Pt Vincent Progress Assn & Ors v Dac & Colmion P/L No ERD-98-1097, ERD-98-1115, ERD-98-1116, ERD-98-1139 Judgment No OE7 [1999] SAERDC 7

Environment, Resources and Development Court (SA)|1999-04-14|Before: Commissioner Hutchings, Commissioner Hodgson

ERD-98-1097, ERD-98-1115, ERD-98-1116, ERD-98-1139

(Her Honour Judge Trenorden, Commissioner Hutchings and Commissioner Hodgson)

Port Vincent Progress Association Inc. (1097 and 1139 of 1998)

1 By two decisions made on 26 August 1998 the Development Assessment Commission granted provisional development plan consent, subject in each case to 10 conditions, to two applications by Colmion Pty Ltd to establish by each, a ten hectare aquaculture site for the holding and cultivation of the Pacific oyster (Crassostrea gigas) in the coastal waters of Gulf St Vincent, adjacent to Port Vincent, at a specified location. The applications, assigned development numbers 010/0006/97 and 010/0007/97, had been processed by the Development Assessment Commission as category 3 applications. Representations had been received in respect of both applications pursuant to Section 37 of the Development Act 1993. Rodney William Button and the Port Vincent Progress Association Inc respectively made representations objecting to both applications. Both persons appealed to this Court in respect of each decision of the Development Assessment Commission. The Court directed that the 4 appeals be heard together.

2 There having been no resolution of the matters at a conference held between the parties pursuant to Section 16 of the Environment Resources and Development Court Act 1993, they proceeded to a hearing before the Court, sitting at Yorketown. Accompanied by the parties and their representatives, the Court viewed the proposed aquaculture development sites and the locality at Port Vincent and also viewed existing aquaculture developments for the cultivation of Pacific oysters in the coastal waters of Gulf St Vincent, adjacent to Stansbury.

3 The applications are for development, within the meaning of the Development Act: see the definitions in Section 4(1). In accordance with Section 34(1)(b)(iv) of the Development Act, the Development Assessment Commission was the relevant authority in relation to the applications. However, the proposed developments were categorised neither as category 1 development, not being aquaculture development in an aquaculture zone delineated by the relevant aquaculture management plan under the Fisheries Act 1982 (see Development Regulations 1993 Schedule 9 clause 9), nor category 2 development, and thus were dealt with by the Commission as category 3 developments.

4 The proposed developments are of a kind described in clause 4(2) of Schedule 21 of the Development Regulations, which schedule designates activities of environmental significance. Pursuant to Section 37(1) Regulation 24(1) and Schedule 8, the applications were required to be referred to the Environment Protection Authority for a report, to which the Commission was required to have regard in each case. The Act and Regulations also required the applications to be referred to the Coast Protection Board for comment, to which the Commission was required to have regard: Development Regulations Schedule 8 clause 1.

5 At the outset, it was necessary to determine certain preliminary issues, namely the relevant Development Plan against which the applications should be assessed, and for that purpose, the date upon which the application was made: Section 53(2), Development Act.

6 The development applications were both dated 21 January 1997 and were lodged shortly thereafter. The relevant fee in each case was not paid at that time. The fees were paid on 5 January 1998. The Commission, through its delegate, the Aquaculture Committee, considered the applications. The form used for each application was described on its front page as a "joint application relating to the requirements of the Planning Act, the Crown Lands Act and the Fisheries Act." We were informed that the application was a multi-purpose application, for approvals required by the developer under the Fisheries Act 1982, the Harbors and Navigation Act 1993 and the Development Act 1993. We determined that the applications were properly made only on 5 January 1998, when the fees were paid.

7 Section 39(1) of the Development Act provides that an application must be accompanied by the appropriate fee, in addition to fulfilling other requirements there specified. Regulation 15(1) states that an application must be in a form which complies with the requirements of Section 39(1), and sub-regulation (2) prescribes, by reference to Schedule 6, the fees payable, which must accompany the application pursuant to Section 39(1)(d).

8 There was no decision on the part of the Development Assessment Commission to waive the fee or part thereof. Clearly, in this case the applications were acted upon, although not decided, by the Commission prior to 5 January 1998. However, the applicant had no right to have the applications determined prior to payment of the fee, namely 5 January 1998. Accordingly, the applications only became validated or enlivened on 5 January 1998.

