Webb and Anor and Department of Fisheries (WA) and Anor

[2006] WASAT 18

WEBB & ANOR and DEPARTMENT OF FISHERIES (WA) & ANOR [2006] WASAT 18

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 18
Act:	FISH RESOURCES MANAGEMENT ACT 1994 (WA)
Case No:	DR:29/1998	Heard:	17 AND 18 OCTOBER 2005
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	30/01/06
No of pages:	19	Judgment Part:	1 of 1
Result:	Objection dismissed
Category:	B
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Parties:	ATHOL ERIC WEBB JOE RINKENS DEPARTMENT OF FISHERIES (WA) WA SOUTH SEA PEARLS PTY LTD
Catchwords:	Fisheries ­ Objection to proposed aquaculture licence ­ Non maxima pearl oysters ­ Distance between licensed areas ­ Priority of applications
Legislation:	Fish Resources Management Act 1994 (WA), s 13, s 92, s 92(1), s 92(1)(c), s 148, s 152 Pearling Act 1990 (WA), s 24
Case References:	Nil Nil
Orders	The objection by the applicants should be dismissed

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : FISH RESOURCES MANAGEMENT ACT 1994 (WA) CITATION : WEBB & ANOR and DEPARTMENT OF FISHERIES (WA) & ANOR [2006] WASAT 18 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 17 AND 18 OCTOBER 2005 DELIVERED : 30 JANUARY 2006 FILE NO/S : DR 29 of 1998 BETWEEN : ATHOL ERIC WEBB

JOE RINKENS
Applicants

AND

DEPARTMENT OF FISHERIES (WA)
First Respondent

WA SOUTH SEA PEARLS PTY LTD
Second Respondent

Catchwords:

Fisheries ­ Objection to proposed aquaculture licence ­ Non maxima pearl oysters ­ Distance between licensed areas ­ Priority of applications

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Legislation:

Fish Resources Management Act 1994 (WA), s 13, s 92, s 92(1), s 92(1)(c), s 148, s 152

Pearling Act 1990 (WA), s 24

Result:

Objection dismissed

Category: B

Representation:

Counsel:

Applicants : Mr AE Webb
First Respondent : Ms J Hebiton
Second Respondent : Mr N Cooper

Solicitors:

Applicants : Self-represented
First Respondent : State Solicitor's Office
Second Respondent : Clayton Utz

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 In 1998, the applicants, who are the holders of a fish farm licence for a small area of the Exmouth Gulf, objected to the proposed grant of an aquaculture licence to WA South Sea Pearls Pty Ltd (WASSP). They were concerned that the proposed pearl farm would pose a disease risk on their own pearl farm which they wished to expand to areas near where the new farm was to be sited. They also contended that the Fisheries Department (the Department) should have granted them an expanded area for their own farm before 1997, and that an application for an expanded area made by them in October 1997 should be given priority over the WASSP application.

2 The Tribunal examined the history of the applicants' dealings with the Department and the WASSP proposal. It also considered evidence as to the potential risks of having pearl farms in close proximity to each other. Having done so, it concluded that the applicants' objection should be dismissed, because the WASSP application was correctly afforded priority and would not present an unacceptable risk to the applicants' existing licensed operation.

The nature of the proceedings

3 On 17 October 1997, WA South Sea Pearls Pty Ltd (WASSP) lodged an application with the Department of Fisheries' Executive Director (the Executive Director) for an aquaculture licence to culture black-lip pearl oysters and wing pearl oysters on a site north-west of Simpson Island in the eastern part of Exmouth gulf. The area of the application was 789 hectares. At that time, the applicants held a fish farm licence No 558 for a 5 hectare area to the south-east of Simpson Island.

4 Section 92(1) of the Fish Resources Management Act 1994 (WA) (the FRM Act) provides:

"92. Grant of aquaculture licence

(1) If a person applies to the Executive Director for the grant of an aquaculture licence and the Executive Director is satisfied that –

(a) the person is a fit and proper person to hold such a licence;

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(b) it is in the better interests of the aquaculture industry to grant the licence;

(c) the activities to be conducted under the licence are unlikely to adversely affect other fish or the aquatic environment; and

(d) the activities to be conducted under the licence have been approved by other relevant authorities,

the Executive Director may grant to the person an aquaculture licence."

