrier Reef area. He had discussions with the Authority over obtaining a suitable permit for his tourist operation and was advised that an all section roving style permit would be appropriate. This was the permit which he applied for and was eventually granted. However, the permit application which he was advised would take six weeks to process, in fact, ultimately took about twelve months before it was issued. As a result, the purchase of a vessel which he had arranged fell through, as he was not prepared to commit to the purchase without the security of knowing he had a permit.
18. Stage six of the construction comprised sand blasting and priming of the hull. This took nine months rather than the four to six weeks anticipated, as a result of the need to do the work themselves when they were unable to obtain trades persons with the necessary experience to do the work on site. This also meant that Mr Kottakis had to purchase necessary equipment. He said that they used $45,000.00 worth of paint during this stage.
19. Stage seven of the work was carried out in four months between March and July 1998, involving installation of plywood flooring, installation of the engine and gear box, and of the shaft, and the testing of fuel and water tanks and the preliminary fitting of windows. This took three months longer than anticipated.
20. Stage eight comprised the painting of external areas of the boat. This was expected to take about a month and in fact took thirteen months, largely as a result of difficulties brought about by unseasonable weather.
21. Stage nine comprised the launching of the vessel. What should have taken one day took three months as a result of difficulties in transporting the boat to a suitable launch site, and, in particular, prolonged negotiations with Energy Australia with regard to the need to avoid overhead lines. Once launched, the boat was towed to Newcastle where it has been moored in Newcastle Harbour since 24 December 1999. The final work on the boat is now in progress.
22. Currently, the engine room is ninety per cent finished: the air-conditioning is to be completed, carpeting is to be layed in the passenger accommodation, the galley requires finishing touches, the saloon requires cushions and the construction of tables and some carpentry, the crew accommodation and carpeting of the wheel house needs to be completed, the steering section needs to be finished, external windows need to be rescrewed, the anchor is to be installed and, finally, the boat needs to be repainted where necessary. Mr Kottakis said that he hoped that the boat would be finished by the end of the year
23. Mr Kottakis concluded the description of the construction of the boat by saying that what had started out as a dream had become a nightmare, largely as a result of a lack of knowledge and planning as to how to go about the building of a boat.
Health Problems Affecting the Project
24. Mr Kottakis described the health problems, which his father had suffered through 1996 leading to his father’s death on 24 October 1996. From about January 1996, his father was suffering from heart and prostate problems which meant that Mr Kottakis had to drive him to medical appointments because his mother does not drive. His father was also in and out of hospital as a result of a kidney infection, and spent the last three weeks before he passed away in hospital. Because Mr Kottakis was supervising the construction of the boat, work on the boat had to largely cease if he was not there to provide supervision. Essentially, therefore, construction on the boat stopped while Mr Kottakis was dealing with family problems in 1996. Mr Kottakis’ mother has on-going heart problems and suffered a stroke at the end of 1997. Ms Comyns’ father was suffering from dementia in the late 1990s and ended up going into care in February 2001.
25. In addition to parental health problems, Mr Kottakis needs a knee reconstruction and, as a result, is presently not very mobile. He relies on a stick in order to walk. Ms Comyns also suffers back problems.
Dealings with the Great Barrier Reef Marine Park Authority
26. Ms Comyns stated that when she contacted the Authority with respect to seeking an exception to the 50 day restriction, she was advised that the death of Mr Kottakis’ father should be sufficient to bring them within the “special circumstances” exception. She was advised to write a letter to the Authority explaining how the construction of the boat had been delayed by the death of Mr Kottakis’ father. There was no advice as to having to provide a detailed account of how the construction had been delayed. Ms Comyns also noted the delays in the processing of applications by the Authority. For example, the original permit with which Mr Kottakis was issued took eleven months from the time of application to the time of issue. Similarly, when Mr Kottakis applied for a review of the most recent decision on the application of the 50 day limit to his permit, this review decision was not taken within the forty days required by the legislation, and was almost a month out of time. Ms Comyns said it seems that the review decision had been made based on the advice of an external consultant and that the review officer did not appear to have exercised his independent judgment. Ms Comyns also complained that the view taken by the Authority on progress with the construction of Mr Kottakis’ boat was unrealistic given that he was an owner builder and the boat was not being constructed by a professional boat builder.