9 The Development Act provides (Section 33) that an application is to be assessed against the relevant provisions of the appropriate Development Plan. The "appropriate Development Plan" is also the "relevant Development Plan" : see Section 35.

10 There was no relevant Development Plan in existence as at January 1997. The area of the proposed developments is seaward of the low water mark adjacent to the land on which the Port Vincent township stands. The Minlaton (DC) Development Plan authorised on 1 February 1996 applied to the whole of the area of the (then) District Council of Minlaton, within which the township of Port Vincent was located. The coastal boundary of the Council area in this vicinity was the low water mark, which is confirmed by statements in that Development Plan : see, for example, Map Min/19. By its own terms, the Development Plan for Minlaton (DC) applies only to the area of the District Council of Minlaton.

11 Although not within a Council area, the sites the subject of the applications are within the coastal waters of the State of South Australia : see Constitutional Powers (Coastal Waters) Act 1979.

12 In July 1996 the Gulf St Vincent/Fleurieu Aquaculture Management Plan was published by the Department of Primary Industries. On 28 August 1997 a new Minlaton (DC) Development Plan was authorised, as was a new Development Plan entitled Land not within a Council Area (Coastal Waters) Development Plan. Both Development Plans were in force at 5 January 1998. The Minlaton (DC) Development Plan is said to apply within the area of the District Council of Minlaton.

13 On 6 February 1997 the District Council of Minlaton was amalgamated with the District Council of Yorke Peninsula, Yorketown and Warooka to form the District Council of Yorke Peninsula. Of course it is possible to identify the geographic area of the former District Council of Minlaton. It does not include the area seaward of the low water mark in St Vincent Gulf. However, there is an objective and a number of principles of development control within this Development Plan which deal with marine aquaculture and which appear to reflect provisions of the Gulf St Vincent/Fleurieu Aquaculture Management Plan. Notwithstanding these provisions, the Minlaton (DC) Development Plan dated 28 August 1997 does not apply to the subject applications.

14 The Land not within a Council Area (Coastal Waters) Development Plan is expressed to apply "to those areas outside of the Development Plans for the geographic areas assigned to the responsibility of a Council (Out of Council)". The preface to this Development Plan continues, "it is the area three nautical miles seaward of the low water mark, and includes the off shore islands and the land three nautical miles seaward of low water mark around the off shore islands." It is clear that the areas the subject of the applications is part of that to which the Out of Councils (Coastal Waters) Development Plan is addressed. We also note that all of the provisions relevant to marine aquaculture which appear in the Minlaton (DC) Development Plan authorised 28 August 1997 also appear in the Out of Councils (Coastal Waters) Development Plan of the same date.

15 We determined that the relevant Development Plan was the Out of Council (Coastal Waters) Development Plan authorised 28 August 1997. If we have erred in determining that the relevant date for determination of the relevant Development Plan was 5 January 1998, and as a result the relevant date is 21 January 1997, then there was no appropriate or relevant Development Plan.

16 The developer finally sought approval to establish two aquaculture sites of 10 hectares each, for the intertidal cultivation and holding of Pacific oysters, using the longline method, at the following locations:

(1) on land enclosed within a polygon, the four corners of which are the following Australian Mapping Grid reference points in Australian Mapping Grid Zone 53:

(2) on land enclosed within a polygon, the four corners of which are the following Australian Mapping Grid reference points in Australian Mapping Grid Zone 53:

The most westerly point of the western site lies at a distance of approximately 2.6 kms from the shore. The structures that will be established on each site will be rows of 75mm diameter chromated-copper-arsenate (CCA) treated pine (permapine) type C posts spaced 3.0m apart, each supporting adjustable longlines from which plastic mesh baskets will be suspended. There will be 3 baskets on each 3.0m length, between posts. When fully developed, the rows will be parallel in groups of 3, spaced 750mm apart, with a distance of 7.5m between the central rows of each group. The posts will be 2.1m high, embedded in the sea floor to a depth of 900mm. The oysters will be cultivated in the mesh baskets. The longlines will be able to be raised or lowered, and held in position by means of nail clips affixed to the posts. Navigational markers, as required by law, are to be placed on the four corners of each site.