5 Pursuant to s 148 of the FRM Act (as it stood at the time) the Executive Director was required to publish a notice of a proposal to grant an aquaculture licence and give affected persons the opportunity to object to the proposal within 21 days after the publication of the notice. On 11 September 1998, the Executive Director published a notice of a proposed decision to grant an aquaculture licence to WASSP, and notified the applicants of the proposed decision. On 2 October 1998, the applicants lodged an objection to the proposed decision. On 16 September 1998, a fisheries tribunal was established by the Minister pursuant to s 152 of the FRM Act (as it stood at the time) in order to hear the objection to the approval of the WASSP application.

6 The objection was not dealt with before the establishment of this Tribunal on 1 January 2005. Pursuant to the transitional provisions of the State Administrative Tribunal Act 2004 (WA), the applicants' objection was transferred to this Tribunal for determination.

7 Why a period in excess of six years passed with very little progress in the objection proceedings is not satisfactorily explained. Why none of the parties to the appeal pressed for a resolution is very difficult to understand, and leads to the unsatisfactory position of this Tribunal being called upon to make the correct and preferable decision on the basis of information and evidence some eight years old. Despite the Tribunal's unease with that position, the parties all wished to proceed with the hearing on the basis that the considerations which applied in 1997 are equally applicable in 2005.

8 In order to understand the applicants' contentions as to why the WASSP application should not be granted, it is necessary to review the

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history of the applicants own operations, and their interrelation with the WASSP application.

The 1994 application

9 Mr Webb became interested in the aquaculture industry in the Exmouth gulf area around 1987. He initially approached the Department of Fisheries (the Department) in February 1987 with a view to developing sites for culturing prawns, mangrove crabs and scale fish. In the following few years, Mr Webb continued to investigate and research the potential for aquaculture activity in the area. Eventually, an enquiry was made by Mr Rinkens of Mr Webb concerning the frequency of non maxima pearl oysters in the Exmouth gulf area. From Mr Webb's assessment of the area, he was aware of an abundance of those oysters around the Simpson Island area. On 21 February 1994, the applicants submitted an application for a 10 hectare site to farm three varieties of non maxima pearl oysters and western rock oysters. The application contemplated a two-year pilot stage, with development to a fully commercial operation after four years. The application was submitted to the Inter-Departmental Committee for Aquaculture (IDCA), which requested further information on the application in March 1994. That information was provided by the applicants that month.

10 In April 1994, the Executive Director granted an approval to the applicants to deploy 16 spat collectors for evaluation purposes in the area adjacent to Simpson Island. In August 1994, the applicants amended their application seeking approval of 12 sites each containing 5 hectares. The different areas were sought to enable assessments of different varieties of oyster and different water and tidal conditions to be undertaken.

11 On 26 August 1994, the IDCA considered the applicants' application. On 13 September 1994, the chairman of the IDCA wrote to the applicants advising that the IDCA was not prepared to approve the application as it then stood. The letter advised that the IDCA was conscious of the pearling guidelines which included a requirement of a 10 nautical mile exclusion zone between one lease area and another. The letter said "in your case this would constitute an enormous area of water which would be excluded from use by any other potential aquaculturalist". The letter requested that the applicants resubmit a request for two sites indicating the exact coordinates of each and added "when you resubmit details of your site/s could you also include details of a grow out site".

12 There followed a meeting between the applicants and representatives of the Department in October 1994, following which, by letter dated

(Page 6)

27 October 1994, the applicants obtained conditional approval for a 5 hectare pearl oyster facility and a 5 hectare site for edible oysters. Fish farm licence No 558 was issued to the applicants on 15 March 1995.

