Tarcoola Asparagus Pty Ltd v Minister, NSW Department of Primary Industries

[2005] NSWADT 300

CITATION:	Tarcoola Asparagus Pty Ltd v Minister, NSW Department of Primary Industries [2005] NSWADT 300
DIVISION:	General Division
PARTIES:	APPLICANT Tarcoola Asparagus Pty Ltd RESPONDENT Minister, NSW Department of Primary Industries
FILE NUMBER:	053167
HEARING DATES:	26/08/2005
SUBMISSIONS CLOSED:	08/26/2005
DATE OF DECISION:	12/16/2005
BEFORE:	Higgins S - Judicial Member
APPLICATION:	aquaculture permit - grant of permit - Fisheries Management Act - aquaculture permit - grant of permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (Aquaculture) Regulation 2002 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT P Maloney, solicitor RESPONDENT C Cory, solicitor
ORDERS:	Pursuant to s.63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the Minister is set aside and remitted to the Minister for reconsideration in accordance with the recommendations contained in this decision

Introduction

1 Tarcoola Asparagus Pty Ltd (“the applicant”) has sought review of the decision of a delegate of the Minister, NSW Department of Primary Industries (“the Minister”) to refuse its application for a class D aquaculture permit. The Minister refused the applicant’s application on the grounds that the applicant had failed to satisfy him of the following matters:-

(a) that the applicant had an appropriate commercial farm development plan: see s 146(2)(d) Fisheries Management Act 1994; and

(b) that the applicant had the expertise necessary to undertake the aquaculture successfully: see s 146(2)(e) Fisheries Management Act 1994.

2 Section 144 of the Fisheries Management Act 1994 (“FM Act”) prohibits a person from undertaking aquaculture unless that person is the holder of an aquaculture permit. Aquaculture is commonly referred to as commercial farm fishery in that the fish (including oysters) are grown in a controlled or semi controlled environment so that production can be enhanced. Applications for such permits are made to the Minister (see s.145 FM Act).

3 Unlike restricted commercial fisheries that are regulated under Part 4 Division 3 of the FM Act, Parliament has not prescribed any threshold eligibility criteria that an applicant is required to meet in order to obtain a licence (e.g. see ss. 171, 186, 194, 202, 210, and 218 of the Fisheries Management (General) Regulation 2002 in respect to the following prescribed restricted fisheries: sea urchins, ocean prawn trawling, ocean fish trawling, ocean trap and line, estuary and estuary prawn trawling). All that is that is required is the lodgement of a prescribed application form, a commercial development plan and the payment of a prescribed fee: see s.145(2) of the FM Act. And the Minister is only able to refuse the issue of an aquaculture permit on certain prescribed grounds as set out in s.146(2) of the FM Act. These grounds include the abovementioned grounds relied on by the Minister in this application. It is the applicant’s contention that its application satisfied all the necessary requirements and that neither of the abovementioned grounds have been made out and that its application has been refused on the basis that its director, Mark Welsh (“Mr Welsh”), was recently convicted of several offences under the FM Act. This was refuted by Ms Cory, who appeared on behalf of the Minister at the hearing of the application. Ms Cory conceded that as the applicant or Mr Welsh had not previously been the holder of an aquaculture permit these convictions were of no relevance in determining whether to issue or refuse to issue a permit to the applicant. Had they been holders of such a permit, and on the basis of their convictions the Minister had declared them to be “disqualified persons” under s.161 of the FM Act, this would have been a ground on which the Minister could have refused the applicant’s application (see s.146(2)(b) & (c) FM Act). Again, unlike applications for a commercial fishing licences for restricted fisheries, the Minister is given no power to refuse an application for an aquaculture permit on the basis of the applicant or an officer of the applicant having been convicted of a fisheries offence (e.g. see clause 145(1)(a) and (b) Fisheries Management (General) Regulation 2002). This may have been a legislative oversight however, for the purpose of this application it is clear that Mr Welsh’s convictions are irrelevant although on examining the history of the applicant’s application it would appear to have been of some importance in determining whether the application should be refused.