17 In addition to the development authorisation required by the developer, there are other legislative requirements.

18 Where the land is subjacent land (see the Harbors and Navigation Act) under the care, control and management of the Minister responsible for administering the Harbors and Navigation Act, a person must obtain a lease of, or licence over, the land, from the Minister. We were informed that the Minister has delegated her powers to the Minister responsible for administering the Fisheries Act. Where land is under the care, control and management of the Minister administering the Fisheries Act, that Minister is empowered to grant a lease or licence to occupy and use an area for fish farming, for a maximum period of ten years, generally to the exclusion of all other persons, subject to the terms of the licence. The Fisheries Act also requires that a person must be authorised by a permit granted by the Director, to bring exotic fish (including Pacific oysters) into the State and to release exotic or farm fish.

19 As a consequence of the need to obtain a lease or licence under the Harbors and Navigation Act or the Fisheries Act, the location of the proposed development was, in each case, subject to various considerations, and thus, after discussions with relevant officers, amendments were made concerning the precise locations of the proposed oyster leases, culminating in the application finally submitted for consideration by the Commission which is now before this Court.

20 The role of this Court is to assess the proposed development against the provisions of the relevant Development Plan, having regard to the comments of agencies to which the application was statutorily referred. It is not our role to take into account those policy considerations required to be considered by the Ministers responsible for administering other legislation, except insofar as they do also constitute planning considerations which have been incorporated into the relevant Development Plan.

21 We were made aware of the existence of the Gulf St Vincent/Fleurieu Aquaculture Management Plan published in July 1996. This is not a document against which we are required to assess the development. It may explain the policy of the Minister responsible for administering the Fisheries Act, and part of its contents may have been incorporated into the relevant Development Plan.

22 As one would expect, the relevant Development Plan, namely, the Land Not Within a Council Area (Coastal Waters) Development Plan authorised 28 August 1997, addresses at some length marine aquaculture development. Planning policy is set out in the comprehensive Objective 35 and a number of principles of development control. The provisions are sometime repetitive, but they provide comprehensive criteria against which to assess an application for marine aquaculture development. A number of issues were addressed by the parties and we will deal with these under separate headings.

1. Development of Marine Aquaculture in an Ecologically Sustainable Manner

23 The policy expressed in Objective 35(a) and Principle of Development Control 12 seeks development of the marine aquaculture industry in an ecologically sustainable manner. The term "ecologically sustainable" is not a term which is defined either in the Development Regulations or in the Development Plan. However, the concept of ecologically sustainable development is generally understood to mean "development which aims to meet the needs of the community today, while conserving our ecosystems for the benefit of future generations" (see National Strategy For Ecologically Sustainable Development, AGPS, 1992 at page 6).

24 In May 1992, the South Australian Government, together with other State and Territory Governments, the Federal Government and the Local Government Association was a party to the Intergovernmental Agreement on the Environment ("IGAE"), whereby it was agreed that environmental considerations would be integrated into government decision-making processes at all levels (Clause 3.4) and that specified principles should inform policy-making and programme implementation (Clause 3.5). Those principles were identified as the precautionary principle and the principles of intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms. In December 1992 the Council of Australian Governments (COAG), of which the Government of South Australia was a member, endorsed the National Strategy For Ecologically Sustainable Development ("the National ESD Strategy"), and agreed "that the future development of all relevant policies and programmes, ....., should take place within the framework of the ESD Strategy and the Intergovernmental Agreement on the Environment which came into effect on 1 May 1992" (the ESD Strategy at page 14). The core objectives of the ESD Strategy are threefold, being what is generally known as the principles of ecologically sustainable development. Those principles, in a different form, were set out as the "principles of ecologically sustainable development" in the Environment Protection Act 1993, for the purpose of establishing principles, the promotion of which was expressed to be one of the objects of the Act.

25 The Development Act at Section 23(3)(a)(i) provides that a development plan may include "planning or development objectives or principles relating to the natural or constructed environment and ecologically sustainable development". In the absence of any definition of the term "ecologically sustainable development" in the Development Act, which was enacted after the IGAE and the National ESD Strategy, it may be implied that the term "ecologically sustainable", when used in relation to "development" in the provisions of the relevant Development Plan, embraces the principles of ecologically sustainable development. Thus, a relevant authority and this Court should take care not to approve development where serious or irreversible damage to the environment is a likely consequence, in the interests of present and future generations and the conservation of biological diversity and ecological integrity, except where it is impracticable to avoid such damage. This is only common sense. We cannot think of a situation where it could reasonably be concluded that a proposed aquaculture development should be approved although it would be impracticable for the development to avoid serious or irreversible harm to the environment. Will the aquaculture development proposed by the applicant before us be located, sited, designed and constructed to be ecologically sustainable?