13 In late 1995, the applicants planned a mapping programme to identify an extra juvenile pearl oyster site and two grow out sites in accordance with the suggestion made in the letter to them of 13 September 1994. Mapping was apparently completed in mid-December 1995 but shortly afterwards a cyclone struck Exmouth resulting in damage to the applicants' vessel when another vessel that had broken its moorings collided with the applicants' vessel. As a result of that damage, the applicants could not pursue their aquaculture programme for more than a year. According to Mr Webb, whose evidence I accept, in February 1996 he lodged the coordinates of the additional areas that he was seeking at the Department. He did so thinking that he was thereby lodging an application for additional areas as contemplated in the letter of 13 September 1994. It would appear that the documents lodged by the applicants were simply placed on a file and were never processed or in any way treated as an application for an extension of the fish farm licence area.

The WASSP application

14 In August or September 1997, Mr Richard Scoones, an experienced consultant in the aquaculture, fishing and pearling industries in Western Australia was asked by Mr Kelvin Waldron-Brown, a director of WASSP, to identify a site for an aquaculture licence in Exmouth gulf for large scale commercial production of black-lip and wing shell pearl oysters. He identified a site approximately 730 hectares in area which he estimated would meet the commercial objectives of WASSP, was economically viable and would not conflict with existing or prospective aquaculture developments in the area. In September or October 1997 he visited the area of the proposed site and carried out a number of dives over the area to determine its suitability. He identified that the site was suitably protected, had adequate depth and was an acceptable distance from existing aquaculture sites and from the prawn fishery within the Exmouth gulf. The site which he identified was north-west of Simpson Island. Mr Scoones took into account the applicants' approved fish farm which he assessed to be not less than 2 nautical miles over water from the proposed WASSP site, and separated from the proposed site by Simpson Island.

15 Mr Scoones was aware that Mr Waldron-Brown had met with Mr Webb and had been told of the applicants' intention to apply for

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further sites near their current site at Simpson Island. He was also aware, however, that (at least so far as was apparent from publicly available information) no application had been made by the applicants for additional sites at that point in time, and accordingly he was not influenced in his choice of a site by the applicants' future intentions.

16 Mr Scoones completed the WASSP application and lodged it with the Executive Director on 17 October 1997. On 29 October 1997 the application was sent to relevant IDCA members seeking their comments. Comments were received through November and December 1997. Ms Barbara Sheridan, who was then the Executive Officer of the IDCA, reviewed the application and the responses, and drafted a letter dated 3 February 1998 to WASSP advising it that its application did not contain sufficient information to enable it to be assessed in accordance with Ministerial Policy Guideline No 8 (MPG 8) and detailing the additional information that was required.

17 On 10 February 1998, Mr Scoones, on behalf of WASSP, wrote to the chairman of the IDCA providing additional information as requested. Further information was provided by letter from Mr Brown on behalf of WASSP on 11 February 1998. Both letters were received on 16 February 1998, and the WASSP application was "deemed competent" as of that date. Thereafter a process of consultation and advertising was undertaken. Advertising took place on 27 February 1998.

18 After responses were received to letters to interested stakeholders, and in response to advertising, Mr Cameron Westaway, who was then an aquaculture programme officer with the Fisheries Department, prepared a draft statement of decision in relation to the WASSP application. In a covering memorandum dated 17 August 1998 to Mr Peter Millington, the then director, Fisheries Management Services, Mr Westaway identified "the issue of the distance between the proposed sites and sites held and applied for by Mr A Webb and Mr J Rinkens (as) the major issue for this application". The memorandum indicated that Mr Westaway would be recommending that the application be refused unless WASSP is prepared to move the site to place it outside 2 nautical miles of both the existing Webb and Rinkens site and sites subsequently applied for by Webb and Rinkens.

19 Mr Millington made a note on that memorandum which reads "my concern rests on the 'priority' issue of the Webb and Rinkens new sites. Needs more explanation, date sequences etc". Mr Millington ultimately formed the view that the WASSP application should take priority over an

(Page 8)

application which the applicants had made to vary the area to which their 1994 application applied (that application is discussed later in these reasons). He reached that view because the WASSP application had been submitted prior to the applicants' variation application and because additional information necessary to deem the WASSP application competent had been received prior to additional information concerning the applicants' variation application and thus prior to the variation application being deemed competent.