4 Accordingly, the only issues in this application are:

(a) whether the applicant has:

i) an “appropriate” commercial farm development plan (s.146(2)(d)); and/or

ii) the expertise necessary to undertake aquaculture successfully (s.146(2)(e); and

(b) if (a) is not established, whether the Minister’s discretion to refuse the applicant’s application was the correct and preferred decision.

5 The facts underlying the applicant’s application are not in dispute, however, it is necessary to set these out in some detail.

6 In the latter part of 2003, the applicant lodged a development application with the Wentworth Shire Council seeking approval to develop land for the purpose of conducting an aquaculture business (“the development application”). The land the subject of the development application was situated on the Darling River and it was and continues to be used by the applicant for its asparagus farming business. The land is owned by Mr Welsh.

7 The development application involved the construction of six fish holding ponds, set back from the high bank of the Darling River, on a portion of the land. It was proposed that these ponds were to be used for growing murray cod, silver perch and golden perch.

8 At the request of the Wentworth Shire Council (“the Council”), and in support of its development application for an aquaculture business, the applicant lodged a Statement of Environmental Effect (“SEE”) with the Council. The SEE addressed various environmental concerns as a result of the construction of the ponds, however these are of no relevance to the current application.

9 As a result of the development application, on 24 July 2004, the General Manager of the Council wrote to Adam Vey, Conservation Manager of NSW Department of Primary Industries (“the Department”) enclosing a copy of the development application and the SEE. At the time Mr Vey was located at the Albury offices of the Department. In its letter the Council requested Mr Vey to examine the development application and provide the Council with notification of his general terms of approval for attachment to the development application. Mr Vey was requested to respond to the Council by Monday, 16 August 2004. It is the Tribunal’s understanding that this request was normal procedure in that the applicant’s proposal to commence an aquaculture business required approval from the Council as well as the Minister and there are administrative arrangements in place between the respective bodies so that each are aware of any relevant development proposal that is lodged.

10 On or about 19 August 2004, Steve Boyd, Aquaculture Officer of the Department wrote to the Council advising that it was unable to make any comments as the applicant had not made an application for an aquaculture permit or paid the requisite fee in respect of such an application. At the time, Mr Boyd was located in the Nelson Bay Office of the Department.

11 On 25 August 2004, Mr Welsh, on behalf of the applicant, completed a pro- forma application form for an aquaculture permit. The application was stamped received, on 16 September 2004, by the Department in its Port Stephens offices.

12 On 22 September 2004, Steve Boyd again wrote to the Council stating that the Department supported the applicant’s application in principle, “provided that the proponent complies with current Departmental policy, such as the Landbased Aquaculture Permit Policy.” Mr Boyd went on to state that upon receiving additional information as requested in the document attached to the letter, the Department would further assess the application for a class D aquaculture permit. The additional information which was requested was as follows:

“ Additional information required by NSW Department of Primary Industries to assess Tarcoola Asparagus Pty Ltd’s class D aquaculture permit application.

Provide a cross section diagram of the ponds showing the location of any sumps or drainage structures, as well as a graded bottom sloping to a deep section sump which facilities drainage.

Note that NSW Department of Primary Industries policy requires effluent holding facilities to be a minimum twice the volume of the largest culture dam. Therefore your proposal for the construction of a dam 0.06ha in size to store effluent is not sufficient at this time. The area of this dam needs to be increased to hold a minimum volume of 5.6ML.

Indicate whether your water allocation is licensed for use in an aquaculture operation.

Your SEE indicates that you will use approximately 20ML/pa for the farm, which has a total WSPA of almost 0.9ha. NSW Department of Primary Industries recommends that farms have a minimum available water usage of 40ML/ha of WSPA. As such you may have insufficient water available to conduct intensive aquaculture in the area allocated in your application.

