CATCHWORDS – GREAT BARRIER REEF MARINE PARK AUTHORITY –
GRANTING OF PERMISSIONS - whether application for permit properly made – specifications set out in r.18(2) mandatory or directory – whether the Authority had failed to advertise properly in accordance with r.20 – whether piecemeal consideration of assessment of project because two stage approach of construction and operation – whether permit lacked finality – whether permit uncertain.
ULTRA VIRES – whether permit granted for purposes beyond power of Authority in relation to management of Marine Park – whether determined by the use of the Marine Park or a purpose that may be achieved as a result of that - facilitation of construction of financially viable facility – disposal of acid sulphate soils in Marine Park – alteration of area of the Marine Park.
RECOVERY OF MINERALS – whether permit in contravention of s.38(2) - considered meaning of "mining" and "mining for minerals" and "operations for the recovery of minerals".
PRECAUTIONARY PRINCIPLE – whether applicable in considering whether to grant a relevant permission
PRUDENT AND FEASIBLE ALTERNATIVES – meaning of alternative – whether limited to uses within power of Authority to approve – meaning of feasible and prudent – whether determined by economic considerations – consideration of economic; social and environmental impacts – whether all measures that can reasonably be taken to minimise risk have been taken
RELEVANT PERMISSION – whether should be granted having regard to matters – decision varied.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984
Australian Heritage Commission Act 1974 – s 3, 4, 22, 23, 34, 25, 28, 30
Broadcasting and Television Act 1942 (Cth) – s 19
California Environmental Quality Act
Canals Act 1958 (Qld)
Charter of the United Nations Act 1945 – s 3
City of Brisbane Town Planning Act 1964 (Qld)
Customs Act 1901 – s 164
Environment Protection (Impact of Proposals) Act 1974 – ss 3, 5, 6,
Environment Protection and Biodiversity Conservation Act 1999 – ss 391, 522B
Excise Act 1901- s 78A
Great Barrier Reef Marine Park Act 1975 – ss 3, 4, 6, 7, 7(1B), 30, 31, 32, 36, 38, 38B, 39W, 39X, 39Y, 39Z, 39ZD
Great Barrier Reef Marine Park Regulations – rr 5, 6, 10-13, 18-22, 32, 42-45, 52, 55, 56, 58, 61
Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143
Human Rights and Equal Opportunity Commission Act 1986 – Schedule 2
Income Tax Assessment Act 1936 (Cth) - s 122
Marine Parks Act 1982 (Qld)
National Environmental Policy Act 42 U.S.C. § 4321
National Environment Protection Council Act 1994
Seas and Submerged Lands Act 1973 – s 14
State Development and Public Works Organisation Act 1971-1981 (Qld)
The Constitution – s 29
Transport Operations (Marine Safety) Act 1994 (Qld) – s 30
Workplace Health and Safety Act 1995 (Qld) – s 30,
World Heritage Properties Conservation Act 1983
World Heritage Properties Conservation Act 1975 – ss 3A, 9, 10, 11, 12
Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424; (1989) 17 ALD 387
Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257; (1980) 45 LGRA 245; (1980) 146 CLR 493; (1980) 54 ALJR 176
Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70; (1989) 76 LGRA 200
Australian Postal Commission v Burgazoff (1989) 10 AAR 296
B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120
Barker v Australian Telecommunications Commission (1990) 95 ALR 72
Blackpool Pier Company v Fylde Union (1877) 36 LT 251
Casarotto v Australian Postal Commission (1989) 10 AAR 191; (1989) 86 ALR 399; (1989) 17 ALD 321
Citizens of Goleta Valley v Board of Supervisors of Santa Barbara County and Others (1990) 52 Ca. 3d 553
Collector of Customs and Bell Basic Industries (1988) 9 AAR 382; (1988) 16 ALD 506; (1988) 83 ALR 251; (1988) 20 FLR 146
Collector of Customs and Neumann Sands (Victoria) Pty Ltd (1996) 136 ALR 584
Commonwealth v Muratore (1978) 141 CLR 296; (1978) 22 ALR 176; (1979) 53 ALJR 98
Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329; (1983) 49 LGRA 65
Dubois and RESTORE: The North Woods v United States Department of Agriculture and Ors ((1996) Nos. 96-1015 and 96-1068, United States Court of Appeal for the First Circuit)
Elleissy v Australian Telecommunications Commission (unreported, Federal Court, Hill J, No G836 of 1988, 14 July 1989)
Environmental Protection Authority v Simsmetal Ltd and Others (1990) 70 LGRA 312; [1991] 1 VR 623
Friends of Hinchinbrook Society Inc v Minister for Environment and Ors (No 2) (1997) 69 FCR 28; (1997) 142 ALR 632; (1997) 93 LGERA 249; (1997) 49 ALD 18
Friends of Pryor Park v Ryde City Council and Sydney Montesorri Society (1996) 91 LGERA 302
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270; (1994) 11 EPLJ 451
McDonald v Director-General of Social Security (1984) 6 ALD 6; (1984) 1 FCR 354
Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (2000) 107 LGERA 363; [2000] NSWLEC 20
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353; (1995) 69 ALJR 423; (1995) 183 CLR 273; (1995) 39 ALD 206; [1995] 7 Leg Rep 18
Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349
Mt Marrow Blue Metals Quarries Pty Ltd v Moreton Shire Council (1994) 85 LGERA 408; [1995] QPLR 182; [1996] 1 Qd R 347
Neumann Dredging Co Ltd v Collector of Customs (1987) 79 ALR 588; (1987) 15 ALD 477a [Ext]
North Australian Cement Ltd v Federal Commissioner of Taxation (1969) 119 CLR 353; (1969) 1 ATR 225; (1969) 69 ATC 4077; (1969) 43 ALJR 303
NSW Association Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; (1956) 6 AITR 239; (1956) 11 ATD 50; (1956) 29 ALJR 775; (1956) 63 ArgLR 286
Packham v Minister for the Environment (1993) 31 NSWLR 65; (1993) 80 LGERA 205
Pioneer Concrete Pty Ltd v Brisbane City Council (1980) 145 CLR 485; (1980) 54 ALJR 153; (1980) 44 LGRA 346; (1980) 28 ALR 1
Randwick Municipal Council v Pacific-Seven (1989) 69 LGRA 13
Re Taxation Appeals No WT92/4, AAT No. 8299 (Deputy President Johnston, Senior Member Barnett and Mr Fayle, Member)
Rosemount Estates v Minister for Urban Affairs (1996) 90 LGERA 1
Scott v Wollongong City Council (1992) 75 LGRA 112
Smith v Repatriation Commission (1999) 31 AAR 1; (1999) 58 ALD 158
Simmons and Others v United States Army Corps of Engineers and Others (1997) No. 97-1131, United States Court of Appeal For the Seventh Circuit
Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291No. 97-1131, United States Court of Appeal for the Seventh Circuit)
Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 55 LGERA 197
Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710; (1991) 73 LGRA 379; (1991) 24 ALD 750
Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1; (1990) 98 ALR 68; (1990) 22 ALD 228; (1990 77 LGRA 165
DECISION AND REASONS FOR DECISION [2000] AATA 925
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q2000/354
GENERAL ADMINISTRATIVE DIVISION )
Re NORTH QUEENSLAND CONSERVATION COUNCIL
Applicant
And GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
And THE STATE OF QUEENSLAND
Party Joined
And NELLY BAY HARBOUR PTY LTD
Party Joined
DECISION
Tribunal Miss S A Forgie (Deputy President)
Dr E K Christie (Member)
Date 20 October, 2000
Place Brisbane
Decision The Tribunal:
1.varies the decision of the respondent dated 16 March, 2000 to grant the Party Joined, the State of Queensland, Permit G99/194 by making it a condition of the grant of that permit that the Environmental Impact Management Plan provide:
(1)that a study be undertaken to establish baseline data regarding the concentrations of nitrite-nitrogen, ammonia-nitrogen, total phosphorous, orthophosphate, copper and chlorophylla in relation to the waters of Nelly Bay; and
(2)that concentrations of nitrite-nitrogen, ammonia-nitrogen, total phosphorous, orthophosphate, copper and chlorophylla in relation to the waters of Nelly Bay be monitored; and
2.otherwise affirms the decision.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 19 April, 2000, the applicant, North Queensland Conservation Council, applied for review of a decision of a delegate of the respondent, the Great Barrier Reef Marine Park Authority ("the Authority") dated 16 March, 2000. The decision affirmed an earlier decision made by another delegate and dated 14 January, 2000. That earlier decision was to grant permission to the State of Queensland ("the State") through the Department of Natural Resources ("DNR") to carry out certain works associated with reclamation, harbour works, dredging and excavation works and construction and installation of associated facilities including jetties and pontoons at Nelly Bay on Magnetic Island. Prior to the hearing of the application, both the State and Nelly Bay Harbour Pty Ltd ("Nelly Bay Harbour"), which is the preferred developer, were joined as a party to the proceeding. During the course of the hearing, an application was made by Mr William (Billy) Peter Tait to be joined as a party. His application was refused on 11 September, 2000.
At the hearing, NQCC was represented by Mr Keim of counsel, the Authority by Mr Durwood SC with Mr Fellows of counsel, the State by Mr Fraser QC with Mr Plunkett of counsel and Nelly Bay Harbour by Mr Pope of counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents") were admitted in evidence together with a number of documents to which we have referred in the course of considering this matter. Evidence was given by Professor Duncan and Dr Miller in support of NQCC's case. Mr Irvine, Mr Brodie, Mr Cook, Mrs Honchin, Mr Koskela and Dr Marshall gave evidence on behalf of the Authority, Captain Wood, Dr Benson and Dr Kettle gave evidence on behalf of the State and Mr Wilkie, Mr Curtain, Mr Hudson and Mr Allen gave evidence on behalf of Nelly Bay Harbour.
THE ISSUES
Several issues were raised by NQCC during the course of the hearing. In some aspects, the nature of those issues and the manner in which they were argued were more reflective of a judicial review process than of a merits review process. This Tribunal is, of course, only able to undertake the latter. Inherent in a merits review process, though, is a consideration of the legality of certain courses of action as well as a consideration of the merits of taking those courses. Therefore, although framed to some extent in terms of issues for judicial review, we have considered issues of legality in the context of our undertaking a merits review. The issues are:
whether DNR properly made its application for a relevant permission;
whether, leaving aside considerations relating to the merits of its decision, the Authority properly considered DNR's application;
whether the Authority's decision was ultra vires in that it was made for an improper purpose or was uncertain;
whether or not the Authority's decision has permitted the boundaries of the Great Barrier Reef Marine Park ("Marine Park") to be altered so that it is reduced in area contrary to law;
whether or not the Authority's decision permits DNR to carry on operations for the recovery of minerals;
whether or not account had been taken of the precautionary principle;
whether or not feasible and prudent alternatives had been considered; and
whether or not appropriate consideration had been given to issues relating to water quality in relation to Nelly Bay and the Marine Park.