20 Mr Millington otherwise took into account the various matters identified in Mr Westaway's draft statement of decision. The statement of proposed decision recited the requirements of s 92 of the FRM Act and addressed each one in the context of the WASSP application. In relation to s 92(1)(c) the statement of proposed decision addresses in detail the potential conflict between the WASSP application and the applicants existing and proposed additional sites. In that regard, the statement concluded:

"In considering this matter and the apparent conflict between WASSP and Webb and Rinkins [sic], I have taken into account the following –

(1) The absence of policy guidelines related to distances between sites for non - P.maxima aquaculture.

(2) The fact that the proposed site is 2nm from an existing site (Webb and Rinkins [sic]) and it would therefore be possible to create a buffer zone in the instance of any serious disease problem.

(3) Not withstanding [sic] that there is no policy in place, Simpson Island provides a clear geographical division between the proposed site and the existing Webb and Rinkins [sic] site.

(4) The proposed site is within 2 nm of additional sites sought by Webb and Rinkins [sic]. Notwithstanding Webb and Rinkins [sic] contention that they had previously applied for these general areas and had been advised by Fisheries WA to reduce the number of sites, the application for additional sites was made after the WASSP application.

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Given the above, I am of the view that the site proposed by WASSP is sufficient distance from Webb and Rinkins [sic] existing site and that in any event, Simpson Island creates a geographical division between the sites. The WASSP application should not therefore be refused on the grounds of distance between the sites."

21 The statement of proposed decision then addressed considerations arising from MPG 8 and the submissions received during the consultation process. It concluded that the application should be approved subject to certain conditions.

22 As mentioned above, upon receiving advice of the proposed decision to approve the WASSP application, the applicants lodged the present objection.

The applicants' variation application

23 On about 16 October 1997, Mr Westaway met with Mr Webb concerning a request which Mr Webb had made for spat collection from another site in Exmouth gulf. The question of the expansion of the applicants' operation arose. Mr Westaway recorded in a file note that he anticipated that an application through Mr Scoones for a site west of Simpson Island was expected shortly. Mr Westaway also recorded that he suggested to Mr Webb that he may need to make a new application for additional sites rather than a variation to his existing licence, but that he would discuss with Mr Paust, the then chairman of the IDCA, whether a new application, or an application for variation would be required. An annotation to Mr Westaway's file note indicates that Mr Paust responded that an application should be made to vary the existing fish farm licence area rather than a new application. It is apparent that, at that time, Mr Webb considered that he had already submitted the coordinates for an additional area, and that the expansion of the area was an inherent part of what was contemplated in the original approval and issue of the applicants' fish farm licence.

24 As a result of the discussion between Mr Webb and Mr Westaway on 16 October 1997, the applicants submitted their application to vary their fish farm licence area on 20 October 1997. The application was for an increase in the size of the existing facility to 35 hectares. That application for variation was submitted some three days after the submission of the WASSP application.

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25 On 3 February 1998, the Executive Director wrote to the applicants advising them that the variation application had insufficient information, and seeking additional information before the application would be deemed competent. That letter was dated the same day as a letter to similar effect to WASSP concerning insufficiencies with its information.

26 Having received the request for information, Mr Webb undertook certain enquiries and research in order to provide the necessary information. The applicants submitted the requested information on 7 May 1998, and their application was then "deemed competent". That was some two and a half months after the WASSP application had been deemed competent and advertised. The applicants' variation application was advertised in the West Australian newspaper on 22 May 1998.

27 It would appear that thereafter no progress was made with the applicants' variation application. Apparently that is because the Executive Director took the view that the application should not be disposed of until the objection to the proposed grant of the WASSP application had been resolved. Accordingly, the applicants' application for variation has languished for in excess of seven years without a decision being made.

The unsatisfactory state of proceedings

28 As will shortly be seen, the principal thrust of the applicants' objections to the WASSP application is based around the concerns which they have as to the effect that the WASSP operation will have on their proposed operation. Those objections have force only if the applicants' variation application is to be granted. If it is not granted, then it is common ground between the parties that the existing fish farm licence area held by the applicants is insufficient to develop a commercially viable oyster operation, whether non maxima pearl oysters or edible oysters are involved.