Provide more information in the highlighted sections of the enclosed Commercial Farm Development Plan Guideline.

Note that an inspection of the property will be required by a Fisheries Officer as part of the permit assessment by this Department. A Fisheries Officer will be in contact with you shortly to arrange a convenient time.”

13 A copy of the abovementioned letter from Steve Boyd, together with the list of additional information that was requested was forwarded to the applicant. On 14 October 2004, Mr Welsh, on behalf of the applicant, provided a response to Steve Boyd. That is, Mr Welsh sought to address each of the matters for which additional information had been sought in the letter of 22 September 2004.

14 On 25 October 2004, Dave Potter, a Fisheries Officer from the Department, conducted a site inspection assessment of the applicant’s proposal. Mr Potter recorded his assessment on a pro forma Departmental document which contains the following handwritten comments:

“19. Any other comments about the proposal :

Is relying on knowledge gained from ISHWINROO Aquaculture (next door neighbour). Applicant doesn’t appear to have good grasp of Aquaculture. Applicant has stated that he has very little previous experience in Aquaculture and has not taken any courses or any other measures to appraise himself of the knowledge required.

20 Recommendation:

That the application be withheld. The applicant appears in Wentworth Local Court on the 9/11/04 for numerous fisheries offences. I recommend that this application be withheld pending a result. Further recommendations to be made by DFD Lower Murray after court date.”

15 The fisheries charges that had been laid against Mr Welsh were dealt with on 11 November 2004 at the Wentworth Local Court. On this day Mr Welsh was convicted of three charges and placed on a 12 month good behaviour bond. On 15 November 2004, Andrew Driscoll, an officer of the Department, sent a memorandum to the aquaculture branch of the Department providing details of the offences for which Mr Welsh had been convicted and sentenced. He also recommended that:

“… on the grounds of Mr Welsh’s involvement in illegal fishing and trade, I do not believe he is a fit and proper person to be issued an aquaculture permit. Mr Welsh’s actions pose an unacceptable risk to the sustainability of wild fish populations and to the legitimate aquaculture industry. I strongly recommend that his application for an aquaculture permit be refused on these grounds and furthermore if required, that he be declared a disqualified person pursuant to section 161 of the Fisheries Management Act.”

16 On 15 November 2004 Steve Boyd in an internal memorandum said the following:

“… Mr Welsh’s permit application is vague in several areas, and his commercial farm development plan shows little thought to the project. Although expecting to invest up to $100,000 into the farm, in several instances he relies on the assistance of his neighbour an aquaculture permit holder Mr Colin Dickson. His market knowledge is also very limited, as is his grasp of the process of aquaculture.

Recommendation

It is my opinion that Mr Welsh does not have the expertise to sufficiently carry out the operation, and his commercial farm development plan is not sufficient for an intensive aquaculture operation”.

17 On 29 November 2004, Patrick Tully, Senior Fisheries Manager, Aquaculture Administration of the Department wrote to the applicant advising it that its application for a class D aquaculture permit had been refused on grounds similar to those stated in the internal memorandum of Mr Boyd referred to in para. [16] above. On the same day, Mr Tully wrote to the General Manager of the Council advising him of the decision of the Department in respect of the applicant’s application for a class D permit. The decision of Patrick Tully was confirmed by another delegate of the Minister, Ms Walker, in her internal review determination, dated 4 March 2005. In the reasons for the internal review decision, at para. [4.3 to 4.4], the following were identified as being the basis for the refusal:

(a) the Commercial Farm Development Plan did not satisfactorily demonstrate a sound understanding of the requirements of a land based aquaculture facility in NSW. It was stated that the applicant’s answers were brief and that reliance was being placed on a neighbouring aquaculture facility for assistance that included use of the knowledge and expertise and office equipment of the neighbouring aquaculture permit holder;