26 It is accepted that marine aquaculture in South Australian coastal waters is a relatively new industry. While there is a body of research which has addressed the effects of marine aquaculture and in particular the longline cultivation of oysters, it is based on relatively recent monitoring results. It would be difficult to conclude that the scientists are yet aware of the full consequences for the environment of intertidal longline oyster cultivation. Nonetheless, we do not understand the principles of ecologically sustainable development and in particular the precautionary principle to mean that development should not proceed simply because the full consequences for ecological processes upon which life depends, are unknown. The precautionary principle applies to caution against approving development where there is a threat of serious or irreversible damage to the environment. When a threat of that nature is likely, then it would not generally be appropriate for development to proceed. Similarly, in assessing the proposed development against Principle of Development Control 12 and Objective 35(a), a relevant authority and this Court should be cautious where there is shown to be a serious question as to the maintenance of the health, diversity and productivity of the environment, or as to the conservation of biological diversity and ecological integrity, raised by the proposed aquaculture development.

27 Any development will result in change to the environment. Some would argue that any change will result in detriment to the natural environment, but our concern is as to the seriousness of the consequences for the natural environment.

28 The growth of sea grasses will be affected initially when the posts for the longline cultivation system proposed are embedded in the sea floor. There will also be some disturbance to the sea floor when this work is carried out. However, we are satisfied that disturbance will be minimal, and the area will recover quickly, based on the evidence in relation to the longline systems already established in the offshore waters of St Vincent's Gulf.

29 Light penetration is important for the growth of sea grasses. Light penetration is reduced by the shade of structures, epiphytes growing on the sea grass and phytoplankton blooms. The number of epiphytes growing on sea grass and the presence of phytoplankton blooms is directly related to high nutrient input into the seawater, for example, from sewerage outfall or high volume runoff from agricultural land subject to the use of certain herbicides, pesticides and fertilisers. We are satisfied that the proposed development will be located sufficiently far offshore for the nutrification of the area to be minimal. In addition, the experience with the longline cultivation of oysters in South Australian waters has shown that the amount of shade cast by the posts, wires and baskets is not likely to be seriously detrimental to the growth of seagrasses.

30 Seagrasses are important to the health of the marine environment. They can also be damaged and their presence depleted directly, as a consequence of the dragging of boat anchor chains. This will give rise to localised destruction of seagrasses as has been shown by studies carried out in Western Australian waters. It is not proposed to attend to the oysters in cultivation by means of a boat having anchor and chain. On the view, we had the benefit of travelling in a vessel of a similar type to that which would be used to service the aquaculture development. The vessel may be secured in a certain location by the use of poles which, by being inserted into the sea floor through the vessel, hold the vessel firmly in place and prevent any dragging. In any event, we were informed by Mr Dee of the applicant company that cultivation duties would be carried out by one or more employees who would travel in the type of vessel referred to above, from the shore to the aquaculture lease site, and who would then attend to the oysters while manually pushing the boat between the rows of posts. We are satisfied that the method of maintenance proposed is unlikely to give rise to any detrimental consequences for the seagrasses.

31 Another concern was in relation to the posts to be used for the structures. Permapine posts are proposed. The use in seawater of permapine posts which have been treated with CCA, is relatively recent. The CCA metals appear to abound in marine environments, but high concentrations of CCA in the marine environment can be toxic to marine life (Brooks, K M "Literature Review and Assessment of the Environmental Risks Associated With the Use of CCA and ACZA Treated Wood Products in Aquatic Environments", July 8, 1993). However the present evidence does not suggest that the posts, provided they have been properly treated with CCA and the procedures for fixation observed, are likely to leach material into the seawater or seabed, at the sites, at sufficient concentration to cause serious injury to the marine environment. Of course, there can be no certainty in this respect, but we are satisfied that the use of properly treated and fixated CCA posts would be unlikely to result in serious damage to the environment.