27. John Dunn, the Manager – Mooring Allocations for the Authority (R24), gave oral evidence about the processing of applications for exemption from the 50 day restriction on use of the Cairns and Whitsunday Areas. He noted that Mr Kottakis had not used his permit at the time his application for exemption was considered. He said he recommended against granting an exemption to Mr Kottakis because most of the reasons put forward by Mr Kottakis were within his control. He accepted that the death and illness of family members may have caused delays, but most of the construction problems encountered, for example the effects of weather, were standard risks in a project of this sort and could be ameliorated with appropriate project management. No evidence of business or other planning by Mr Kottakis had been presented to him. Thus, he did not consider that special circumstances existed.
28. Mr Dunn also pointed out that the vessel was still under construction, that Mr Kottakis had not informed the Authority either of specific areas of operation other than the proposed trips, nor of the intended base for the vessel. These were important considerations if an applicant were to seek to be exempted from restrictions.
29. The Tribunal also heard oral evidence from Martin Robinson, the Manager of Environmental Systems for the Authority (R21). Mr Robinson explained that the Cairns and Whitsundays Areas of the Reef are the most intensively used. He said the restriction on tour operators of 50 days per year require that operators phone the Queensland National Parks and Wildlife Service (as a result of Commonwealth/State Co-operative arrangements) to make a booking. To date, no site in the Cairns and Whitsundays areas has been booked out, so that a booking can still be made on the day that it is required. If a booking is not used, provided the Queensland National Parks and Wildlife Service is notified, then that booking will not be counted towards the 50 days permitted.
30. Mr Robinson said that the number of permitted bookings per site is set out in the Plans of Management and is dependent upon the sensitivity of the location. In adverse weather conditions or in other situations where the safety of a vessel or its passengers and crew is at risk in a vessel is permitted to shelter or transit the areas subject to the Plans of Management without this affecting the number of permit days available to a tour operator. The operator would not, however, be permitted to carry out recreational activities in such a situation.
31. Mr Robinson had considered the proposed trips which Mr Kottakis might undertake as part of his tourist operation. He said that many of the Reef sites that Mr Kottakis proposed to visit were outside the Cairns and Whitsundays areas and not subject to the 50 day restriction. Moreover, Mr Kottakis could still use the Cairns and Whitsundays areas for transit purposes, and the Cairns area can be used for access on 365 days per year provided a mooring is used.
Proposed Trips in the Great Barrier Reef Area
32. At the hearing, there was discussion of the routes which Mr Kottakis might undertake as part of his tourist operation in the area of the Barrier Reef and the Reef sites which might be included in such an operation. Mr Kottakis said that he intended to hire a professional crew to operate the vessel and that he would be shore based in Queensland, concentrating on running the business and on sales and marketing. He said that as soon as the vessel was finished, which should be by the end of the year, and when it had been trialled by running short tours in Newcastle Harbour, it was his intention to take the boat to Queensland and to commence operating as soon as possible.
FINDINGS
33. There is no dispute in relation to the facts concerning the construction of the vessel, nor as to the health problems experienced by Mr Kottakis, Ms Comyns and their families. The Tribunal finds that the construction of the vessel was significantly delayed by the Newcastle earthquake, by the health problems experienced by Mr Kottakis, Ms Comyns and their families, in particular by the ill health and subsequent death of Mr Kottakis’ father and by various problems associated with the construction work caused by the weather and Mr Kottakis’ inexperience as an owner-builder of such a vessel.
34. To date, the vessel has been under construction for a period of 12 years. Mr Kottakis hopes it will be finished and undergoing trials in Newcastle Harbour by the end of this year.
35. There is no evidence of significant hardship caused to Mr Kottakis as a result of his dealings with the Authority. The Tribunal accepts there may have been delays in the processing of applications but, in the Tribunal’s view, these delays have not had any significant effect on Mr Kottakis, given that construction of his vessel has not yet been finished.
36. The Tribunal notes the evidence of Mr Robinson concerning the Great Barrier Reef trips proposed by Mr Kottakis. Mr Robinson’s evidence suggests that the 50 day limit on operating in the Cairns and Whitsundays areas will not prevent Mr Kottakis from undertaking the greater part of the proposed trips. However, the Tribunal accepts that Mr Kottakis will need to plan carefully how best to use his 50 day permitted access to these areas for the purpose of undertaking the proposed recreational activities.
DISCUSSION OF THE LAW AND SUBMISSIONS
37.The issue for the Tribunal is whether there are “special circumstances” warranting the grant of an exception. The relevant specific wording of the Cairns Area Plan of Management is (at para 1.23(2)(b)):
that there are special circumstances that warrant the grant of the exception or permission.