THE WITNESSES
Mr Geoffrey Brian Allen
Mr Allen, who is an accountant and group financial controller, has employed by Curtain Brothers (Qld) Pty Ltd as its Financial Controller since January, 2000. He gave both oral and written evidence (Exhibit NB7).
Dr Lee Jeffery Benson
Dr Benson is a Senior Executive Scientist employed by Sinclair Knight Merz Pty Ltd, which is a firm of consulting engineers, scientists and planners. He worked as Project Manager to the Queensland Department of State Development (formerly the Department of the Premier, Economic and Trade Development) to produce the draft, supplementary and final environmental impact statements. Dr Benson holds from the James Cook University, a Bachelor of Science (Marine Biology, Zoology) degree, a Bachelor of Science (Zoology)(Honours) degree and a Doctor of Philosophy. He has experience in project management, aquatic ecology and the supervision, design and conduct of environmental monitoring programmes and impact assessment studies. Dr Benson gave both oral and written evidence (Exhibit Q1).
Mr Jon Edward Brodie
Mr Brodie is Director of Water Quality and Coastal Development Group at the Authority. Within the Authority, that group provides policy and scientific advice and management regarding water quality issues in the Marine Park. Mr Brodie holds a Bachelor of Science degree from the University of Sydney with majors in Inorganic Chemistry and a third year major in mathematics. He also holds a Master of Science degree from the James Cook University obtained by research in environmental chemistry. Over the years, he has held a wide range of academic, research, analytical and management positions. Mr Brodie gave both oral and written evidence (Exhibit 9).
Mr Clive Robert Cook
Mr Cook is currently the Regional Service Director of the Queensland Parks and Wildlife Service ("QPWS"), Northern Region. Formerly, he was the Manager, Environmental Impact Management, at the Authority and had held various other positions during his six year career with that body. He holds a degree of Bachelor of Urban and Regional Planning and majored in natural resource management. Mr Cook gave both oral and written evidence (Exhibit 4).
Mr Peter Anthony Curtain
Mr Curtain is a civil engineer employed by Curtain Brothers (Qld) Pty Ltd. He is the Construction Engineering Manager for the Nelly Bay project. He gave both oral and written evidence (Exhibit NB6).
Professor Ronald Charles Duncan
Professor Duncan holds a Bachelor of Agricultural Economics (with Honours in Economics) and a Master of Agricultural Economics from the University of New England. He also holds a Doctor of Philosophy from the Australian National University. Professor Duncan is presently Professor of Economics at the Australian National University and is Director of the Asia Pacific School of Economics and Management as well as Executive Director of the National Centre for Development Studies. In the past, he has held various positions with the World Bank including Chief of its International Trade Division. Before joining the World Bank, he was First Assistant Commissioner with the Industries Assistance Commission. He gave both oral and written evidence (Exhibits A and B).
Mrs Carol Irene Honchin
Mrs Honchin is a Project Manager in the Environmental Impact Management Unit at the Authority. She holds a degree of Bachelor of Science (majoring in marine and freshwater zoology and ecology) from the University of Adelaide. She has been employed for some nine years in various positions with the Authority.
Mrs Honchin was the designated project manager for the Nelly Bay project and has been responsible for its day to day management since May, 1999. Previously, Mr Clive Cook had been responsible. She gave both written evidence in her affidavit (Exhibit 12) and oral evidence.
Mr Kenneth Arthur Hudson
Mr Hudson is a civil engineer with thirty years' experience. He is employed as the Senior Project Engineer by Nelly Bay Harbour. He gave oral evidence about the construction phase of the marina at Nelly Bay.
Mr Duncan William Irvine
Mr Irvine is a Consulting Geo-Scientist and director of Duncan Irvine & Associates Pty Ltd, which has provided services to the Authority as the Environmental Site Supervisor for the Nelly Bay project. He has a Bachelor of Science degree from the Rhodes University in South Africa and majored in Geology and Botany. Mr Irvine's professional experience is in the fields of hydrogeology, groundwater flow modelling, engineering geology, environmental site assessment and exploration geology.
In relation to the Nelly Bay project, Mr Irvine conducted a review of the Construction Management Plan element of the Environmental Impact Management Plan ("EIMP", T documents, pages 00150-11-000150-76) and of the supporting technical reports. Mr Irvine gave both oral and written evidence (Exhibit 3).
Dr Brett Thomas Kettle
Dr Kettle is a Marine Scientist who graduated in 1984 with a Bachelor of Science degree with Honours majoring in zoology. He obtained his PhD in 1991 from the James Cook University. He has 16 years postgraduate experience in Australia and in the Asia-Pacific region in the management of multi-disciplinary environmental studies. Dr Kettle has specific skills in marine environmental planning and assessment, monitoring and management, experimental design, survey techniques, marine ecology and emergency response. He gave both oral and written evidence (Exhibit Q4).
Mr Riku William Koskela
Mr Koskela is a Marine Biologist who holds a degree of Bachelor of Science from the Queensland University of Technology where he majored in ecology. He has submitted a doctoral dissertation in marine biology. He is currently an employee of Gutteridge Haskins and Davey Pty Ltd and works in its Water and Environment Division. In the past, he has been a private consultant specialising in water quality and statistics and has worked for the CSIRO in its Division of Marine Science. Mr Koskela gave both oral and written evidence (Exhibit 16).
Dr Paul Augustine Marshall
Dr Marshall is the Project Manager, Research and Monitoring Coordination at the Authority. His responsibilities include the management of major, multi-disciplinary marine monitoring programmes aimed at ensuring minimal environmental impacts from major residential and public infrastructure. He holds a Bachelor of Science degree (with Honours) from the University of Melbourne and his doctoral thesis is entitled "Physical disturbance in coral reefs: biology, ecology & management implications". Dr Marshall also holds a Certificate in Marine Conservation Biology and Policy from the Duke University Marine Laboratory. He gave both oral and written evidence (Exhibit 15).
Dr Gregory John Miller
Dr Miller is the Director and Environmental Consultant of Envirotest. He holds a Bachelor of Applied Science from the Queensland University of Technology, a Master of Philosophy degree obtained by research from Griffith University and a Doctor of Philosophy from Griffith University. His thesis was entitled "Health and Environmental Risk Assessment: Process, Application and Resolution". He has held analytical and teaching positions before becoming a consultant. Dr Miller has extensive experience in residue chemistry, pollution impact studies, exposure and risk assessments in marine, freshwater, contaminated land and built environments. He gave both oral and written evidence (Exhibits C and D).
Mr Dawson Wilkie
Mr Wilkie has been the Director of Engineering Services at the Townsville City Council since December, 1998 and previously held other positions with the council. He gave both oral and written evidence (Exhibits NB3 and NB4).
Captain Christopher Ian Wood
From February, 1999 to August, 2000, Captain Wood was the Regional Harbour Master (Townsville); first on an acting and then on a substantive basis. In that position, he was responsible for the effective management, direction and coordination of overall Regional Maritime Operations within the coastal area of Queensland from Dalachy Creek, north of Cardwell, to Gloucester Island, south of Bowen. That coastal area includes Magnetic Island and its surrounding waters.
Captain Wood also holds a Certificate of Competency as Master Class 1 and has a valid pilots licence for the major ports in the region. He has extensive experience in shipping and port commercial practice as well as extensive knowledge of Queensland ports and pilotage and maritime safety issues. His experience has been gained in various positions in the Queensland Pilot Service, as a shipping inspector, an examiner and marine surveyor with Queensland Transport, as a marine surveyor with Australian Maritime Safety Authority and as a harbour master in various harbours. Prior to his working in Australia, he had gained a wide experience in various positions in the maritime industry in Europe. His affidavit and the memoranda to which he referred became Exhibits Q2 and Q3.
BACKGROUND
A number of factual matters forming the background to the application in this matter were not in dispute among the parties. In view of that, and based on the material admitted in evidence, we set out our findings of fact on those matters.
Nelly Bay and its setting in the Great Barrier Reef Marine Park and in the Great Barrier Reef World Heritage Area
The Marine Park was established in accordance with s. 30 of the Great Barrier Reef Marine Park Act 1975 ("the Act"). It comprises those areas, which are in the Great Barrier Reef Region and which have been declared by Proclamation made under s. 31 to be part of it. The Great Barrier Reef Region is defined in s. 3 of the Act but that definition excludes from it an area referred to in s. 14 of the Seas and Submerged Lands Act 1973 and an island, or part of an island, that forms part of Queensland and is not owned by the Commonwealth. The areas declared to be part of the Marine Park are known as the Cairns Section, Central Section, Far Northern Section and the Mackay/Capricorn Section. Magnetic Island, of which Nelly Bay is a part, comes within the Central Section.
The Governor-General may also, by Proclamation, revoke or amend and earlier Proclamation. He or she may not do so unless a motion has been passed by both Houses of Parliament and unless the Executive Council has considered a report by the Authority in relation to the matter. (ss. 31(3), (4) and (5))
The Great Barrier Reef Region comprises an area of approximately 34, 870,000 hectares of seabeds, reefs, islands and seas stretching for approximately 2,000 kilometres along the Queensland coast from the tip of Cape York Peninsula in the north to Fraser Island in the south. Since 14 May, 1991, it has been listed on the Register of the National Estate and its description on that Register reads, in part:
"The reef is not a continuous barrier but a broken maze of coral reefs, some with coral islands called cays. The reef comprises 2,500 individual reefs which range in size from less than 1ha to more than 10,000 ha, and in shape from flat platform reefs to elongated ribbon reefs. Most reefs are submerged, with some being exposed at low tide. Individual reefs are composed of accumulated remains of plant and animal skeletal material made of calcium carbonate, supporting a veneer of living plants and animals.
The reef is the worlds (sic) largest and most complex expanse of coral reef, encompassing many unique forms of marine life. There are over 1,500 species of fish, exhibiting a variety of size, shape, colour and behaviour. 400 species of coral in sixty genera. Other well represented groups included 4,000 species of mollusc as well as foraminifera, echinoderms, crustaceans, polychaete worms and ascidians. Six species of turtle are found in the area; the green, leatherback, flatback, loggerhead, hawksbill and Pacific Ridley. Areas of the reef are nesting sites of world importance for the green and loggerhead turtles. All turtles are protected species under Commonwealth and Queensland legislation. Whales, dolphins (Mysticeti, Odontoceti) and dugong occur in the area and are all protected. The reef also supports a wide range of fleshy algae and sea grasses which are an important food source for grazing animals.