32 The next concern with respect to damage likely to be caused to ecological processes and ecosystems was in relation to the "escape" of the cultivated Pacific oysters, namely the spawning of feral oysters. It is feasible that should the proposed development result in significant numbers of feral or escaped Pacific oysters, detrimental consequences could follow, not only for the native oyster (Ostrea angassi), but also for the local marine ecology including other marine species native to Gulf St Vincent. Again, the industry is new in South Australian waters and the monitoring programmes (Shellfish Environmental Monitoring Programme (SEMP); Oyster Environmental Monitoring Programme (OEMP)) may not have been carried out over a sufficiently long period for a final determination to be made on the potential for the establishment of colonies of escaped Pacific oysters and the consequences, should colonies be established. SEMP commenced in 1991, and OEMP began in 1997. OEMP monitors the environmental effects of intertidal oyster farming developments. Pacific oysters are native to the northern Pacific waters (Japan and Korea). Successful spat fall requires low salinity conditions and suitable substrates. The posts would provide the latter. Reproduction of oysters depends on temperature. All spawning occurs in summer, when salinity in the Port Vincent waters is very high (42 parts per thousand). Pacific oysters are known to require salinity levels of between 20ppt and 30ppt to settle successfully. On the evidence presently available, the escape of Pacific oysters in significant numbers to have an effect on the ecosystem, is unlikely. In so concluding, we have had regard also to the results of the SEMP and OEMP in relation to the existing oyster farms in marine waters in South Australia. We are satisfied that the prospect of feral oysters developing in numbers likely to seriously affect the marine environment, is remote. In so concluding, we note that the results from Franklin Harbor where the salinity level is also high, do tend to show that the Pacific oyster may have begun to adapt, so that neither temperature nor salinity will limit spat settlement in South Australian waters in the future (Hone, Dr P "Summary of Existing Data Collected for the Shellfish Environmental Monitoring Program (SEMP) 1992 to 1994" May 1996). However, the settlement rate is presently very low in percentage terms, having regard to the number of oysters cultivated there. We also note that monitoring shows no evidence of spat settlement at Stansbury, over 10 years, or at Coobowie, which being closer to Port Vincent are likely to have similar conditions.

33 Oysters are filter feeders. They feed on microscopic organic particles existing in the sea. They will not need to have any food introduced by the oyster grower. Oysters reject indigestible material, which can build up as sediment on the sea floor. The rate at which sediment builds up at a site will depend on the density of the oysters there. High densities of oysters could also impact on other filter feeders in the locality. One of the purposes of the OEMP is to monitor the environmental effects of intertidal oyster farming. There is no present evidence of build up of nutrients under oyster farms in South Australian waters. Water quality measurements are made and assessed against State water quality guidelines. Reports are provided to authorities. We were informed that a maximum of 100,000 Pacific oysters of 80mm would be permitted per hectare of lease, pursuant to a standard condition of a licence to farm fish required to be issued under the Fisheries Act. As the densities proposed must be within the limits set by the Minister for Primary Industries and Resources who is the licensing authority under the Fisheries Act, we are satisfied that the volume of nutrients deposited by the oysters in the course of filter feeding, in the aquaculture development proposed, will not result in a threat of serious environmental damage.

34 Objective 35(i) and Principles of Development Control 16(a), 18 and 40(b)(iii) are addressed to the impact of aquaculture development on visual amenity. It was asserted, with some concern on the part of the appellants, that the proposed intertidal farming of oysters at the sites, with the large number of posts necessary, would have a significant impact on visual amenity.

35 On the view taken by the Court, we were fortunate to be able to see and view from a distance, the existing, partially developed aquaculture site operated by the applicant Company, offshore from Stansbury, at close to low tide. We viewed the oyster leases both from the shoreline and an elevated position in the township of Stansbury, estimated to be approximately 20 metres above sea level. At Port Vincent, the Court took views of the proposed sites from the shoreline, an elevated position in the township of Port Vincent, estimated to be at a maximum height of 30 metres above sea level, and from a cliff-top lookout point near to the entrance to the golf course, north of the township. At Stansbury the oyster leases are situated at a distance of 2,200 metres from the shore, at the closest point. Of the proposed oyster leases at Port Vincent, that closest to the shore is at a distance of approximately 2,600 metres, at its nearest point.