(b) failure to satisfy the water availability recommendation of 40 ML/Yr, as required for all class D land based aquaculture permit;

(c) failure to satisfy the requirement for an effluent pond that would be two times the size of the largest pond on the site – in this regard it was noted that the applicant’s revised plans continued to fail to meet this requirement when providing the additional information;

(d) inadequacy of the commercial farm development plans in respect to the following:

failure to address disease control adequately, in particular “the applicant’s solution to disease was to pump the water out over the asparagus on adjoining lands – showing no thought as to the health or end destination of the fingerlings/fish held in the ponds”;

the applicant’s lack of knowledge that it would be subject to the provisions of the Food Production (Seafood Safety Scheme) Regulation 2001;

contradictory responses given by the applicant in relation to the removal of the trees in the commercial farm development plan and the SEE;

the applicant’s lack of attention to detail when preparing the commercial farm development plan by stating that the vertical height from the lowest point of the project to the nearest waterway was 350 metres, which in the opinion of the internal reviewer placed the ponds at the top of the hill.

18 Ms Cory, who appeared on behalf of the Minister, relied on those matters identified by the Minister in the internal review as well as the applicant’s lack of a clear marketing strategy for its aquaculture business.

Consideration

An appropriate commercial farm development plan

19 As mentioned above, the first matter for consideration is the “appropriateness” of the applicant’s commercial farm development plan. S.145(2)(b) of the FM Act requires an applicant for an aquaculture permit to submit with its application “a commercial farm development plan describing the manner in which [it] proposed to undertake the aquaculture.” The Minister is then to determine whether the development plan submitted by the applicant is “appropriate” and if he is not so satisfied then he has a discretion to refuse the applicant’s application: see s.146(2)(d) of the FM Act.

20 S.143 of the FM Act gives the Minister power to determine plans for the development of a commercial aquaculture industry. The section also provides that a development plan may contain the objectives of the Minister in administrating of Part 6 of the Act, areas suitable for aquaculture, suitable methods for undertaking aquaculture and suitable species of fish for aquaculture (see s.143(4) of the FM Act).

21 Ms Cory advised the Tribunal that the Minister had to date not exercised his powers under this particular section. However, he had developed a policy in regard to the administration of the regulation of the commercial aquaculture industry. That policy, dated 19 August 2004 and entitled “Land Based Aquaculture Permit Policy” (“the Policy”), describes what a class C, D, E, F, G, H, and I permit involves, what each permit authorises and what is required for each permit. A class D permit authorises intensive aquaculture to be undertaken in non public waterways (see s.4 Fisheries Management (Aquaculture) Regulation 2002) and is stated in the background to the Policy to involve:

“ … intervention in the rearing process of aquatic species to enhance production through increased stocking density, the addition of supplementary feed or nutrients, protecting stock from predators and control of diseases. To ensure viability and environmental sustainability more attention needs to be placed on water availability, water treatment/reuse, effluent retention, farm design and aquaculture practice.” (See para. 3.4.1 of the Policy)

22 The body of the Policy states that a class D permit will only be assessed for purpose built or constructed ponds, intensive tanks, raceways, aquaria and floating cages (see para 3.4.2 C of the Policy). The Policy also provides that intensive grow-out and effluent storage facilities are not to be constructed in natural waterways, that intensive facilities are to have a reliable supply of good quality water with a minimum 40 ML/ha/yr, the water supply and the site is to be free from contamination, and that the facilities are to be able to be isolated for disease treatment and quarantine (see para 3.4.2 E, F, G and K of the Policy). Other areas addressed in the Policy matters such as what species may be farmed in the Eastern and Western Drainage Sites of NSW and effluent control and disposal.