The cays and islands support 242 species of birds. These include forty species of sea birds, twenty one of which have breeding colonies in the area.
About thirty wrecks of historic importance are known to occur in the area. One of the earliest, the wreck of the HMS Pandora dates from 1791 and lies near the reef in the northern sector to which it gave its name. In the central sector is the well-preserved wreck of the SS Yongala which sank with the loss of 122 passengers and crew members in 1911. The hazards of navigation in the reef resulted in the construction of a large number of lighthouses, some of which have historical importance. Exploration of the area possibly began in the fifteenth and sixteenth century with Chinese, Spanish and Portugese (sic) visiting the area. In 1770 Captain Cook entered the waters of the Great Barrier Reef, and on 11 June his ship the Endeavour ran aground on the reef. To pull the ship off the reef Cook jettisoned non essential material. In recent years divers have recovered the anchor, a cannon and some of the ballasts jettisoned.
Significant Indigenous values are known to exist in this area. … " (Exhibit 19, Attachment 1)
The Great Barrier Reef was listed on the World Heritage List in October, 1981 on the basis that it came within the meaning of "national heritage" as defined in Article 2 of the World Heritage Convention and met all criteria as specified in the World Heritage Operational Guideline 44.
The Great Barrier Reef World Heritage Area ("GBWHA") includes the Marine Park (93% of the GBRWHA), Queensland waters not in the Marine Park (2%) and islands (5%). In so far as the GBWHA comprises the Marine Park, it is managed by the Authority pursuant to the Act. It comes within the General Use 'A' Zone. In so far as it comprises Queensland waters not in the Marine Park, it is managed by QPWS pursuant to the Marine Parks Act 1982 (Qld) ("Marine Parks Act (Qld)"). We will refer to those waters as the "State Marine Park". Continental islands, such as Magnetic Island, are managed by local government authorities.
Magnetic Island, which is a suburb of Townsville, is a large continental island located some 8 kilometres from the coast of Queensland and to the north east of the remainder of the city. In general terms, it is a triangular shape and has an area of approximately 5,184 hectares. Its central land is steep and rugged and access is difficult. Nearly half of the island comprises the Magnetic Island National Park. Approximately 4,500 hectares of the island have been listed on the Register of the National Estate (Exhibit 19, Attachment 2).
Magnetic Island has some 40 kilometres of coast line and it is dotted with a number of bays. Sand on the beaches comprises medium to coarse grained Adamite which is unique to Magnetic Island. Extensive fringing coral reefs are found off the south-west corner between Bolger Bay and Picnic Bay as well as off the south-eastern coast in Picnic Bay, Nelly Bay and Geoffrey Bay. There is also a fringing reef along the eastern shore of Horseshoe Bay on the northern side of the island. Larger stands of hard corals occur on the floors of some of the smaller bays on the south-eastern coast of Magnetic Island. All of the marine waters and tidal lands surrounding Magnetic Island have been designated as marine parks. Those waters seaward of the mean low water mark ("MLWM") as shown in the Brazier and Montti map (T documents, page 2001) form part of the Marine Park. The area between the Marine Park's boundary and the highest astronomical tide has, since 1987, been part of the Queensland Marine Parks, Townsville/Whitsunday Section.
Residential settlements of significance are located at Horseshoe Bay, Alma Bay, Nelly Bay, Picnic Bay, Bolger Bay and West Point on the eastern and southern sides of the island. Nelly Bay is the largest of these residential settlements. In 1995, 61 hectares of land were zoned for residential or future urban use. A further 26 hectares were flagged for compatible uses. A commercial passenger ferry service operates to the Picnic Bay Ferry Terminal. A second commercial ferry service carries vehicles and passengers to the Arcadia Vehicle Barge and Passenger Terminal in Geoffrey Bay. Decisions regarding planning at Magnetic Island are made in the context of the Magnetic Island Management Plan ("MIMP") adopted by the Townsville City Council ("TCC") in 1990. The MIMP was based on an analysis of the island's physical, social, environmental and recreational characteristics as well as its needs.
Nelly Bay, which is the second largest embayment on the island, is located on the south-eastern side of Magnetic Island. It extends between two rocky granite headlands with Bright Point to the northeast and Hawkings Point to the south. The bay is "enclosed in an amphitheatre of granite hills, with Gustav Creek being the main drainage line." (PER, page 6, T documents, page 00000-11). There is also evidence of at least one other smaller creek having its outlet into Nelly Bay. The bay is protected from the worst of the north and northeasterly cyclonic wave action. Originally, it had a beach some 1800 metres in length but this has been reduced by about 550 metres by virtue of the work carried out as part of a marina construction in the 1980s. Much of Bright Point has been quarried for the breakwater's armour rock. Consequently, what was once a rocky granite knoll typical of Magnetic Island has now become an exposed almost sheer rock face. This change is noted in the entry on the Register of the National Estate regarding Magnetic Island when it states that "… The fringing reef in the Nelly Bay area and Aboriginal sites at Bright Point have been significantly degraded by reclamation activity." (Exhibit 19, Attachment 2)
Previous development proposals in relation to Nelly Bay
Over the last three decades, there have been various proposals to carry out work at Nelly Bay. Development of Bright Point and the northern end of Nelly Bay was first proposed in 1971. At that time, approval was given for a 100-bed hotel, breakwater and marina but the proposal did not proceed. In 1974, the land was sold to another developer, who proposed a larger development extending along the beach to Gustav Creek. That proposal did not proceed. In 1983, the TCC issued a permit for home units and building on the site but work did not proceed.
In late 1983, a further development was proposed by Magnetic Keys Limited. It became known as Magnetic Keys and involved the development of a tourist and commercial operation covering 29.8 hectares at the north-eastern end of Nelly Bay. Construction of 780 metres of breakwaters and reclamation of approximately 10 hectares of tidal flats was required to complete the development. Approximately 400,000 cubic metres of material had to be dredged to form the marina basin. A concept plan of the proposed development showed very extensive break walls with residential development on them (Exhibit 5). That plan did not show the location of the low water mark but it was clear that the proposed development was to be placed partly in the Marine Park within the responsibility of the Authority and partly in the marine park within the responsibility of the State. Consequently, approvals were required from both the Authority and from the relevant State authorities before it could proceed.
An Impact Assessment Study was prepared in 1986 in accordance with the StateDevelopment and Public Works Organisation Act 1971-1981 (Qld) ("State Development Act"). In so far as the development was proposed in areas within its responsibility, the predecessor of the DNR, the Department of Lands, approved the development. It did so in May, 1986. The Geology Department of the James Cook University made preliminary geo-technical investigations of the site.
On 13 April, 1987, an application was made on behalf of Magnetic Keys Limited to construct and operate a marina at Nelly Bay. It had modified its previous proposal so that the only reclamation occurring in the Marine Park was in the form of island breakwaters that were separated from the Magnetic Island coastline (Exhibit 6). The breakwaters and the marina were within the boundaries of the Marine Park.
The anthropological status of the site was examined in March, 1988. In so far as the development was proposed in areas within the Authority's responsibility in the Marine Park, the then Commonwealth Minister for the Arts, Sport, the Environment, Tourism and Territories ("Minister for Environment") directed the preparation of a public environment report ("PER"). He did so on 5 April, 1988 in accordance with the Environment Protection (Impact of Proposals) Act 1974 ("EPIP Act"). The PER was prepared and placed on public review between 18 May and 15 June, 1988. Submissions were received and considered by the then Department of the Arts, Sport, the Environment, Tourism and Territories ("DoE"). The relevant functions are now performed by Environment Australia. DoE prepared for the Minister for Environment an assessment of the PER and the subsequent submissions. In DoE's assessment, insufficient information had been presented to enable an adequate assessment to be made of the likely environmental impacts of the proposal. Accepting its advice, the Minister for Environment recommended that further baseline and modelling information would be required to ensure that there were no overriding environmental reasons for not granting permits approving the Nelly Bay project.
In October, 1988, the Authority assessed Magnetic Keys Limited's application. Magnetic Keys Limited had submitted further information in August, 1988 regarding its proposal (T documents, pages 00000-7-00000-10). It proposed that its principal objective was to provide a safe all-weather port and harbour for Magnetic Island. In doings so, it proposed to develop a fully coordinated resort complex with tourist and retail facilities in association with the marina development. The marina would make provision for approximately 150 boats in floating berths, a floating pontoon ferry terminal, a barge ramp and two swimming beaches with one enclosed with a stinger net. A total area of 16.1 hectares was involved in the reclamation of two island breakwaters (3.8 hectares) and dredging of the marina basin and channel to a depth of 4 metres (12.3 hectares). The channel was approximately 250 metres long and 45 metres wide.
On 7 October, 1988, the Minister for Aboriginal Affairs wrote to the Authority declining to make a declaration of site protection pursuant to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Pursuant to then r. 13AF (since renumbered r. 22) of the Great Barrier Reef Marine Park Regulations ("the Regulations"), the Authority granted Permit G88/462 on 28 October, 1988 to Magnetic Keys Limited to construct a marina and associated infrastructure within the Marine Park (T documents, pages 0000-43-0000-48). That permission was granted subject to certain conditions designed to limit environmental damage.
On 24 May, 1989, the QPWS issued Permit Q88/462 to Magnetic Keys Limited. Under the terms of that permit, which expired on 24 May, 1991, Magnetic Keys Limited was permitted to develop a marina and tourist facilities. In doing so, it was permitted to build a harbour, reclaim land and undertake other works as well as the construction of mooring facilities for vessels, tourist facilities and other structures.
Work commenced in June, 1989 but was suspended on a number of occasions during the course of applications to review the approvals and permissions given by the State and the Authority. The application made to this Tribunal to review the Authority's permission was withdrawn on 23 March, 1990 (Island Voice and Great Barrier Reef Marine Park Authority Q1989/116) as were applications made to the Local Government Court in Queensland. Magnetic Keys Limited ceased work on the development in September, 1990 and was placed in receivership in December, 1990.
In April, 1991, the Authority issued Permit G90/494 (renewal) to Magnetic Keys Limited. A year later, in April, 1992, Magnetic Keys Limited surrendered its special lease over the site to the State. The Authority has since carried out some stabilisation works at Nelly Bay to ensure the integrity of the existing sheet steel piling at the breakwaters and to promote tidal flushing of the marina basin. Otherwise, the site has remained untouched following the cessation of work by Magnetic Keys Limited.