36 The proposed sites are on part of the spit offshore from Port Vincent. The posts will rise 1.2 metres above the sea floor. At the lowest tide recorded, most of each post above the sea floor will be exposed. At the highest tides the posts will be completely covered. The top of the posts will be just below mean sea level. A part of the spit known as "Bird Island" is exposed at the lowest tides, namely when the tide is approximately 0.3 metres. On the evidence of Mr Munroe this occurs about 20 times a year. On perhaps three or four occasions a year Bird Island is used by a few residents of Port Vincent for a recreational occasion including picnicking and beach cricket. Bird Island is north of the proposed oyster lease sites, being at a distance of between 600 and 800 metres north of the most northern point of the lease sites.

37 Port Vincent is a popular holiday and recreational centre. It is a neatly kept town. Port Vincent has regularly won the KESAB "Tidy Towns" award in its category. It has a Progress Association which has achieved much for the town and has much of which it can be proud. The relevant Development Plan identifies the town's primary function as a service centre for the surrounding agricultural areas, but seeks to encourage its secondary role of development as the principal holiday and recreational centre of the district (Objective 5 - Minlaton (DC) Development Plan). Clearly the waters of Port Vincent are used for a variety of aquatic sports and recreational pursuits. There is an Aquatic Centre at the Port Vincent Primary School. An aquatic environmental education programme is run by the Centre and caters for local students and those visiting from other schools in the State. The students conduct studies at, and collect marine specimens from, the reef in the waters north of the Port Vincent township, near to the golf course entrance and the lookout point from which the Court viewed the area of the proposed sites. Other programmes, also involving local students and groups from other schools, teach wind-surfing, kayaking, sailing, snorkelling, swimming and diving. The aquatic activities are limited to an area which extends from the shore seaward for a distance of one kilometre. In addition to the aquatic activities, including recreational boating and fishing, pursued by holiday-makers and residents of Port Vincent, members of the Port Vincent Sailing Club sail in the waters off Port Vincent particularly during the sailing season, which is from late October/early November through to late March/early April in the following year. The population of Port Vincent includes commercial fishermen, who fish and travel through the adjacent sea.

38 There is concern that participants in aquatic activities, as well as residents of and visitors to the township, will have their visual amenity affected by the proposed development.

39 We do not accept that the development will adversely affect visual amenity to any significant degree. The posts and baskets will not be visible at all times but some of the posts are likely to be visible for some part of every day. Insofar as the Development Plan seeks to preserve the amenity of the view of the coast from seaward, we conclude that there will be no detrimental impact. Given the location of the leases and the distance between them and the location of most of the aquatic activities carried out in the waters of Port Vincent, we do not agree that there will be a major adverse impact on visual amenity for the participants in aquatic activities. We have not concluded that the area in which the leases are to be located is of outstanding visual value or beauty. The area including the township and the waters of Port Vincent has significant tourism value. However we are not of the view that the development will significantly adversely affect this area. We have come to that conclusion because the farm structures will have a low profile when viewed from the sea or at shore level, and when viewed from elevated positions within the township of Port Vincent and the lookout to the north of the township, will have no profile. They will not blend completely with the marine environment but it is our view, based on the evidence and the Court's observations of the applicant's Stansbury development, that the structures will introduce a new visual element but will not be visually obtrusive.

3. Development Maintaining Public Access to Coastal Areas

40 The policy seeks to have the marine aquaculture industry developed so as to maintain public access to coastal areas including waters and minimise adverse impacts on the beaches and foreshore : Objective 35(h) Principles of Development Control 24(a)(f), and 25.

41 There is a boat ramp at Port Vincent, completed in about 1974. The developer will use the boat ramp in the course of the development and servicing of the aquaculture sites. Accordingly there will be no damage to coastal areas through the use of new access points. There will be no adverse impacts on beaches or the foreshore.

42 The applicant's employees would travel to and from the site on at least six days per week, with the vessel departing the boat ramp prior to low tide, usually about or after 10.00am and returning before or about 2.00pm. There was no evidence that more than one visit to and from the sites would be made in the course of a day. Use of the boat ramp by the applicant would not unduly impact on other users.

43 There are various provisions of the Development Plan whereby marine aquaculture development should be developed in a way that meets safety standards including navigational safety, namely Objective 35(e) and Principles of Development Control 24(d), 37(a) and (b). We are satisfied that what is proposed will meet the requirements of those provisions of the Development Plan. The proposed development will not give rise to safety issues so as to be at variance with the Development Plan.