The relevant specific words in the Whitsundays Plan of Management are (at para 1.12(1)(b)):
The Authority will also consider an exception to the limit of 50 days’ operation in the Planning Area, if special circumstances warrant the exception.
No further guidance is given in the plans of management as to the meaning of the words “special circumstances”.
The Respondent
38. Mr Fellows, Counsel for the Authority, noted that the phrase “special circumstances” was used in a range of legislation, and the meaning of the phrase should be considered in the context in which the words appear. In relation to the Great Barrier Reef, it should be noted that the object of the regulatory regime is the preservation and management of a World Heritage Area. The relevant legislation is of a conservative nature, imposing restrictions on the use of the Park. This should be contrasted, for example, with beneficial legislation such as the Social Security Act 1991, in respect of which there has been considerable discussion of “special circumstances”.
39. Mr Fellows referred the Tribunal to the case of Re Groth and Secretary, Department Social Security (1995) 37 ALD 797 where the Tribunal discussed what forms of hardship might constitute special circumstances. Mr Fellows contended that hardship arising as a result of legislative change does not constitute special circumstances. He also referred to a number of fisheries cases decided by the Tribunal: Re Buckland and Department of Primary Industry (AAT N85/140, 28 November 1985) Re Campisi and Department of Primary Industry (AAT N85/146, 6 December 1985); Re Daff and Secretary, Department of Primary Industry (1987) 19 ALD 369; Re Bromley and Secretary, Department of Primary Industry (AAT 5536, 6 December 1989).
40. This was to illustrate the approach adopted to “special circumstances” exceptions in fisheries management, another area of environmental regulation. In these cases, the Tribunal’s emphasis sought to ensure that application of the special circumstances exception would not defeat the legitimate objectives of the management regime (e.g. Daff (supra) at paragragh 56 – 57) and would be limited to “special unfairness to the applicant” (Bromley (supra) at paragraph 16).
41. The Tribunal notes the Federal Court decision in Groth v Department of Social Security (1995) 40 ALD 541, where Kiefel J observed, at 545, that special circumstances:
would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case….…. it would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
42. Earlier cases have emphasised that special circumstances “is incapable of precise and exhaustive definition”: Re Beadle and Director – General of Social Security (1984) 6 ALD 1 at 3. What constitutes special circumstances depends on the circumstances of that particular case: Beadle v Director General of Social Security (1985) 7 ALD 670.
43. The Tribunal also notes recent cases with regard to the Social Security Act 1991 where the Federal Court has said that special circumstances provisions may be used to “ameliorate such unfairness or injustice when it appears by strict application of the law”: Kirkbright v Secretary, Department of Family and Community Services (2000) 106 FCR 281, Mansfield J at para 22; see also, Kertland v Secretary, Department of Family and Community Services (1999) 57 ALD 600, Merkel J at 609.
44. Mr Fellows submitted there were no special circumstances in Mr Kottakis’ case. Whilst there was no question as to Mr Kottakis’ long term goals and commitment, the story of the construction of his vessel was one of business choices and inefficiencies arising out of his decision to proceed with the construction of the vessel as an owner/builder with no previous experience of building such a vessel. Moreover, his correspondence with the Authority over several years suggested that the vessel was nearly complete and would soon be operational – as such the correspondence was misleading.
The Applicant
45. Mr Kottakis said there was no question that the Great Barrier Reef needs protection. However, the Plans of Management have flaws and are not being consistently applied across different classes of boat. The monthly publication Trader Boat has advertised marine permits for the Reef for the past 6 to 8 years. He gave the example of a Doctor in South Australia who was selling a permit but has not owned a boat for the past 4 years. He said neither business planning nor finance were specified criteria for obtaining a permit. He referred the Tribunal to the Information Sheet on Criteria for Extenuating/Special Circumstances (T13, p118), published by the Authority, noting that the following matters to which the Authority may have regard.
5.any extended illness of a person for whom the permittee is the primary care giver;
…
7.any non-seasonable weather event which may have prevented operation for an extended period;
…
10.The permitted level of access during the eligibility period (cf: with the permitted level at time of gazettal of the Plan)
and other relevant circumstances.
46. Mr Kottakis submitted that the reasons for his not yet being operational are special circumstances. He needs greater flexibility for operating than the restricted permit allows. He emphasised that the proposed trips of which he had provided details were merely proposed. He is not sure whether these will be realistic until he starts operating.