Picnic Bay, Magnetic Island
Picnic Bay is located on the south-eastern corner of Magnetic Island. It is fully exposed to the prevailing south-easterly winds and to the swell common to Townsville. A jetty is located at Picnic Bay and a private commercial ferry service operates regular scheduled trips to it. Since 1 November, 1973, the Picnic Bay jetty has been owned by the TPA, which manages its general maintenance. The TPA funds that maintenance by means of a levy of $0.18 per passenger on each trip to and from Picnic Bay. Those funds are placed in the Picnic Bay Jetty Maintenance Reserve account. Ongoing maintenance of the jetty costs in the order of $70,000 each year and the levy raises approximately $60,000.
Ferry service operators using the jetty are responsible for the embarkation and disembarkation of their passengers. Section 30 of the Transport Operations (Marine Safety) Act 1994 (Qld) imposes general obligations for safety on people in the maritime industry including the owners and operators of vessels. On 18 November, 1998, a Workplace Health and Safety Improvement Notice was served on Captain Wood as the Regional Harbour Master (Townsville) (Exhibit Q3). It advised him that, in the opinion of the inspector, Queensland Transport Services was in contravention of s. 30(1)(c) of the Workplace Health and Safety Act 1995 (Qld) and that he was required to remedy the contravention before 31 May, 1999. Particulars of the contravention were that it had not ensured that there was appropriate safe access to and from the workplace for persons other than its workers. It had also not ensured that there was an appropriate safe access to and from the wharf and vessels using the wharf for persons other than its workers. Captain Wood responded by providing stair chairs and a basket stretcher to the Ambulance Service on Magnetic Island. He funded the purchase of that equipment from his regional budget.
Studies and scientific reports after issue of Permit G88/462 and prior to the issue of the draft EIS relating to the current development proposal in Nelly Bay
Date Report/Study Description
March, 1989 (T documents, pages 00150-77 –00150-175) Magnetic Quay Water Quality and Sediment Baseline Study (JE Brodie, BD Mapstone and RC Mitchell, Australian Centre for Tropical Freshwater Research, James Cook University) Detailed sampling of marine water quality from December, 1988 until February, 1989
November, 1988-March, 1989 Artefacts collected at Nelly Bay by archaeologists from the James Cook University
November, 1990 (T documents, pages 150-176-150-234) The Magnetic Quays Project: Environmental Impacts on the Fringing Reefs of Magnetic Island (Interim Report on Surveys of the Benthic Biota) (BD Mapstone, Department of Marine Biology, James Cook University) Summarises results of second baseline survey and evaluates likely sensitivity of the study to detect real impacts on coral assemblages of south-east Magnetic Island. It also assesses consequences of construction activities between June, 1989 and June, 1990 for the fringing reefs of Nelly and Geoffrey Bays. Suggested those activities had no major adverse acute impacts on fringing reef biota up to June, 1990.
13 February, 1992 Minister for Environment commissions review of Magnetic Island Marina Development To become known as the "Whitehouse Report"
July, 1992 (T documents, pages 150-235-150-383) Review of the Magnetic Island Marina Development (JF Whitehouse, Dunhill Madden Butler) Investigated procedures followed by the Authority in deciding to issue Permit G88/462 to Magnetic Keys Limited and criticisms and allegations made by certain persons over the management of the project.
November, 1992 ANZECC Guidelines for primary contact (i.e. swimming etc) for median bacterial content in fresh or marine water taken over bathing season
December, 1992 (Exhibit H, page 0 0002) Picnic Bay Jetty Stage 1 Study of Improved Access for Medical Evacuation and the Disabled (LC Johnstone & Associates Pty Limited, Consulting Engineers) Report commissioned by the Townsville Port Authority to consider improved access to Magnetic Island for medical evacuations and the disabled.
July, 1994 (T documents, pages 150-384-150-492) Environmental Guidelines for Marinas in the Great Barrier Reef Marine Park (M Bugler, Authority, with assistance from Sinclair Knight and Partners) Its primary objective is to help with the implementation of environmentally friendly marinas in the Great Barrier Reef Region and complements the relevant Australian Standard. It is directed to staff of the Authority and of State and local authorities and to marina developers.
October, 1994 (T documents, pages 00150-493-00150-577) Bays of Magnetic Island Draft Management Plan (prepared by staff of the Authority and of the Queensland Department of Environment and Heritage) Prepared for the purposes of discussion and comment only. Objective to provide clear directions for conservation, recreation and resource use; a framework for management of, and a guide to, activities appropriate in each bay; and basis for assessing activities that require permit or entry and use under the Central Section and Townsville/Whitsunday Zoning Plans.
Current development proposal in relation to Nelly Bay
On 5 February, 1993, DNR's predecessor, the Department of Lands, applied for the renewal of expired Permit G90/494 to enable the completion of construction. In doing so, it set out a schedule of the construction works it intended to complete and sought an extension of the permit from 1 June, 1993 to 1 June, 1998. (T documents, pages 0001-0004). In most instances, the construction methods remained unchanged from those permitted by Permit G90/494.
In July, 1993, the Department of Lands sought expressions of interest regarding the work that should be undertaken at Nelly Bay. Expressions of interest were founded on a wide variety of bases ranging from an unfunded proposal to reinstate the site to completion of the development as originally planned. Business plans were sought together with financial arrangements and an assessment of viability. Business plans were reviewed by the Queensland Department of Business, Industry and Regional Development. On 10 August, 1994, Nelly Bay Harbour was named as the "preferred developer" to undertake work to construct the harbour at the site.
On 23 December, 1994, the Minister for Environment directed the preparation of an Environmental Impact Statement pursuant to the EPIP Act. At the same time, the Queensland Government required an Impact Assessment Statement to satisfy its environmental impact assessment procedures under the State Development Act. Both were conducted at the same time in the form of a joint Commonwealth Environmental Impact Statement/Queensland Impact Assessment Statement. At that time, the concept plan for the project showed residential allotments on a "sausage" of land extending into the harbour and two canals (Exhibit 7). Environment Australia prepared guidelines for the content of the EIS. It did so in February, 1995 while taking into account the requirements of the EPIP Act and of the State Development Act. Its guidelines set out the aims of the Environmental Impact Statement and of the public review process, the procedures to be followed, the content, the availability of the material to the public, the use of suitably qualified and experienced consultants and the structure of the EIS (T documents, pages 00351-360). The guidelines directed the proponent to:
"… bear in mind the following aims of the EIS/IAS and public review process:
to provide a source of information from which interested individuals and groups may gain an understanding of the proposal, the need for the proposal, the alternatives, the environment which it would affect, the impacts that may occur and the measures to be taken to minimise these impacts;
to provide a forum for public consultation and informed comment on the proposal; and
to provide a framework in which decision-makers can consider the environmental aspects of the proposal in parallel with economic, technical and other factors." (T documents, pages 00351-00352)
The draft Environmental Impact Statement ("DEIS") was completed by consultants, Sinclair Knight Mertz Pty Ltd ("Sinclair Knight Mertz"), in September, 1995 (T documents, pages 151-935). It was released for public review by Queensland's Department of the Premier, Economic and Trade Development from 11 October, 1995 to 22 November, 1995. Appended to it were various reports and studies it had commissioned. They included:
Date Report/Study Description
June, 1995 (Appendix B) Model of Hydrodynamic and Particle Tracking for Sediment Dispersal – Nelly Bay (LB Mason, TA Hardy and L Bode, Marine Modelling Unit, Department of Civil and Systems Engineering, James Cook University) Study sought to determine likely destinations of suspended fine sediment released into water column during construction of Nelly Bay harbour. Analyses were based on site surveys and two dimensional computer modelling procedures.
August, 1995 (Appendix C) Nelly Bay Environmental Impact Study Water Quality (Australian Centre for Tropical Freshwater Research, James Cook University) Samples taken May, 1995 and review undertaken of existing water quality data.
July, 1995 (Appendix F) A Cultural Heritage Assessment of Proposed Nelly Bay Harbour Development, Magnetic Island, North Queensland (E Hatte, Northern Archaeology Consultancies Pty Ltd) Fieldwork was conducted by 2 archaeologists with 4 members of the Wulgurukaba Aboriginal Corporation in June, 1995. Aboriginal cultural heritage material was identified and recommendations made.
July, 1995 (Appendix H) Nelly Bay Harbour Economic Impact Study (Centre for Applied Economic Research and Analysis, James Cook University) Analysed impact of project using Northern Statistical input-output tables supplied by CAERA* and the Queensland Government Statistician's Office.
September, 1995 (Appendix I) Social Impact Assessment (Sinclair Knight Mertz) Analysis conducted after scoping exercise, literature review, consultation and information dissemination, assessment of impact and consideration of mitigation, amelioration, management and monitoring.
1995 (Appendix J) Report on Potential Acid Sulphate Soils of the Nelly Bay Harbour (Land Resource Assessment and Management Pty Ltd) Addressed issues relating to both actual and potential acid sulphate within areas to be disturbed during development.
July, 1995 (Appendix K) Nelly Bay Harbour Project Thiess Contractors Pty Limited (Thiess Contractors Pty Limited) Report addressing techniques to be used in construction, current and proposed topographic profiles, construction strategies and control measures.
June, 1995 (Appendix L) Consultation Process, in Addition Social Impact Assessment including – Business Survey; Resident Survey and Others Consulted (Sinclair Knight Mertz) Assessment of responses to two questionnaires developed by CAERA* after consultation with Sinclair Knight Mertz.
* CAERA: Centre for Applied Economic Research and Analysis
In all, 215 submissions were received from members of the public regarding the DEIS and a further 9 from government agencies. In view of that, Nelly Bay Harbour undertook a review of the concept plan "… with the aim of decreasing perceived negative impacts and increasing perceived positive impacts" (T documents, page 945). One major alteration was the removal of the "sausage" of land in the proposed harbour. It had been seen as potentially being in conflict with the objectives of the CS Zoning Plan and had been an issue addressed in many of the submissions received on the DEIS. The removal of the "sausage" reduced the number of saleable allotments and so reduced the financial viability of the project. Considerations relevant to ensuring the project's financial viability led to the Queensland Government's committing itself on 12 November, 1997 to fund public works in connection with the harbour basin, entrance channel, shoreline revetments, public ferry terminal and public boat ramp in the sum of $6m. Ownership of those public works would remain in the State while Nelly Bay Harbour would cover the costs associated with the remainder of the site. In October, 1998, a Supplementary Environment Impact Study ("SEIS") was prepared by Sinclair Knight Mertz (T documents, pages 936-1148). It was released for public review between 14 October, 1998 and 25 November, 1998. In March, 1999, Sinclair Knight Mertz issued the Final Environmental Impact Study ("FEIS")(T documents, pages 1166-1425).