44 Many of the provisions of the Development Plan reflect policy that is set out elsewhere, including the Gulf St Vincent/Fleurieu Aquaculture Management Plan dated July 1996. One of these provisions is Principle of Development Control 24(c), requiring aquaculture development to be located at least 100 metres seaward of the high water mark. The development well and truly meets the requirement.

5. The Fair and Equitable Sharing of Marine Resources

45 At Principle of Development Control 40, the Development Plan encourages marine aquaculture development to be carried out in a manner which ensures a fair and equitable sharing of marine resources, which minimises conflict between legitimate users of the marine resource and which does not significantly disrupt or adversely affect sites used for recreational activities.

46 The spit, part of which will be occupied by the sites, extends in a north-easterly direction from Surveyor Point, in the southern part of the township of Port Vincent. It has a length of nearly four kilometres. Persons will be prevented from entering upon the sites, once the relevant Minister has granted exclusive occupation rights to the applicant, which will be a necessary precursor to the establishment of the oyster farms. The proposed sites will remove approximately eight percent of the area of the spit from public use. We reject the assertion that the proposed development "will effectively prohibit any further public recreational use and/or enjoyment of a large part of the sand spit" (evidence: Mr J L McDonnell). Indeed, the uncontested evidence was that the establishment elsewhere of the oyster farms of the nature here proposed has attracted fish to the vicinity. Thus, additional recreational fishing opportunities might result.

47 Although one commercial fisherman gave evidence as part of the first appellant's case, claiming that the setting aside of the sites from public use would disadvantage him, we are not satisfied that either the witness (Mr David M George) or any other person, would be unfairly disadvantaged by the establishment of the sites. Nor do we believe that any person would be significantly obstructed or adversely affected by not being able to traverse the area of the sites. There are no other oyster lease sites in the waters of Port Vincent. There are no other obstructions preventing fishing or other recreational activities on or in the vicinity of the spit, or passage over the spit when it is appropriate. We are not satisfied that Mr George relies on always catching fish at the precise location of the sites.

6. Development in a Manner which Recognises the Economic Benefits to the Community

48 Objective 35(k) encourages development of the marine aquaculture industry in the area covered by the Development Plan "in a manner which recognises the social and economic benefits to the community". Much argument was devoted to the meaning of "the community" with respect to the economic benefits that might flow from the proposed development. The appellants submitted that "the community" meant the local community and that there was no evidence that economic benefits would flow to the local community.

49 The meaning of Objective 35(k) is far from clear. How can the marine aquaculture industry be developed at the sites in a way which recognises the economic benefits to the community, whether it be the local or the wider community? It is to be noted that the principle does not read "in a manner which provides economic benefits to the community". A logical interpretation would seem to be that the principle incorporates a statement that economic benefits will flow to the community from development of the marine aquaculture industry, and urges that development should proceed in a manner which recognises this as fact. It follows from so reading the principle that "the community" must mean the community of South Australia. We so conclude because the Development Plan speaks in respect of all the coastal waters of the State and addresses the development of the marine aquaculture industry in those waters, generally. The evidence that successful development of the industry will result in economic benefit to South Australia, is persuasive.

50 Having given much thought to the meaning of Principle of Development Control 35(k), we can only conclude that it urges the developer to plan a development so as to ensure the maximum chance of success, having regard to the economic benefits that the marine aquaculture industry will provide to the State. In other words, the principle is encouraging the developer to proceed in a way that will spell success! We cannot say that the development is planned otherwise than in a manner which recognises the likely economic benefits to the community of South Australia, of a successful marine aquaculture industry.

51 It is our concluded view that the decision of the Development Assessment Commission to grant provisional development plan consent, in each case was correct.

52 I have read the decision of Judge Trenorden and Commissioner Hodgson and I am in general agreement with their comments. I also conclude the proposal is to be approved. However, I add the following.

53 This development throws up an issue which lies at the very heart of town and country planning; ie, competition for the use of "common lands". Port Vincent is a popular and busy holiday centre. It is also home for an increasing number of retirees. Its significant - indeed, perhaps its most significant - attraction, is its bay and off-shore waters within which the Middle Spit itself is of great significance. The Spit attracts boaters, recreational fishers and many others who enjoy holidays and leisure time on the sea. I am satisfied by the evidence of those townspeople who appeared before us that they represent those in the community at large who view the Spit as an integral whole and as an essential part of the recreational resource base of Port Vincent. The "fencing off" of a portion as is proposed will therefore diminish its integrity. As they see it the ocean - or at least that portion of it at the township's doorstep - is a common area open to all.