29 This Tribunal is not, however, in a position to assess the merits of the applicants' variation application. There has never been a decision on that application capable of review by this Tribunal. Because much of the objectors' objections are based on the assumption that they will be granted their variation application, or at least will be granted approval if the WASSP application is not approved, the whole objection process has proceeded on a somewhat hypothetical basis. For example, if the applicants' variation application were to be rejected because the Executive Director was not satisfied of the various matters prescribed by s 92, then the grounds upon which the Tribunal is asked to refuse the WASSP application would substantially disappear.

(Page 11)

30 The apparent decision by the Executive Director simply to cease consideration of the applicants' variation application is regrettable. This Tribunal would be in a far better position to assess the correct and preferable decision in relation to the WASSP application if the position in relation to the applicants' variation application was established or alternatively was itself the subject of an application for review which could have been heard together with the review of the WASSP application. As it is, the Tribunal has been presented an application for review which appears to be a competition between two competing applications, only one of which it can deal with.

31 That position, coupled with the fact that neither the applicants nor the second respondent appear to have been sufficiently interested to progress the proposals through the objection process, and the fact that the first respondent has simply let the matter lie dormant, puts the Tribunal in a difficult position in assessing the application in light of the requirement under s 92 of the FRM Act to determine what "is in the better interests of the aquaculture industry" in relation to the application subject to objection.

32 When this difficulty was raised with the parties at the hearing, both the applicants and the second respondent expressed a desire to progress their aquaculture plans and sought to have the matter determined. The Executive Director's representatives indicated that, notwithstanding the passage of time, it was content for the Tribunal to make its decision on the basis of the materials gathered in 1997 and 1998 during the assessment process. In the circumstances, and with some considerable misgivings, I turn to consider the objections raised by the applicants to the WASSP application.

Issues in the objection

33 The applicants lodged a statement of issues with the Tribunal on 24 May 2005. In that document they sought to identify the reasons why the WASSP application should not be approved.

Issue 1 - Limiting the fish farm licence to 5 hectares

34 The first issue which the applicants raise is that they contend that the Executive Officer erred in refusing to grant the initial application by the applicants for 12 areas of 5 hectares each. The original decision to issue a fish farm licence is not the subject of review by this Tribunal. Whether the Department erred in refusing the original application for 60 hectares does not therefore fall for determination in these proceedings.

(Page 12)

35 What is clear enough is that the original fish farm licence was seen by all concerned as a mechanism by which the initial pilot project might be started. Given that long-term commercial viability would inevitably require greater areas, the only logical conclusion that can be drawn is that it was anticipated that further areas would be added to the licensed area if and when the pilot programme progressed into commercial phases. That was clearly Mr Webb's understanding, and is consistent with the terms of the letter to the applicants of 13 September 1994 from the Department. What is regrettable is that there was clearly a misunderstanding between Mr Webb and the officers of the Department as to the formalities that would be required to obtain approval of additional areas. It cannot be said, however, that the approach taken by the department in the initial stages was in error.

Issues 2 and 3 - The allocation of additional areas

36 Issues two and three of the applicants' statement of issues relate to the submission of GPS coordinates by the applicants to the Department in 1996, and an alleged failure to process an application for additional areas in the early part of 1997.

37 The applicants allege that Mr Charles Thorn, the officer in charge of non maxima pearling, discussed with Mr Webb in 1995 the need for additional areas. They assert that Mr Thorn advised Mr Webb to identify sites by GPS coordinates and that Mr Thorn would then allocate them to the objectors immediately. It was for that reason that the applicants lodged coordinates for additional sites with the Department in early 1996 seeking access to an additional 35 hectares.

38 Mr Thorn, in his evidence, did not accept that he gave any approval for additional sites nor did he undertake to immediately allocate sites upon receipt of coordinates. Mr Thorn said it was not within the scope of his power as chairman of the IDCA to independently vary an aquaculture licence.

