Tuna Boat Owners Association of SA Inc v Development Assessment Commission & Anor

The Tuna Boat Owners Association of SA Inc (“the Association”) sought development consent from the Development Assessment Commission (“the DAC”) for an aquaculture development in Louth Bay, Spencer Gulf. The DAC approved the application, subject to certain conditions. The Conservation Council of SA Inc. (“the Council”) appealed against the DAC’s decision. The Environment Resources and Development Court (“the ERD Court”) allowed the appeal and reversed the decision of the DAC. The Association appeals to this Court. The main issue on appeal is whether a licence granted pursuant to s 53 of the Fisheries Act could be the means of ensuring the ecologically sustainable management of the proposed development. The ERD Court rejected a submission that such a regime could be achieved by the imposition of terms or conditions on the grant of a lease or licence pursuant to s 53 of the Fisheries Act. The Court did not find it necessary to make a decision about the type of condition that could be imposed under s 53. The Court upheld the appeal, and set aside the decision of DAC, because its view was that a licence under the Fisheries Act could not institute an adaptive management regime, and because it was not prepared to grant a consent if such a regime was not instituted. The Full Court allowed the appeal, set aside the decision of the ERD Court, and ordered that the matter be remitted to the ERD Court for further consideration in light of the reasons of this Court. The ERD Court can then decide whether it should adjourn the appeal and give the Association the opportunity to seek a lease or licence from the Minister with appropriate conditions, or whether it should in fact adhere to its original decision.