23 The applicant did not dispute the contents of this Policy in so far as it related to its application. However, there was some argument as to what was included in the concept of a “commercial development plan”. It would appear that the Minister has construed the phrase to be analogous to a business plan. In my opinion it cannot be interpreted so broadly. First, if Parliament had intended it to be a business plan then it would have used those words. Accordingly, its meaning must be determine from the context in which it appears and in the context of the other provisions of the FM Act, in particular the objects of the Act as found in s.3. As I have already mentioned, the context in which the phrase appears is the regulation of the commercial aquaculture industry within NSW. In this context, as mentioned in para. [20] above, Parliament has also given the Minister the power to “determine plans for the development of the commercial aquaculture industry” (see s.143). This is clearly a power to determine a plan for the development of the various types of commercial aquaculture that is regulated under Part 6 of the FM Act. Furthermore, Parliament has prescribed what is to be contained in those plans. These are general matters as to how and where any particular commercial aquaculture is to be developed. That is, the plan is a form of framework within which the industry is to operate. It is not a plan to ascertain whether those who participate in the industry will be commercially successful. In my opinion, the concept of a “commercial development plan” is related to this provision in that it’s purpose is to require an applicant for a permit to demonstrate how its proposed aquaculture business will meet the requirements of the Ministers plan for the industry as a whole.

24 However, the Minister has not exercised his power under s.143 and formulated a plan, instead he has formulated a Policy. In my opinion, this does not alter the context in which the requirement of a commercial development plan appears. The Policy must be viewed as being similar to a plan by the Minister under s.143 and the commercial development plan of an applicant must address and satisfy those matters contained in the Policy that are relevant to the permit that is sought. It is then a matter for the Minister to determine whether the applicant’s commercial development plan is or is not “appropriate” or suitable for the type of aquaculture permit applied for. That suitability being assessed against that which is contained in the Policy.

25 In addition to the Policy, the Minister has developed guidelines for applicants for an aquaculture permit. These guidelines, entitled “Aquaculture Permit Application Guidelines for Land-Based Aquaculture Farms” (“the guidelines”), apply generally to the same classes of aquaculture permit to which the Policy applies. They set out what aquaculture is and what the objective of the Policy is to:

promote the development of a viable and environmental sustainable aquaculture industry,

outline directions for the orderly development of a professional aquaculture industry;

control the introduction, escape and culture of undesirable species;

control the introduction of disease outbreaks;

ensure that the use and reuse of water meets environmental objectives;

guide and assist compliance with government acts and regulations.”

26 The guidelines then set out who needs an aquaculture permit, the difference between an “intensive” and “extensive” aquaculture permit, a summary of those matters that an aquaculture farm is required to have (these include those matters referred to in para [22] above), how to complete an aquaculture application form (i.e. directions on what steps are necessary), the fees associated with such applications and a description of the conditions that are attached to a permit. Included in the steps necessary to complete an application form is a direction that the applicant “consider a business plan for the proposal and then complete the Commercial Farm Development Plan attached” to the application form. Consistent with the FM Act, the heading “Commercial Farm Development Plan” in the guidelines states the following:

“… Note that the economic viability of aquaculture projects remains the responsibility of the proponent. The issuing of a permit to farm fish does not imply endorsement of the commercial viability of a proposal” (see page 5 of the guidelines)

27 Ms Cory advised the Tribunal that all applicants for an aquaculture permit are provided with a copy of the Policy, the guidelines and a detailed application form to which a pro-forma commercial development plan is attached. That pro-forma plan is in the form of a series of questions on the following matters:

Product Definition

Operating Plan

Quality Assurance Plan

Farm Development Plan

Organisation and Personnel

Market Analysis

Marketing and Sales Strategy

Risk Management

Financial Forecast

28 Some of the questions, such as those relating to Product Definition, Operating Plan, Quality Assurance and Farm Development Plan are, in my opinion, relevant to the development of the industry as set out in the Policy and how the applicant’s proposed aquaculture business will fit within that development. However, I do not see how the remaining questions are of any relevance to this question. What is more surprising is that the pro-forma commercial development plan does not address matters such as a description of the facilities to be used, the available water resources and systems, disease control, pollution prevention, containment of stock and prevention of predators. These matters are included in the application form. In my opinion, for the reasons stated above, they would more appropriately be included in the commercial development plan,