39 As observed above, it is clear that there was a breakdown in communication as to what was required by the applicants to develop additional areas under their fish farm licence. Mr Thorn is correct when he says that he had no power to simply allocate additional areas, and whatever Mr Webb may have understood to be the position, it is clear enough that the mere lodgement of coordinates for additional sites in early 1996 was not of itself sufficient to confer on the applicants any rights to proceed with their aquaculture programme on those sites at that time.

(Page 13)

40 The third issue identified by the applicants relates to a meeting said to be in April 1997, between Ms Sheridan, Mr Paust and Mr Webb. According to the applicants, at that meeting, Mr Webb raised the fact that the additional area the objectors had applied for had not been allocated to the applicants. It is clear that, at that point at least, Mr Webb knew that no additional sites had been allocated.

41 Mr Paust's note of the meeting includes a note which reads "suggested – apply for variation – need to go through IDCA process". The date of the meeting is noted as 13 March 1997, but I am satisfied that it is the same meeting as referred to in issue three. That note is consistent with both Ms Sheridan's and Mr Paust's recollection of what was said by Mr Paust to Mr Webb at that meeting. I accept that it is likely that that was said to Mr Webb. Although Mr Webb recalls that he requested urgent action to be taken in relation to the 35 hectares in respect of which coordinates had been lodged in 1996, and I accept he may have suggested that course, I find that it is unlikely that Ms Sheridan or Mr Paust said anything which might have reasonably caused Mr Webb to believe that no formal application for variation was required. I reach that conclusion because of Mr Paust's contemporaneous file note of the meeting, and because the procedures in respect to the grant and variation of aquaculture licences are clearly inconsistent with applications being dealt with in the way suggested by Mr Webb.

42 The relevance of these findings in relation to these issues is that events between 1995 and mid 1997 did not have the effect of conferring on the applicants any additional rights beyond the terms of the existing fish farm licence.

Issue 4 – Introduction of new fisheries guidelines

43 The fourth issue raised by the applicants is an assertion that the Department erred in not dealing with their sites before new fisheries guidelines caused a halt in processing new applications. This issue leads nowhere in light of the fact that, notwithstanding Mr Webb's misapprehension of the position, in the absence of a formal application for variation of the fish farm licence, there was nothing for the Department to deal with in relation to the objectors site prior to October 1997. That is not to say that the manner in which the Department simply did nothing about the coordinates for additional sites when lodged in early 1996 was appropriate. What should have happened is that, rather than placing the information on a file with no follow up action being taken, Mr Webb should have been advised to make a proper application for variation of his

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licence. He eventually received that advice in March 1997, but did not proceed with an application until October of that year.

Issue 5 – Priority of applications

44 The applicants assert that the Department "erred by placing the [applicants'] application in a position of being behind the [WASSP] application, when Department of Fisheries maps used in the [WASSP] application show the sites applied for by the [applicants] were already clearly recorded".

45 This assertion appears to be based upon maps which were produced during the course of the objection proceedings. The maps had been prepared subsequent to the applications by both WASSP and the applicants. Having been brought into existence after the event, the maps have no bearing on the question of priority of the respective applications.

46 It is clear, however, that the Executive Director, through his delegate, Mr Millington, placed considerable significance on the question of priority. Priority was established by what was apparently a generally adopted approach when the Department processes applications. Mr Millington determined that priority should be given to the WASSP application because it was received three days before the applicants' variation application, and because it was deemed competent in February 1998, some two and a half months before the applicants' application for variation was deemed competent. That approach is not embodied in MPG 8 nor in the FRM Act or regulations made under it. It is appropriate to ask whether, against the background of facts in this case, the method adopted for determining priority was appropriate. There is an argument that, because the original grant of the fish farm licence to the applicants was clearly intended to be a first stage of a developing aquaculture facility, priority should be afforded to the development of the existing facility. With some hesitation, I have reached the conclusion that the method by which priority was established was preferable in the circumstances. There are two reasons for that. The first is that the development by the applicants by their facility had not been progressed as anticipated in 1994. I accept that the project was substantially delayed by circumstances beyond the control of the applicants, and in particular, the cyclone related damage to the applicants' vessel at the end of 1995. Although I accept that some progress was being made with the project between 1995 and 1997, it was clearly not progress at the rate anticipated when the application was originally made and granted.