Following the release of the DEIS and the preparation of the FEIS, there were a number of reports of studies completed:
Date Report/Study Description
Marsh Report
1998 (T documents, pages 2198-2201) Baseline Progress Report and Revised Baseline Proposal (AM & AL Ayling, Sea Research) Prepared to provide a baseline survey for the Long Term Monitoring Program component of the Nelly Bay project monitoring project.
October, 1998 (T documents, pages 1148-1-1148-49) Guidelines for Sampling and Analysis of Lowland Acid Sulfate Soils (ASS) in Queensland 1998 (CR Ahern, Mr Ahern and B Powell, Queensland Acid Sulfate Soils Investigation Team ("QASSIT", DNR) Prepared to provide a State wide standard, sampling and analysis regime to enable accurate assessment of environmental impact prior to disturbance of acid sulphate soils. Acid sulphate soils include potential acid sulphate soils ("PASS"), sands and other material such as dredge soil.
In May, 1999, Environment Australia and the Queensland Environmental Protection Agency jointly prepared an Environment Assessment Report ("EAR") regarding the proposed development at Nelly Bay (T documents, pages 1432-1598). The main issues considered in the assessment were need and alternatives, provision of a "safe" harbour, impacts on the marine environment, impacts on natural heritage values and impacts on the Magnetic Island community. Both agencies concluded that there was sufficient information available to satisfy the object of the EPIP and that of the Development Act with respect to the proposed development. They also concluded that, provided their recommendations were implemented, the proposed development could be managed so that its environmental impacts, including those impacts on the Great Barrier Reef World Heritage Area, would be acceptable.
Following the completion of the FEIS on 31 March, 1999 and the Authority's decision to grant DNR permission to undertake works in Nelly Bay, there were further reports and studies:
Date Report/Study Description
26 April, 2000 (T documents, pages 02202-02206) Preliminary Second Baseline Progress Report (AM and AL Ayling, Sea Research) Second baseline study for the Long Term Monitoring Program component of the Nelly Bay project monitoring project conducted after the first study was interrupted by Cyclone Tessi.
May, 1999 (T documents, pages 01426-01431) Review Nelly Bay Harbour Inflow During De-watering of Marine Basin (Marine Modelling Unit, James Cook University) A response to Environment Australia's request to conduct a "desk top review" of the de-watering calculations and to consider whether a simple tidal test could more accurately determine the inflow rate.
August, 1999 (T documents, pages 1599-1616) Nelly Bay Harbour Development Wave Penetration Study-Supplementary Study of Revised Entrance Layouts and Wave Events (Sinclair Knight and Mertz) Response to Queensland Department of Transport's request to consider harbour entrance arrangements and review frequency of wave events that cause critical wave penetration into harbour from southerly and south-east generated waves.
November, 1999 (T documents, pages 01617-01638) Condition Report of Nelly Bay Harbour Breakwater for Great Barrier Reef Marine Park Authority (LC Johnstone & Associates Pty Ltd) Reported on an inspection to determine any structural damage to breakwater, assessed its current condition, established whether it complied with current structural engineering specifications for the marine environment and identified areas of the breakwater that required further investigation.
December, 1999 (T documents, pages 01639-01655 Nelly Bay Harbour Development Summary of monitoring programs undertaken at Magnetic Island between 1988-1998 (K Michalek-Wagner) Brief summary of outcomes from benthic monitoring programmes undertaken at Magnetic Island with respect to Nelly Bay harbour development between 1988 and 1998. Report focuses on potential problems associated with the data and their comparability with respect to use of all data sets as baselines for future monitoring programmes.
On 8 December, 1999, the Authority issued Permit G99/465 to the State through DNR to conduct investigative works, including geo-technical works, potential acid sulphate soils investigation, sediment testing and infiltration studies (T documents, pages 4-1-4-3).
A Permit Application Assessment Report was prepared by Ms Honchin regarding DNR's application for permission and was endorsed on 15 December, 1999 by the QPWS (T documents, pages 00005-76). Ms Honchin presented it on 14 January, 2000 to Mr John Tanzer, who is an Executive Director of the Authority. She recommended that DNR be given permission to undertake works, which she specified, for a period of 3 years.
On 14 January, Mr Tanzer decided to issue Permit G99/194. On 14 February, 2000, the Executive Director of QPWS made a decision in the same terms pursuant to the Marine Parks Act (Qld). (T documents, pages 00077-00099) The permit gave DNR permission to enter the Central Section and the Townsville/Whitsunday Marine Park for the purpose of "The carrying out of works associated with reclamation, harbour works, dredging and excavation works and construction and installation of associated facilities including jetties and pontoons." (T documents, page 00081) Those works were to be in accordance with drawings and correspondence specified in Schedule 2 to the permit. The final of those specified was:
"l) in accordance with subsequent drawing numbers as the Approval Officer may approve, in writing at a future time which are deemed by the Approval Officer to be minor amendments to drawings so far specified above." (T documents, page 00081)
Permission was also given for "The conduct of and operation of a temporary barge landing in the area between the Main Breakwater and the Wave Dissipator at the Precinct 5 end of the development, where these features are shown on Plante and Associates – Architects and Project Managers Drawing Number 1436-S4 rev. D." (T documents, page 00081)
The permission given to DNR was dependent upon its executing a deed in the form annexed to Permit G99/194. Clause 4 of that deed required it to prepare, or have prepared, an EIMP consisting of, as a minimum, the following elements: Construction Management Plan; Stormwater Management Plan; Community Consultation Plan and Impact Monitoring Plan (T documents, page 00087). That plan could be prepared and approved in stages (clause 4.3) and it was to be approved by the Approval Officer (i.e. a person delegated by the Authority – clauses 4.4 and 1.1). Work was to be carried out in accordance with that plan (clause 4.4). Clause (8) specified that the plan had to be prepared in accordance with the terms of the deed and with a document, which was annexed to the permit and entitled "Nelly Bay Harbour Development: Guideline for the Development of the Environmental Impact Management Plan" (T documents, page 00078).
The procedure for the approval of each element of the Environmental Impact Management Plan was set out in the deed:
"For each element of the Environmental Impact Management Plan (other than the Impact Monitoring Program):
(i)The Permittee shall provide to the Authority, a draft of each element of the Environmental Impact Management Plan;
(ii)The Authority will seek expert reviewer comments upon each element of the Environmental Impact Management Plan;
(iii)The Authority will use its best endeavours to provide the comments of the Authority and the expert reviewers to the Permittee within sixty (60) days of receipt of the draft Environmental Impact Management Plan (and where the draft Environmental Impact Management Plan is provided in stages, within sixty (60) days of receipt of each stage);
(iv)The Permittee shall then provide to the Authority a final of the Environmental Impact Management Plan for the Authority's approval;
(v)The Approval Officer, on behalf of the Authority, shall at his or her sole unfettered discretion approve the Environmental Impact Management Plan (or if submitted in stages, that stage of the Environmental Impact Management Plan) or recommend further corrections or amendments to the Environmental Impact Management Plan (or if submitted in stages, that stage of the Environmental Impact Management Plan)." (T documents, pages 00087-00088)
Clause 4.2 of the deed required that the Impact Monitoring Program be prepared independently of the DNR and set out in clause 4.5(b) the manner in which that was to be achieved (T documents, pages 00087-88). The Authority selected a Monitoring Consultant to prepare and implement the Impact Monitoring Program and DNR undertook to pay all costs of his or her selection and his or her ongoing costs as well as those of the implementation of the Impact Monitoring Program. The Authority also selects an Environmental Site Supervisor. That person is contracted to the Authority but his or her costs are paid by DNR.
Since Permit G99/194 was granted, there have been several reports or studies:
Date Report/Study Description
February, 2000 (T documents, pages 01656-01709) Draft Report on Sampling and Testing for Acid Sulphate Soils Proposed Nelly Bay Harbour Magnetic Island, Queensland (Golder Associates Pty Ltd; prepared on behalf of Curtain Bros.) Report of an acid sulphate soil investigation for proposed Nelly Bay harbour including an evaluation of the soil profile in areas proposed for excavation and a preliminary evaluation of the presence of acid sulphate soils. Investigations limited to portions of site enclosed by seawalls and did not extend to the entrance channel. They did not comply with QASSIT guidelines.
March, 2000 (T documents, pages 01710-01762) Draft Report on Geotechnical Studies Nelly Bay Harbour Development Magnetic Island, Queensland (Golder Associates Pty Ltd, prepared on behalf of Curtain Bros.) Reported on geotechnical studies to outline geotechnical constraints and performance of the proposed design with regard to the settlement of filled areas, stability of revetments and embankments, foundation conditions at the proposed bridge site and strata permeability. In order to complete the report, sediment sampling and testing and water sampling and testing were undertaken as well as unconfined compressive strength testing on soils stabilised with varying agents.
March, 2000 (T documents, pages 01763-01811) Addendum Report on Geotechnical Investigation Proposed Revetments Nelly Bay Harbour Development Magnetic Island, Queensland (Golder Associates Pty Ltd; prepared on behalf of Curtain Bros.) Supersedes previous report regarding revetments and presents results related to the then current design.
May, 2000 (T documents, pages 01812-01830) Review of 'Draft Report on Sampling and Testing for Acid Sulfate Soils Proposed Nelly Bay Harbour, Magnetic Island, Queensland' (C Ahern, QASSIT, DNR, prepared at request of Authority) Reported that draft report contains insufficient sampling, laboratory analyses and interpretation to make firm decisions on acid sulphate soils, distribution and location.
19 May, 2000 (T documents, pages 02136-02513) Plume Modelling (PV Ridd and AR Orpin, Marine Geophysical Laboratory, School of Mathematical and Physical Sciences, James Cook University) Presents a model to enable specific trigger levels of suspended sediment concentration in dewatering discharge to be determined.
29 May, 2000-09-30 (T documents, pages 02207-02215) Interim Data Report on Baseline Turbidity Data Nelly and Geoffrey Bay, Magnetic Island, April and May 2000 (PV Ridd and AR Orpin, Marine Geophysical Laboratory, School of Mathematical and Physical Sciences, James Cook University) Turbidity data was gathered at four sites in Nelly Bay and Geoffrey Bay as part of a project to gather baseline environmental data before construction work began on Nelly Bay harbour.
31 May, 2000-09-20 (T documents, pages 1831-1847) Draft Trigger Levels and the Reactive Monitoring Program Nelly Bay Harbour – Impact Monitoring Program Sets out the structure of the Reactive Monitoring Program and the use of Trigger Levels.
June, 2000-09-20 (T documents, pages 02216-02315, draft report at T documents, pages 01848-01940) Catchment Study – Gustav Creek, Magnetic Island (A Cairns, Mr Richards and G Lukacs, Australian Centre for Tropical Freshwater Research ("ACTFR")) Report commissioned by TCC after catchment management study recommended in FEIS and endorsed by Queensland Department of State Development. In part, it collated, assessed and analysed all environmental, town planning and engineering data for catchment; assessed how creek and land use in its catchment may affect and interact with the proposed development; and assessed possible management/mitigation strategies for catchment land uses.