29 Each of the remaining questions are clearly relevant to the question of the applicant’s commercial viability if a permit is granted, which is not a matter that the Minister is required to consider or determine. Never the less it is arguable that the Minister can ask these questions as he is given a wide power to require additional information from applicants (see s.145(4) of the FM Act). But for the reasons already stated, in my opinion they are not relevant to the determination as to whether the applicant’s plan is “appropriate” or not. Accordingly, in my opinion the applicant’s responses to market analysis and strategies is not relevant to determining whether its application is or is not “appropriate”.

30 This leaves the issues of the applicant’s plan failing to satisfy the recommended water availability, the required dimensions of the effluent pond and the adequacy of disease control. Each of these matters are substantive and if not satisfied in accordance with the Policy, the applicant’s commercial development plan is clearly not appropriate.

31 In respect of water availability, Mr Welsh’s evidence was that he had rights, by way of a licence, for 20ML/h/pa of water. The remainder he said he would purchase as needed. It was his evidence that water is always available to purchase. He had not sought to purchase licences for additional water as this was uneconomical in those times when the extra water is not needed. In response to a question as to what he would do in circumstances of a drought, he said he would purchase additional water as this is what he had done with the asparagus farm. It was also pointed out to him that in times of drought the cost of water also increased, to which he responded that he would adjust the number of fish he held in the ponds and thereby reduce the amount of water that was needed.

32 In my opinion, it is sufficient for the applicant to show that it has access to the prescribed amount of water per year. It was Mr Welsh’s uncontested evidence that he had such access.

33 In respect of the dimensions of the effluent pond, it was Mr Welsh’s contention that his amended plans complied with what was required and if they did not he would amend them to accommodate what was required. In my opinion, in light of the considerable amount the applicant has already invested in seeking approval of his proposed aquaculture business, both through the Council and the Department, and the fact that the delays in the consideration of his application for a permit have been due to the slow decision making processes of the Department, this is a matter that the applicant should be given an opportunity to rectify to the satisfaction of the Minister. This would be achieved by remitting the decision back to the Minister for further consideration.

34 The final matter is that of disease control. This is a very difficult area and the Minister has provided almost no material as to the issues involved, other than the Policy. Mr Welsh accepted the Minister’s decision that it was inappropriate for the applicant to pump the water from ponds of diseased fish onto the asparagus grown on the surrounding land and he agreed to comply with what was required. As I have pointed out Mr Welsh acknowledged his lack of specific knowledge in relation to disease and said he would seek assistance in this regard. He also said that from the inquiries he had made with officers of the Department there was very little information about diseases and how they could be recognised and treated. In this regard the applicant also provided the Tribunal with a copy of the standard conditions that apply to an aquaculture permit. These conditions include conditions in respect of disease control, which make provision for the Department to be advised, within 24 hours, of the discovery of any disease or any unexplained or significant fish stock loss during any week and they required the permit holder to carry out any directions given by the Department. It is evident from these standard conditions that the Department constantly monitors disease control of permit holders and where there is a failure to adhere to the conditions this can be ground on which a permit can be cancelled: see s.160(1)(d) of the FM Act.

35 In light of Mr Walsh’s concession that it would be inappropriate for his to dispose of effluent from diseased fish in the manner he proposed, in my opinion it is also appropriate for Mr Welsh to amend the applicant’s commercial development plan in this regard so as to satisfy the Minister that its method of disposal is consistent with that provided in the Policy. Again this would be achieved by remitting the matter to the Minister for further consideration.