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47 The second factor of significance is that, as I have found, it was apparent to the applicants from at least March 1997 that a further application for additional areas would need to be formally made and processed through the IDCA. The applicants did not progress an application until prompted to do so in October 1997, and no doubt as a result of the advice that an application was about to be made by WASSP for an area in close proximity to the applicants' licensed areas. Mr Scoones' evidence was that he had regard to existing facilities in the area, and chose his area so as to avoid what he saw as conflict with existing aquaculture or other fishing operations. Although aware of a proposal by the applicants to extend their area, he proceeded on the basis that no application had in fact been made at the time he lodged the application on behalf of WASSP. WASSP was entitled to rely on the usual procedures of the Department in relation to priority and to proceed on the basis that, in the absence of an application in respect of a particular area, it need not take account of possible future applications. It would be unreasonable to WASSP to retrospectively alter the approach to priority.

48 For those reasons, I would not interfere with the approach to priority taken by the Director General.

Issue 6 – Rules for separation between sites

49 The sixth issue identified by the applicants is that "the Department of Fisheries erred in not informing the [applicants] of a change in rules for distance between farm sites. The [applicants] 1995 approval for a licence clearly states that a statutory 10 mile spacing which at sometime changed to a 5 mile spacing for a new farm and 2 miles for an existing operator who cannot otherwise get necessary water for expansion".

50 Precisely how this contention impacts upon the question before the Tribunal, namely the WASSP application should be approved, is not clear. It is apparent, however, that as knowledge and experience in relation to aquaculture has developed over the last 20 or so years, there have been changes in the approach to requirements for distance between pearl oyster farm leases. In its letter to the applicants dated 13 September 1994 seeking a reduction in the size of the area the subject of the applicants' original application, the Department spoke of a "requirement of a 10 nautical mile exclusion zone between one lease area and another". Ministerial Policy Guideline No 17 (MPG 17) issued pursuant to s 24 of the Pearling Act 1990 (WA) provided for a distance of 5 nautical miles between lease areas with a provision that the distance might be reduced to a minimum of 2 nautical miles by expansion of existing sites. MPG 17

(Page 16)

related only to maxima pearl oyster farms, and not to the non maxima pearl oyster farms the subject of both the WASSP and the applicants' applications. As the development of non maxima pearl aquaculture facilities became more prevalent in the late 1990s, pressure mounted for an adoption of what was known as the 5/2 rule to apply to the non maxima pearl industry. As at October 1997, when both the WASSP application and the applicants' variation application were made, there was no applicable policy relating to the distance between non maxima pearl sites.

51 In October 1998, the Department adopted, in effect, the 5/2 rule in relation to non maxima pearl leases. By way of a transitional provision as to the application of the policy, it was determined that "applications currently before the agency which were submitted in good faith and in the absence of a written policy will be treated on their merits taking into account submissions received under MPG 8 and advice from the senior fish pathologist". It is that approach which has been taken by the Executive Director in relation to the WASSP application. In my view, in the interests of consistency and fairness in administrative decision-making, that approach is appropriate and should be applied in this case. What that involves is an assessment of the types of matters raised by the applicants in issue 8 below by way of assessment of the practical effects of two facilities in relatively close proximity.

Issue 7 – Separations between these sites

52 The seventh issue raised by the applicants is an assertion that the Department erred in allowing the new facility to be within 5 miles of the applicants' existing licence. My conclusions in relation to that matter are encompassed in my observations in relation to issue 6.

Issue 8 – The consequences of the proximity between sites

53 The eighth issue raised by the applicant involves a number of issues already dealt with, and two additional issues. They are first, the risk of spread of disease between sites and second, the sheer size of the area applied for.

54 As to the risk of the spread of disease, Mr Webb expressed concern about the transfer of disease from the oysters themselves, and a risk of disease from effluent or other pollution associated with the farming operations on the WASSP site. He raised as examples pollution that had occurred from effluent disposal at Rottnest, and examples of problems with oyster stocks in other locations.