June, 2000 (T documents, pages 01941-2000) Report on Acid Sulphate Soils Investigation Proposed Nelly Bay Harbour Magnetic Island, Queensland (Golder Associates Pty Ltd; prepared on behalf of Curtain Bros.) Final report. Investigations did not comply with QASSIT guidelines.
June, 2000 (T documents, pages 02351-02406) Nelly Bay Harbour Development Impact Monitoring Program Design of Monitoring Program (Gutteridge Haskins and Davey Pty Ltd) The Impact Monitoring Program ("IMP"), that is part of the EIMP, presented a staged approach to monitoring based on baseline surveys and routine conformance monitoring activities that are supplemented with intensive reactive monitoring during periods when environmental risk is high or when development activities are non-compliant with agreed thresholds.
June, 2000 (T documents, pages 02326-02350) Trigger Levels for Reactive Monitoring Companion document to the Nelly Bay Harbour Impact Monitoring Program The Reactive Monitoring Program ("RMP") is a subset of the IMP to provide information to enable impacts to be predicted or detected as they occur. The results obtained in the RMP are compared against predefined thresholds and those thresholds are set to trigger predetermined management responses.
8 June, 2000 (Exhibit 11) Final Report on Baseline Turbidity Data Nelly and Geoffrey Bay, Magnetic Island (PV Ridd and AR Orpin, Marine Geophysical Laboratory, School of Mathematical and Physical Sciences, James Cook University)Turbidity data was gathered at four sites in Nelly Bay and Geoffrey Bay as part of a project to gather baseline environmental data before construction work began on Nelly Bay harbour.
REGULATORY FRAMEWORK
Great Barrier Reef Marine Park Act 1975
The Authority was established by the Act (s. 6). It is responsible for the management of the Marine Park (s. 7(1B)) and has been given a number of specific functions relating to the Marine Park. Those functions are conferred either by the Act or by the Great Barrier Reef Marine Park Regulations ("Regulations") made under s. 66 of the Act. The Authority must "… perform its functions in accordance with any general directions given by the Minister not inconsistent with …[the] Act." (s. 7(2)).
As soon as possible after an area has been declared to be part of the Marine Park, the Authority is required to prepare a zoning plan in respect of that area (s. 32(1)). Before doing so, the Authority must give public notice of its intention and invite submissions (s. 32(2)). It must give due consideration to any representations it receives in accordance with that notice (s. 32(3)).
The zoning plan must provide that, for the purposes of the Act, the area constitutes either a single zone or is divided into two or more zones described in the plan (s. 32(4)). In respect of a zone, s. 32(6) provides that "… a zoning plan shall make provision with respect to the purposes for which the zone is to be, or may be, used or entered." In making that provision, the Authority must have regard 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." (sub-section 32(7))
As we have said, Magnetic Island comes within the Central Section. The Great Barrier Reef Marine Park - Central Section Zoning Plan ("CS Zoning Plan") has been prepared by the Authority in accordance with the Act. The CS Zoning Plan came into force in 1984 after being gazetted on 15 October, 1984. The Central Section has been divided into six zones: General Use 'A' Zone, General Use 'B" Zone, Marine National Park 'A' Zone, Marine National Park 'B' Zone, Scientific Research Zone and Preservation Zone (CS Zoning Plan, Part 1, paragraph 2 and Schedule, T documents, T0000-1). The objectives of each zone specified in the CS Zoning Plan are:
General Use 'A' Zone "To provide opportunities for reasonable general-use consistent with the conservation of the Great Barrier Reef Marine Park" (Part 2, clause 5.1)
General Use 'B' Zone "To provide for the conservation of the Great Barrier Reef Marine Park while providing opportunities for reasonable general-use in areas that are free from trawling and generally free from shipping." (Part 2, clause 6.1)
Marine National Park 'A' Zone "To provide for the protection of areas of the Great Barrier Reef Marine Park while allowing opportunities for their appreciation and enjoyment by the public, including the limited removal of natural resources." (Part 2, clause 7.1)
Marine National Park 'B" Zone "To provide for the protection of areas of the Great Barrier Reef Marine Park while allowing opportunities for their appreciation and enjoyment by the public, free from activities that remove natural resources." (Part 2, clause 8.1)
Scientific Research Zone "To provide for the protection of the Great Barrier Reef Marine Park while allowing opportunities for authorised research to be carried out free from disturbance from other human activities." (Part 2, clause 9.1)
Preservation Zone "To provide for the preservation of the Great Barrier Reef Marine Park in their natural state undisturbed by human activities." (Part 2, clause 10.1)
Nelly Bay comes within the General Use 'A' Zone.
Also provided for in the CS Zoning Plan are designated areas. Those designated areas fall within the zones otherwise provided for "… where specific management conditions may be applied, for example, to regulate activities in heavily used areas to provide for public safety or to enable resource stocks to recover. Other activities that may require specific provisions are: shipping, defence training exercises and scientific research." (Clause 2) The designated areas and their objectives are:
Replenishment Areas "To provide for the replenishment of living natural resources in heavily used areas of the Great Barrier Reef Marine Park, by restricting, for a specified period of time, activities which remove those living natural resources." (Part 3, clause 11.1)
Defence Areas "To make provision, in the interests of public safety, for control of the use of, and entry into, areas of the Great Barrier Reef Marine Park used for the conduct of defence operations." (Part 3, clause 12.1)
Shipping Areas "To make provision for the navigation and operation of ships." (Part 3, clause 13.1)
Special Management Areas "To provide for areas of the Great Barrier Reef Marine Park to be specially managed for the purposes of conservation of natural resources, undisturbed scientific research, appreciation by the public or public safety, as appropriate." (Part 3, clause 14.1)
While a zoning plan is in force in relation to a zone, s. 36 provides that:
"(1) … the Authority shall perform its functions and exercise its powers in relation to the zone in accordance with that plan and not otherwise.
(2)While a zoning plan is in force in relation to a zone, each Minister shall give all such directions and do all such things as can be given or done by him for ensuring that the Department administered by him or her and each authority of the Commonwealth in relation to which he or she has ministerial responsibilities performs the functions and exercises the powers that it has in relation to the zone in accordance with that plan."
Notwithstanding any law of the Commonwealth or of a State or Territory and subject only to the provisions of s. 38(3), "… no operations for the recovery of minerals shall be carried on in the Marine Park" (s. 38(2)). The only exception to the prohibition on those operations occurs if they are for the purpose of research and investigations relevant to the establishment, care and development of the Marine Park (s. 38(3)). The expression "operations for the recovery of minerals" is defined to include "… prospecting or exploration for minerals" (s. 3(1)).
In accordance with Part VB of the Act, the Authority may also prepare a plan of management in respect of:
"(a) one or more areas of the Marine Park;
(b)one or more species within the Marine Park or within an area or areas of the Marine Park;
(c)one or more ecological communities within the Marine Park or within an area or areas of the Marine Park." (s. 39X and see also s. 39W(1)).
The objects of a plan of management are:
"(a) to ensure, for particular areas of the Marine Park in which the Authority considers that nature conservation values, cultural and heritage values, or scientific values, are, or may be, threatened, that appropriate proposals are developed to reduce or eliminate the threats;
(b)to ensure that species and ecological communities that are, or may become, vulnerable or endangered are managed to enable their recovery and continued protection and conservation;
(c)to ensure that activities within areas of the Marine Park are managed on the basis of ecologically sustainable use;
(d)to provide a basis for managing the uses of a particular area of the Marine Park that may conflict with other uses of the area or with the values of the area;
(e)to provide for the management of areas of the Marine Park in conjunction with community groups in circumstances where those groups have a special interest in the areas concerned;
(f)to enable people using the Marine Park to participate in a range of recreational activities." (section 39Y)
Before preparing a plan of management, the Authority must have regard to the protection of world heritage values of the Marine Park and to the precautionary principle. The precautionary principle has the same meaning as in s. 3.5.1 of the Intergovernmental Agreement on the Environment, a copy of which is set out in the Schedule to the National Environment Protection Council Act 1994 (section 39Z). That principle states:
"Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:(i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
(ii)an assessment of the risk-weighted consequences of various options."
Any plan of management which the Authority prepares must not be inconsistent with any provision of the Act or any provision of a zoning plan in force for the area, species or ecological community to which the management relates (sub-section 39ZD(2)). Although a plan of management has been prepared for Whitsunday area, which is located in the southern part of the Central Section, no plan of management has been prepared for the Townsville Magnetic Island area.
A zoning plan may provide that a zone may not be used for a particular purpose except with the permission of the responsible agency within the meaning of that plan or of the Authority. If permission is required, s. 38B(1) provides that, subject to a qualification that is not relevant in the context of this case (s. 38B(2) and r. 6(2)):
"… a person must not intentionally or negligently use or enter the zone for that purpose unless:
(c)the use or entry is authorised by a permission granted or transferred to the person under the regulations, being a permission of a kind declared by the regulations to be a permission to which this section applies; or
(d)the use or entry is authorised by an authority given to the person in accordance with a condition to which such a permission is subject."
Contravention may lead to the imposition of a fine.
Clause 5.2 of the CS Zoning Plan sets out the only purposes for which the General Use 'A' Zone may be used or entered. Subject to paragraph 5.2(b), paragraph 5.2(a) sets out purposes for which that zone may be used or entered without the Authority's written permission. They include trolling, line fishing using no more than 6 hooks per line, oyster gathering, bait gathering, commercial netting and trawling. The written permission of the Authority is required for certain other purposes for which the General Use 'A' Zone may be used or entered. They are set out in clause 5.2(b) and include:
"…
(viii)the operation of a tourist or education program including the construction, operation, maintenance, demolition or removal of any associated facility;
(ix)the construction or conduct of mooring facilities for vessels;
(x)the operation of a vessel with provision for more than 8 sleeping berths in the one vicinity for more than 14 consecutive days or for more than 30 days in any period of 60 days, including the conduct of operations in or upon, or the maintenance of, that vessel;
(xi)the operation of a structure including the conduct of operations in or upon, the discharge of wastes from, or the building, assembling, fixing in position, maintenance or demolition of, that structure;
…
"(xv) the dumping of spoil or the carrying out of reclamation works, beach protection works, harbour works, road building works or any other works;
…
(xviii)any purpose not listed in this clause, consistent with the objective of the Zone."