Expertise

36 The applicant, in particular Mr Welsh, did not pretend to have expertise or experience in aquaculture. If Mr Welsh’s company were to be granted a permit this would be a new business venture for him. He gave evidence of previous business ventures that he had been involved in as well as his current business venture of asparagus farming. He explained that he wanted to diversify from his asparagus farming business and had made numerous enquires with his neighbour who had an aquaculture business. He had provided some assistance to his neighbour, which enabled him to see how the business was set up and worked. He also said that he had made numerous enquiries with the Ministry and other prominent members of the industry.

37 While Mr Welsh did not come across as a technically knowledgeable businessman he was forthright and readily accepted his shortcomings in this regard. However, this did not prevent him from running successful businesses. He is enthusiastic and entrepreneurial. During cross examination he was asked numerous questions, including questions about how he would regulate the growth of fish, identify diseases in the fish and treat those diseases. His responses were pragmatic and what he saw as being common sense. That is, he would be alerted to the possibility of disease if he found a number of fish “floating”. He could not identify any of the diseases or how they are detectable, but neither did the Ministry. What he did say was that he would seek the assistance and guidance of the Ministry or other members of the industry if this occurred. Mr Welsh was also asked numerous questions about his marketing plan, in particular his target markets and his strategies for developing new markets. He explained that he would be selling primarily to wholesalers in Sydney and Melbourne.

38 As mentioned above, the Minister’s primary concern about the applicants expertise in aquaculture appears to arise from the fact that Mr Welsh has failed to ensure that the details of the applicant’s commercial development plan were comprehensive and correct and the fact that Mr Welsh would be relying on the expertise of others in running the business, in particular his neighbour who was a aquaculture permit holder. During the course of the hearing Ms Cory also submitted that Mr Welsh had not undertaken any course of study to learn about aquaculture.

39 While I understand the concern of the Minister, the FM Act and the Fisheries Management (Aquaculture) Regulation 2002 do not place any restrictions on new entrants into the aquaculture industry. Nor does this legislation prescribe specific expertise or qualification as being necessary in order to be eligible for an aquaculture permit. At the same time, the Policy does not contain any such requirement. It is noted that in s.143(4)(e) of the FM Act the Minister is given a general power to include in a commercial aquaculture industry development plan any matter, other than that which is prescribed, which concerns aquaculture and which the Minister considers appropriate. While it is not necessary to determine the issue it would appear that this provision is sufficiently wide for the Minister to include specific expertise or qualifications for permit holders should he consider it appropriate. However, as mentioned above, the Minister has not exercised his powers under this section.

40 The guidelines, however, do suggest that applicants discuss their proposal “with relevant industry associations and consider undertaking an aquaculture – training course” (see page 5 of the guidelines). Even this is no more than a recommendation and not a requirement.

41 In my opinion, without some guidance as to what is entailed in the concept of “expertise necessary to undertake the aquaculture successfully” s.146(2)(e) of the FM Act can only lead to arbitrary decision making, particularly when the Minister clearly has power to prescribe that which is necessary. In doing so the Minister must have regard to the objectives of the FM Act, which relates to the commercial viability of the industry and not the individual licence or permit holder.

42 Accordingly, having regard to the matters relied on by the Minister, the evidence of Mr Welsh and what is contained in the Policy and the guidelines, I find that the decision of the Minister that the applicant does not have the expertise necessary to undertake aquaculture successfully is not established.

Discretion

43 While it is unnecessary to determine whether the Minister has or has not exercised his discretion correctly in refusing the applicant’s application, I wish to emphasise that this discretion is to be exercised in accordance with the objectives of the FM Act as set out in s.3 and the objectives set out in the Policy for commercial aquaculture. That is, it is to be exercised having regard to the viability of the commercial aquaculture industry and not the viability of the individual applicant.

44 For the reasons set out above the decision of the Minister is not the correct and preferred decision and the Tribunal orders that, pursuant to s.63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the Minister is set aside and remitted to the Minister for reconsideration in accordance with the recommendations contained in this decision.