54 This alienation of "common lands" is, as I have said, a fundamental planning issue; albeit one more usual on land than on water where, for example, the competition by commercial uses on the one hand and community activities on the other, for the squares and parklands of Adelaide and of country towns, throw up basic principles of land use allocation.

55 However, these basic principles perforce are to be examined through the prism of the relevant development plan. Those dealing with the land areas of the State often contain provisions that speak for the retention of parklands and other "common lands" and against their alienation for commercial purposes. But what is the situation here? Inasmuch as the Coastal Waters Development Plan deals with competing activities upon the sea rather than on islands or the littoral, there is emphasis on commercial aquaculture development but little, if any, emphasis on the promotion of recreational activities or the retention of the sea as an untrammelled resource for the community as a whole. Indeed, the Plan contains a specific heading of "Aquaculture Development". This being so, the introductory sentence of Objective 35, viz:

"Development of the marine environment and in particular the marine aquaculture industry:"

must be given very considerable weight, and provisions such as part (d) of the Objective and Principle of Development Control 40 which refer to recreation and public use, must be subordinated accordingly.

56 I can but conclude therefore that the thrust of the plan favours the proposed development.

57 The decision to grant provisional development plan consent to the applications is confirmed, subject to conditions, which the Court has varied, following submissions from the parties. The conditions now imposed are those relevant to planning considerations in respect of each application.

(A). That provisional development plan consent be granted to development application 010/006/97 to establish an aquaculture site for the intertidal cultivation and holding of Pacific oysters (Crassostrea gigas), using the longline method, at the following location:-

that land within St Vincent's Gulf, having an area of 10 hectares, and enclosed within a polygon, the four corners of which are the following Australian Mapping Grid reference points in Australian Mapping Grid Zone 53:

1. The development hereby approval shall be carried out in accordance with the information submitted with the application, unless varied by the following conditions.

2. All structures, equipment, buoys and floatations (excepting those which may be required by the Minister administering the Harbors and Navigation Act 1993 and the Minister administering the Fisheries Act 1982), must be of a single colour, being one of the following: black, dark grey, dark blue, dark brown, or dark green.

3. Each unit is not to exceed one hundred and twenty five (125) metres in length and two (2) metres in width and each unit must be at least four (4) metres from any other unit. A "unit" is defined as a set of three parallel longlines bounded at each end by a common strainer post.

4. All structures shall be adequately secured and sufficiently weighted to ensure that they do no drift outside that area which has been developed.

5. No structures (excepting navigational aids) shall protrude more than 100mm above the water at mean neap high tide.

6. Human waste shall not be discharged into the approved area or the adjacent area.

7. The approved area shall be maintained in a good condition with necessary repairs being carried out promptly, to the reasonable satisfaction of the Development Assessment Commission. All reasonable measures to prevent the escape of debris from the approved area shall be undertaken. In the event of the escape of any debris associated with the development (including any dead stock), the debris must be removed from the sea or shoreline and disposed of in a legally approved manner.

8. When the area is no longer used for aquaculture, the approved area shall be returned to its condition prior to commencement of the approved development. All structures shall be removed and the cost of such removal and reinstatement shall be borne by the operator.

9. No craft shall be used under power in the approved area unless a minimum distance of 30cms can be maintained between the propellor of such craft and the highest point of the seagrass or the seafloor, whichever is higher.

(B). That provisional development plan consent be granted to development application 010/007/97 to establish an aquaculture site for the intertidal cultivation and holding of Pacific oysters (Crassostrea gigas), using the longline method, at the following location:-

1. The development hereby approval shall be carried out in accordance with the information submitted with the application, unless varied by the following conditions.

3. Each unit is not to exceed one hundred (100) metres in length and two (2) metres in width and each unit must be at least four (4) metres from any other unit. A "unit" is defined as a set of three parallel longlines bounded at each end by a common strainer post.

4. All structures shall be adequately secured and sufficiently weighted to ensure that they do no drift outside that area which has been developed.

5. No structures (excepting navigational aids) shall protrude more than 100mm above the water at mean neap high tide.

6. Human waste shall not be discharged into the approved area or the adjacent area.

Powers (Coastal Waters) Act 1979

Resources and Development Court Act 1993

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)

Parties

Legislation Cited (5)