Where the CS Zoning Plan provides that permission is required, regard must be had to s. 38B of the Act. Section 38B(1) provides that a person shall not use or enter the zone for those purposes unless a permission is granted to the person under the Regulations or in accordance with an authority given pursuant to a condition to which such permission is subject. The Regulations are concerned with the manner in which permission may be sought from, and granted by, the Authority. Only permission granted under rr. 13, 22 or 45 of the Regulations is declared to be permission to which s. 38B of the Act applies (r. 5(1)). Such permission is referred to in the Regulations as a "relevant permission" (r. 4(1)). Certain procedural steps must be followed in making an application for a relevant permission (rr. 10-13, 18-22 and 42-45).
As Nelly Bay comes within the Central Section, an application must be made under r. 18. Except when the Authority agrees to accept an oral application for the purpose of giving urgent consideration to an application, that application must be in writing (r. 18(1)). Regulation 18(2) provides that:
"An application for a relevant permission shall specify:
(a)the name and address of the person making the application;
(b)the name assigned to the Section of the Marine Park that is to be used or entered;
(c)the name of the zone and, where appropriate, the name of the designated area that is to be used or entered;
(d)the purposes for which the zone or designated area is to be used or entered;
(e)any prudent and feasible alternatives to the proposed use or entry;
(f)the proposed movement within the zone or designated area of any person proposing to use or enter the zone or designated area;
(g)the location of the use of, or entry into, the zone or designated area, including the name of any shoal, reef or island on or near which such use or entry is proposed;
(h)the period in respect of which the relevant permission is sought;
(i)the means of transport for entry into, use within and departure from the zone or designated area;
(j)the maximum number of persons (if any) to whom the applicant intends to give an authority; and
(k)such other information (if any) as the Authority may reasonably require and has requested the applicant to furnish."
Regulation 20 provides that the Authority may require the applicant for permission to give the public notice of certain matters in the Commonwealth of Australia Gazette, a Queensland newspaper and a local paper. The advertisement must set out any information reasonably required by the Authority, invite persons to lodge with the Authority written comments regarding the application and specify an address to which those comments are to be sent. The Authority may require this of an applicant for a relevant permission if it "… considers that the granting of such permission may restrict the reasonable use by the public of a part of the Marine Park …" (r. 20(1)).
While applications for permission to engage in traditional fishing, hunting and gathering require additional matters to be taken into consideration, the Authority must have regard to the following issues in considering all applications:
"(a) the objective of the zone; and
(b)the need to protect the cultural and heritage values held in relation to the Marine Park by traditional inhabitants and other people; and
(c)the likely effect of granting permission on future options for the Marine Park; and
(d)the conservation of the natural resources of the Marine Park; and
(e)the nature and scale of the proposed use in relation to the existing use and amenity, and the future or desirable use and amenity, of the relevant area and of nearby areas; and
(f)the likely effects of the proposed use on adjoining and adjacent areas and any possible effects of the proposed use on the environment and the adequacy of safeguards for the environment: and
(g)the means of transport for entry into, use within or departure from the zone or designated area and the adequacy of provisions for aircraft or vessel mooring, landing, taking off, parking, loading and unloading; and
McDonald's case has been considered in a number of cases in the Federal Court relating to jurisdictions other than social security with which it was concerned. A number, such as Australian Postal Commission v Burgazoff (1989) 10 AAR 296; Elleissy v Australian Telecommunications Commission (unreported, Federal Court, Hill J, No G836 of 1988, 14 July 1989); Barker v Australian Telecommunications Commission (1990) 95 ALR 72; Casarotto v Australian Postal Commission (1989) 10 AAR 191; (Hill J) and Commonwealth v Muratore (1978) 141 CLR 296 (Gibbs, Stephen, Jacobs, Murphy and Aickin JJ) have considered and applied its principles in relation to the compensation jurisdiction. It has also been followed in other jurisdictions as, for example, when it was followed by the Federal Court in Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291, Sweeney, Toohey Wilcox JJ) in considering s. 19(2) of the Broadcasting and Television Act 1942 (Cth). That subsection provided that the Australian Broadcasting Tribunal could make certain directions where it was "satisfied that, by reason of the confidential nature of any evidence or matter or for any other reason, it is desirable that the Tribunal should" give such directions. The Full Court said (at 297):
"We agree with the submission that it is not appropriate to approach s 19 on the basis that an onus of proof is cast upon a party seeking directions under subs (2). As was pointed out by a Full Court of this Court in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357, 368-369, it will rarely be appropriate to speak in terms of onus of proof in relation to the making by an administrative tribunal of a decision pursuant to a statutory discretion. In the present case s 19(2) provides that the Tribunal shall make directions in relation to confidentiality where it 'is satisfied that' it is desirable that it should do so. The Tribunal may reach that state of satisfaction by reason of matters put before it by a person seeking a direction under the subsection. It may reach that state of its own motion and by reason of the content of the relevant material. There is, in the strict sense of the word, no 'onus' on any one."
This judgement was followed by a differently constituted Full Court of the Federal Court in Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424, Sheppard, Beaumont and Burchett JJ).
Although these authorities were focused in the main upon whether or not there is an onus of proof on one party or the other to a proceeding, they did also discuss the powers of the decision maker, and of the administrative review tribunal, to gather relevant material relying upon its own powers. Subject of course to observing the rules of procedural fairness, it is clear that it may do so. It is equally clear that whether it does so and the extent to which it does so is, in the absence of a legislative provision to the contrary, a matter for it. The requirement that it be "satisfied" of a particular state of affairs does not place it under any particular duty to make its own investigations for its being satisfied relates to the standard of proof (which is a civil standard; Smith v Repatriation Commission ((1997) 74 ALR 537 at 547, per Beaumont J) and not to any obligation to adduce material. The standard of proof is the civil standard. To adapt the words of Woodward J in McDonald v Director-General of Social Security, there may well be a case where an "… intelligent … [applicant] could see that unless contrary material comes to light …" it is likely that his or her application will be refused. In those instances, the applicant's interests may be well served by exploring alternative proposals.
In view of these authorities and in the context of this case, it seems to us that there is no obligation upon either us, or the Authority before us, to seek out alternatives to the Nelly Bay project beyond those of "no project" or partial rehabilitation. It might be otherwise if Nelly Bay were a pristine site but its being a degraded site limits the choices that are reasonably open to us.
Returning to a feasible and prudent alternative, what is meant by "feasible and prudent"? Both Mr Durwood and Mr Keim did not disagree with the statement by the Connecticut Full Supreme Court after it had considered the judgement of the United States Supreme Court in Citizens for the Protection of Overton Park v Volpe (1971) 401 US 402; 28 L Ed 2d 136:
"'Prudent' alternatives are those which are economically reasonable in light of the social benefits derived from the activity..." (Manchester Environmental Coalition v Stockton (1981) 441 Atl Rep 2d 68 at 76)
Mr Durwood, however, submitted that a consideration of prudent alternatives was not limited to financial matters. Mr Keim submitted that the expression "social benefits" should be read broadly and that a consideration of environmental values would need to be undertaken.
In ordinary usage and in so far as they are relevant, the meanings of the word "feasible" are "… capable of being done, effected or accomplished …". "Prudent" is defined to mean "… characterised by or proceeding from prudence, as conduct, action, etc …". "Prudence", in turn, is defined, in part, to mean "… provident care in management; economy or frugality …". (The Macquarie Dictionary, 3rd edition, 1997)
Wilcox J reviewed various United States authorities in Yates Security Services Pty Limited v Keating (1990) 98 ALR 21 and he said of them that "… they only apply the words 'feasible' and 'prudent' in their ordinary meaning …" (page 58). Those cases, he continued,
"… make clear, mere economic considerations cannot determine what is 'feasible and prudent' in a statutory context such as this. If s 30(1) were so interpreted it would fail of its purpose. The most economically advantageous proposal would prevail. … a proposal ought not to be regarded as infeasible or imprudent simply because it is more costly or less profitable." (pages 57-58)
Economic considerations, although not determinative, may be relevant and may be taken into account in considering what are feasible and prudent alternatives as may commercial benefits (Friends of Hinchinbrook Society Inc v Minister for Environment and Ors (No 2) (1997) 69 FCR 28 at 74 per Sackville J and see also Australian Conservation Foundation v Minister for Resources at pages 209-210). As well as economic issues, environmental, social, technological, engineering and timeliness issues are among those that are relevant in determining feasibility and prudence (see generally Citizens of Goleta Valley at page 6 and Simmons and Others v United States Army Corps of Engineers and Others at pages 11 and 13-14). Issues such as these are relevant in determining whether there is another course of action that is consistent with any relevant laws, capable of being achieved and consistent with good care and management. In other words, they are issues relevant in determining whether there is a "feasible and prudent alternative, consistent with any relevant laws" to the particular proposal that would be permitted by the Authority's decision.
Taking first the "no project" site, we are satisfied that the existing main breakwater is complete and the marina breakwater is partially complete. The rock used as the armour appears sound but there are variations between the breakwaters as constructed and their design plans. There are some questions about the durability of the breakwaters as there is evidence of deteriorated filter cloth in parts of them. Despite that, little damage has been sustained to the breakwaters but it must be remembered that they have been used only by recreational fishermen and walkers over the past 10 years. The majority of the site has been effectively fenced off from public use for the past 10 years. In making these findings, we have relied upon the Condition Report prepared by LC Johnstone & Associates (T documents, pages 01617-01638).
Leaving the site in the state in which it has existed for the past 10 years would leave it as a degraded site. Certainly, it would limit residential development in the area and so reduce water quality issues arising from an increased population. It would not enhance the reasonable use of the site for it would remain a degraded site which is, for all practical purposes, an abandoned construction site. The breakwaters would significantly impede the natural movement of sediment from Gustav Creek.
Partial or full rehabilitation of the Nelly Bay site to achieve partial or full recovery of its former state is the second alternative. If this were to require the partial or complete demolition of the breakwaters, we are satisfied on the basis of the evidence of Dr Benson, the material in the DEIS and in the report of JF Whitehouse (T documents, pages 00150-331 and 00150-339) that this would lead to further environmental damage. That damage would result from a number of factors. There would be uncontrollable turbidity as a result of the partial or full removal of the breakwaters as settlement basins could not be utilised to control sedimentation. Sedimentation would result from the disturbance of the seabed and from the destruction of the breakwaters. It could reasonably be expected that there would be damage to nearby corals and reef habitats from the sedimentation. Partial or full demolition of the breakwaters would also lead to the destruction of coral formations and the benthic communities that have formed on the outside of the breakwaters. Advantages from a partial rehabilitation permitting some maritime activity would flow from a lower level of marine usage of the area than can be expected if a safe harbour were constructed. It might prove more attractive to some local boat users and to those wishing to use the foreshore areas for recreational purposes.