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55 Dr John Jones, the principal fisheries pathologist with the Department, provided a statement to the Tribunal. He explained the factors which affect the transmission of diseases within and between pearl farms. They included stock density, the size of the facility, distance between farms and patterns of currents and tidal flows. He expressed the opinion that it cannot be said that any one of those factors carries more weight than the others. He said that, in his experience, the main cause of disease is bad management due to lack of cleaning or care of pearl oysters and panels within which they are housed. Dr Jones has been an advocate of the application of the 5/2 mile rule for non maxima pearl oysters since at least May 1997.

56 Dr Jones assessed the risk of spread of disease between the proposed WASSP site and the applicants' sites. For a number of reasons which he identified, he concluded that the risk of disease spreading from the second respondent's site to the applicants' site is very small and probably not greater than if the sites were 5 nautical miles apart.

57 Mr Scoones, who also has very considerable experience in the pearl oyster industry, and formal qualifications in zoology and botany also expressed the opinion that the risk of the spread of disease from the proposed WASSP site to the applicants' site is very low. He discussed the potential spread of disease from human waste as well as from stocks of oysters. The reasons for his conclusion were explained in some detail.

58 Both Dr Jones and Mr Scoones are suitably qualified to express the opinions which they did as to the potential disease risk if the WASSP application is approved. While Mr Webb's contrary opinion is no doubt genuinely held, the basis for his opinion is largely speculative. I accept the opinions of Dr Jones and Mr Scoones that, notwithstanding that the applicants' site is within 5 nautical miles of the proposed WASSP site, proper management practices which are a requirement of aquaculture licence conditions, will lead to a minimal risk of infection spreading to the applicants' site.

59 In accordance with the policy adopted by the Department of reviewing applications made prior to the introduction of the policy for separation of non maxima pearl farms on their individual merits, I have concluded that the distance between the proposed site and the applicants' site is not a reason to reject the WASSP application.

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The size of the area applied for

60 Mr Scoones, in his evidence, explained how he came to settle upon the proposed size of the site applied for, having regard to the commercial objectives and viability of the project. While the size of the area greatly exceeds the size of the areas sought by the applicants for their proposed project, it is apparent from the map of the Exmouth gulf area (RJSS 2 to Mr Scoones' statement) that the proposed area is smaller than a number of other areas used for pearl oyster aquaculture within the Exmouth gulf. For example, the Morgan and Company Proprietary Limited areas, the Exmouth Pearls Proprietary Limited area and areas granted to Exmouth Pearls Pty Ltd and Seagem Pearling Company (which postdate the WASSP application) are of similar or greater size.

61 There is no basis on the evidence to conclude that, merely because the WASSP area is far greater than the area sought by the applicants, it is an excessive area for the grant of a licence.

Issue 9 – Precautionary approach

62 The applicants contend that there should be a "precautionary approach" taken to the grant of the WASSP application as advocated "in the guidelines and as recommended by its own consultants and the relevant industry advisory body namely AMWING and the Pearl Producers Association Inc.". This particular contention was not developed at the hearing, and the particular guidelines and recommendations being referred to were not identified. In any event, the contention is of a general nature, and given the detailed consideration of the particular application that was undertaken and outlined in the statement of proposed decision, I find no substance in the general complaint that a "precautionary approach" has not been taken.

Issue 10 – Validity of delegation

63 The applicant raised an issue as to the validity of a delegation from the Executive Director to make the proposed decision. The proposed decision was made by Mr Millington. In his witness statement, Mr Millington detailed the delegation under which he operated in making the proposed decision. I am satisfied that he was suitably authorised to make the decision under s 13 of the FRM Act. Mr Webb did not pursue any argument to the contrary at the hearing, and the issue of Mr Millington's delegation does not provide any basis for attack on the proposed decision.

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Conclusion

64 Having considered Mr Webb's submissions in detail, I have reached the view that there is no basis to interfere with the proposed decision, and that it should stand as the correct and preferable decision in relation to the WASSP application. The objection by the applicants should be dismissed.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT

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