47. Mr Fellows responded that the Criteria for Extenuating/Special Circumstances (T13, p118) assume the person has a boat that the person is operating. More generally, with respect to permissions, he referred the Tribunal to reg 18 (4)(j), which states that in considering an application for a relevant permission, the Authority shall have regard to:
(j) any other requirements for ensuring the orderly and proper management of the Marine Park.
Regulation 27 also provides that in considering an application for an authorisation, the Authority must take into account:
(b)the requirements for ensuring the orderly and proper management of the Marine Park
APPLICATION OF THE LAW
48. The Tribunal recognises that whether circumstances are “special”, that is, circumstances which are exceptional, unusual or out of the ordinary, must be considered in the context in which they arise. The context here is one of the conservation and management of the Great Barrier Reef, a World Heritage Area. Section 5(1) of the Act states that its object:
is to make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region
Section 32 requires the Authority to prepare zoning plans having regard under subsection (7) to the following objects:
(a) the conservation of the Great Barrier Reef;
(b) the regulation of the use of the Marine Park so as to protect the Great Barrier Reef while allowing the reasonable use of the Great Barrier Reef Region;
(c) the regulation of activities that exploit the resources of the Great Barrier Reef Region so as to minimize the effect of those activities on the Great Barrier Reef;
(d) the reservation of some areas of the Great Barrier Reef for its appreciation and enjoyment by the public; and
(e) the preservation of some areas of the Great Barrier Reef in its natural state undisturbed by man except for the purposes of scientific research.
49. It is clear from the decision in Groth (supra) and later Federal Court decisions that special circumstances can include those circumstances where a person suffers an “unfair, unintended or unjust” outcome, including as a result of the application of a regulatory regime. However, once again, it should be emphasised that the context of the regulatory regime must be considered and that unfair, unintended or unjust outcome must be special in the sense that it has an exceptional or extra ordinary impact on the person.
50. In the present case, Mr Kottakis is seeking to rely on “special circumstances” to obtain an exception to the restriction imposed on tour operators so that they can only operate in the Cairns and Whitsundays areas for 50 days a year. The special circumstances which he has identified are as follows: Firstly, the delay in the construction of the MV Centurion caused by the ill-health and death of his father and ill-health of other family members, and other delays as a result of the Newcastle earthquake, the weather and other problems associated with being an owner-builder; secondly, communication/processing difficulties in his dealings with the Authority; and thirdly, the hardship to his business which would be caused by being limited to the 50 day a year restriction.
51. In the Tribunal’s opinion, these circumstances do not amount to special circumstances. Whilst delays in the construction of the vessel occurred for the reasons identified, most of these delays, with the exception of the Newcastle earthquake, were foreseeable in the sense that illness and death are not exceptional or out of the ordinary, and that weather and other problems associated with being an owner-builder are bound to be encountered in the construction process. The Tribunal cannot accept that even with exceptional difficulties arising, the construction of a vessel could take as long as 12 years unless by reason of inexperience and a lack of planning by the person. This is not to doubt Mr Kottakis’ commitment to the project and his goal of operating as a tour operator in the region of the Barrier Reef. It is just that his project was unrealistic at the outset and, in his words, became a “nightmare”. Thus, in the Tribunal’s opinion, the delay in the construction of the vessel was to a significant extent of Mr Kottakis’ own making and cannot, therefore, be considered a special circumstance.
52. Secondly, the communication/processing difficulties experienced by Mr Kottakis in his dealings with the Authority are of a relatively minor nature. Thirdly, the Tribunal does not accept that any special hardship will be caused to the operation of Mr Kottakis’ business when compared with others. Had he waited to apply for a permit until construction of the vessel had been finished, one assumes the issue presently before the Tribunal would probably never have arisen. Moreover, it is not clear that the operation of his proposed business will, in any event, be significantly affected. The evidence of Mr Robinson suggests that while some inconvenience may be caused to Mr Kottakis by the need for more detailed planning, including the requirements that he book the use of particular Reef sites, nevertheless, Mr Kottakis’ proposed trips may not require significant modification.
53. The Tribunal also notes that in being subject to the 50 day restriction, Mr Kottakis will be like all other new tour operators in the area of the Reef. If the Reef is to be conserved and its use managed, then those who operate the area of the Reef must necessarily submit to a regulatory regime.
54. Thus, “special circumstances” having not been established by Mr Kottakis, the Tribunal affirms the decision under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President and Mr B A Mowbray, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 6 & 7 August 2001
Date of Decision 25 September 2001
Representative for the Applicant Ms L Comyns
Counsel for the Respondent Mr M Fellows
Solicitor for the Respondent Fiona McDonald, Australian Govt. Solicitor
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