Partial or full rehabilitation would rehabilitate the site and increase its useability by the public. It would leave Magnetic Island without a safe harbour. The Nelly Bay project proposed by DNR would also rehabilitate the site and make it useable to the public even if the extent of the public's use were somewhat different. It would leave Magnetic Island with a safe harbour. Both partial and full rehabilitation and DNR's proposal would leave the site more aesthetically pleasing to a portion of the public although it may well be a different portion of the public in each case.
On the basis of the Johnstone Report on Picnic Bay Jetty Stage 1 Study of Improved Access for Medical Evacuation and the Disabled and the evidence of Captain Wood, we find that the existing facilities at Picnic Bay do not provide proper facilities for medical evacuations and for access by the disabled. Proper facilities could only be obtained if a safe harbour and other infrastructure (including wave protection and dedicated medivac facilities) were constructed at that site. We are satisfied that Picnic Bay would not be a feasible or prudent place at which to create such a harbour. Its construction would require the placement of breakwaters and that was the finding of the Johnstone Report (Exhibit H, document 0 0002) and is supported by the evidence of Captain Wood. That could only be achieved by significant damage to coral and significant water turbidity. That, in our view, is sufficient for us to conclude that it does not represent a feasible and prudent alternative to the Nelly Bay project.
We note further that there is no evidence that the State would contribute to a safe harbour at Picnic Bay all or part of the $6m in funds that it proposes to contribute to the Nelly Bay project. There is no evidence that the $6m is some form of a grant to build a safe harbour somewhere on Magnetic Island. Rather, as we have found before, the purpose of the project is site specific and it is to rehabilitate the degraded site at Nelly Bay. In view of that, Professor Duncan's evidence regarding the need to cost alternatives by means of a cost-benefit analysis does not assist us in this case.
We are satisfied that the "Input-Output Analysis" method used by DNR (T documents, pages 00736-00777) was appropriate in alerting the Authority and members of the public to the economic impacts of the project as well as the consequences to the community inherent if the project were to proceed.
Social issues, including effects on local businesses, are also relevant. The social and business impacts of the Nelly Bay project were studied as part of the DEIS process (T documents, pages 00736-777). They were also studied in the "Social Impact Assessment" (T documents, pages 00778-00851). We accept the evidence of Dr Benson that the responses to the surveys were taken into account in the final design of the Nelly Bay project. No evidence was led by NQCC as to any social impacts associated with the project.
On the basis of those studies, we find that the Nelly Bay project is likely to lead to an expected increase in the population of Nelly Bay by something over 300 persons. This is significant when the population of Nelly Bay in 1996 was 950 and the population of the whole of Magnetic Island was 2,200 (EAR, T documents, page 01558). At the same time, the TCC's 1994 Development Control Plan adopted a future likely ultimate population of 12,000 persons and its Magnetic Island Wastewater Strategy Planning Report (Exhibit NB3, Exhibit "DW1", page ii) adopted a future design population of approximately 5,000 equivalent persons in 10 to 15 years' time. In that context, the projected increase resulting from the Nelly Bay project is much less significant.
Taking all of these matters into account, we are satisfied that each of the alternatives is feasible in the sense that each can be achieved. When the economic impacts associated with the Nelly Bay project are considered relative to the social and environmental impacts, we are satisfied that the proposed Nelly Bay project is the only prudent alternative and so the only feasible and prudent alternative. We are also satisfied that the EIMP manages the risk of adverse effects occurring to a certain extent. In our view, though, it is a condition of our being satisfied that all measures that can reasonably be taken to minimise adverse effects of the Nelly Bay project have been taken, that the water monitoring programme be extended in the manner we have described below (see paragraph 221).
Water quality issues
The AHC Act imposes an obligation upon the Commission for the conservation, improvement and protection of the National Estate (s. 7(a)(i)). Given that Magnetic Island is on the Register of the National Estate (Exhibit 9) and in view of the obligations imposed upon the Authority by s. 30(2) of the AHC Act, we must consider carefully the consistency between these statutory obligations and the potential disturbance to the marine ecosystem associated with the Nelly Bay project and water quality monitoring.
We accept Dr Miller's evidence that there is wide inherent variation in the concentration of many of the nutrient and biological variables recorded in a number of baseline studies undertaken to date. This variation is a reflection of limitations of the sampling programmes used. In particular, the concentrations recorded for nitrite-nitrogen, ammonia-nitrogen, total phosphorous, orthophosphate, copper and chlorophylla are highly variable and we have concluded that they are not consistent with the scientific standard. We have also considered the ANZECC Australian Water Quality Guidelines for marine waters and marine ecosystem protection in this regard. Taking these matters into account, we have concluded that the variation in concentrations of these nutrients and biological parameters, which are recorded in the various baseline studies, is too great to provide a sufficiently accurate benchmark upon which a sound water quality monitoring programme can be based for a site on the Register of the National Estate. An additional need for accurate benchmark data is the evidence of Dr Marshall, which we accept, that the annual and perennial species are monitored in coral reef ecosystems. We are satisfied that monitoring of annual and perennial species in coral reef ecosystems warrants a more detailed characterisation of the existing concentrations of the nutrients and biological variables specified above before the operational phase of the Nelly Bay project commences. A more rigorous sampling programme should provide a more accurate estimate of the existing concentrations of these nutrients and biological variables relative to the evidence we have heard and so provide the "benchmark" or "reference levels" for monitoring water under the EIMP. We have concluded that this approach is required in order to protect the marine waters and marine ecosystem from serious environmental damage or irreversible environmental damage.
Regulation 18
As we said at the outset of these reasons, the issues were more reflective of a judicial review process than of a merits review process. Indeed, the matters to which regard must be had under r. 18 of the Regulations were not specifically addressed as such. Rather, they were addressed as part of the legal issues raised by NQCC and we have considered them in that context.
The phrase "must have regard to" which qualifies the matters to be considered in regulation 13AC(4) was considered by King CJ and Prior and O'Loughlin JJ in Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 55 LGERA 197. It was held that this phrase meant that the authority administering the Act, and making the decision, had to take into account and consider the stated matter without being bound to comply with it. It seems to us that this is the sense in which we must have regard to the matters set out in r. 18(4).
It follows from what we have said earlier, that we are satisfied that the Nelly Bay project is within the objective of the CS Zoning Plan. Studies have been undertaken regarding Aboriginal cultural and heritage in Nelly Bay and the most recent formal study was reported upon in A Cultural Heritage Assessment of Proposed Nelly Bay Harbour Development, Magnetic Island, North Queensland (E Hatte, Northern Archaeology Consultancies Pty Ltd, Appendix F to the DEIS (T documents, pages 698-721). While the Minister for Aboriginal Affairs has declined to make a declaration of site protection pursuant to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, we are satisfied that the EIMP provides appropriately for the salvage of artefacts and for the appropriate handling of any remains that may be recovered. The procedures to be followed under the EIMP have been developed in consultation with the Wulgurukaba Aboriginal Corporation.
With regard to the matters addressed by r. 18(4)(c), we are satisfied that the Nelly Bay project will define the future use for that part of the Marine Park that comes within the safe harbour. To that extent, it eliminates some future options for that part of the Marine Park. At the same time however, a whole gamut of activities currently impossible or undesirable at Nelly Bay will be available and attractive to Marine Park users. In so far as marine or ecosystems are concerned, it is apparent that Nelly Bay is but a small part of the Marine Park. That does not in itself warrant options for its future use being limited. What is relevant, however, is that it is a degraded site and that there is no evidence that, in that degraded state, it has marine or ecosystems unique to it. When regard is had to those matters, we consider that the limitations upon the options for Nelly Bay's future use are of much less consequence than might otherwise be the case. Similar considerations lead us to the same conclusion in relation to the matters regarding the conservation of natural resources of the Marine Park raised by r. 18(4)(d).
Regulation 18(4)(e) requires us to consider the nature and scale of the proposed project in relation to the existing use and amenity, and the future or desirable use and amenity, of the area. For the reasons we gave in Mohr and Great Barrier Reef Marine Park Authority (1998) 53 ALD 635, we consider the "amenity" relates to matters such as the natural and ecological processes, conservation, recreation and educational opportunities as well as to qualities such as the quiet, peacefulness and solitude that may be offered by an area. In view of our earlier findings, we are satisfied that the Nelly Bay project will not have any significant impact upon natural and ecological processes, conservation, recreation and educational opportunities. While it will have an impact upon qualities such as the quiet and solitude offered by that part of the Marine Park, the degraded nature of the site leads us to conclude that it was not a quiet and solitary place that was either sought out by many or which many conducive to their own sense of quiet, solitude and even peacefulness.
The matters raised by rr. 18(4)(f) – (j) have been addressed earlier in our consideration of feasible and prudent alternatives and of the measures that can reasonably be taken to minimise adverse effects of the Nelly Bay project. In view of that consideration and our consideration regarding the matters addressed in rr. 18(4)(a) – (d) and generally, we are satisfied that the decision of the Authority to grant Permit G99/194 was the correct or preferable decision.
For these reasons, we:
1.vary the decision of the respondent dated 16 March, 2000 to grant the Party Joined, the State of Queensland, Permit G99/194 by making it a condition of the grant of that permit that the Environmental Impact Management Plan provide:
(1)that a study be undertaken to establish baseline data regarding the concentrations of nitrite-nitrogen, ammonia-nitrogen, total phosphorous, orthophosphate, copper and chlorophylla in relation to the waters of Nelly Bay; and
(2)that concentrations of nitrite-nitrogen, ammonia-nitrogen, total phosphorous, orthophosphate, copper and chlorophylla in relation to the waters of Nelly Bay be monitored; and
2.otherwise affirm the decision.
I certify that the two hundred and twenty eight preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President) and Dr E K Christie (Member)
Signed: ..............................................
M Martinez AssociateDates of Hearing 28, 29, 30, 31 August, 2000; 1, 4, 5, 6, 7, 8, 12, 13 September, 2000
Date of Decision 20 October, 2000
Counsel for the Applicant Mr S Keim
Solicitor for the Applicant Mr L Manning
Counsel for the Respondent Mr S Durwood SC; Mr M Fellows
Solicitor for the Respondent Australian Government Solicitor
Counsel for State of Queensland Mr H Fraser QC; Mr M Plunkett
Solicitor for State of Queensland Crown Law
Counsel for Nelly Bay Harbour Mr M Pope
Pty Ltd
Solicitor for Nelly Bay Harbour Corrs Chambers Westgarth
Pty Ltd
- AGLC
- North Queensland Conservation Council and Great Barrier Reef Marine Park Authority and Ors [2000] AATA 925
- Case
- [2000] AATA 925
- Decision Date
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