TUNA BOAT OWNERS ASSOC OF SA INC v DAC & ANOR No. SCGRG-99-1586 [2000] SASC 238

1 DOYLE CJ. The Tuna Boat Owners Association of SA Inc ("the Association") sought development consent from the Development Assessment Commission ("the DAC") pursuant to s 33 and s 34 of the Development Act 1993 ("the Act").

2 The proposed development for which the Association sought consent was described as "Aquaculture Development" in the application. The proposal involves the establishment of tuna farms in the waters of Louth Bay in Spencer Gulf.

3 The DAC approved the application, subject to certain conditions. The Decision Notification Form describes the proposed development as "Establishment of a 20 hectare tuna farm in the waters of Louth Bay, adjacent Louth Island". The Notification identifies the land to be used as "approximately twenty hectares of land and water that flows over this land", and goes on to give grid reference points that identify the area.

4 The Conservation Council of SA Inc. ("the Council") appealed against that decision. The Environment Resources & Development Court ("the ERD Court") allowed the appeal and reversed the decision of the DAC.

5 The Association appeals to this Court pursuant to s 30 of the Environment Resources and Development Court Act 1993. Leave having been granted, the appeal is on questions of law and fact: s 30(2).

"We accept that an adaptive management approach, implemented by way of licence conditions to achieve ecologically sustainable development, which could be varied in response to new knowledge, is one means by which the development could proceed in an ecological (sic) sustainable manner".

The ERD Court said that this approach could not be achieved by using conditions imposed under s 42 of the Act. There is no challenge to that conclusion. The Court then said:

"... a licence granted pursuant to section 53 of the Fisheries Act cannot be the means of ensuring the ecologically sustainable management of the proposed development".

As there was no means to ensure ecologically sustainable management, the ERD Court allowed the appeal and set aside the decision of the DAC.

7 The Association challenges that last conclusion. That is the main issue on appeal, although there is also a point about the jurisdiction of the ERD Court.

8 In setting out the facts I propose to be quite brief, because this case does not turn on the facts. Nor were the findings of fact challenged.

9 Tuna farming is a new industry in South Australia. There is limited information about its long term impacts on the marine environment. It is fair to say that at this stage the long term impacts cannot be predicted with confidence.

10 The tuna are caught in a purse seine net, and towed in towing pontoons to the proposed farms. A farm comprises a number of cages. Each cage is about 30 metres to 40 metres in diameter. A cage is formed of about six pontoons, from which a net is suspended to a depth of about 12 metres. The cage is held in position by between six and twelve mooring devices, weighing about one tonne each. They rest on the sea bed. A cage remains in place for about nine months, and then will be moved to a new location within the 20 hectare area of the proposed farm. The tuna are fed and grown in the cage, then harvested and processed on land.

11 The positioning and use of a cage involves the exclusive occupation of an area of the surface of the sea, and for all practical purposes of the water and subjacent sea bed. As the ERD Court said:

"In practical terms, the seabed beneath the farm pontoon could not be used while the pontoon was moored in place. Debris, namely faecal matter and uneaten food which would drift down to the sea-floor, and the turbidity of the water, resulting from the farming of tuna in the net suspended from the pontoon would effectively preclude any other use of the land below the farm pontoon. If the development was to proceed, the farm operator would be using the land beneath the pontoon."

To the extent that that is a finding of fact, it was not challenged.

12 By s 33 of the Act, the development had to be assessed against the provisions of the appropriate Development Plan. The appropriate Development Plan is the Land Not Within a Council Area (Coastal Waters) Development Plan ("the DP"). I will refer only to the most significant of the relevant provisions of the DP. Objective 35 of the DP is:

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

(b) in a manner which recognises other users of marine and coastal areas and ensures a fair and equitable sharing of marine and coastal resources;

(c) to conserve environmental quality, in particular water quality, and other aspects of the coastal environment including sea floor health, visual qualities, wilderness, ecosystems and biodiversity".

Subparagraphs (d) - (k) list other particular matters to be considered, including "social and economic benefits to the community". Principle 12 of the DP provides in part as follows:

"Marine aquaculture should be located, sited, designed, constructed and managed to be ecologically sustainable, to minimise interference and obstruction to the natural processes of the marine environment, and to allow maintenance of the environmental quality of the foreshore, coastline, ocean and ocean bed".

Subparagraphs (a) - (l) then provide for specific matters to be considered.

13 The issues before the ERD Court arose under Objective 35 and Principle 12. The main issues that arose were identified by the ERD Court as follows:

"The specific major issues addressed were ecological sustainability, the impact of the development on the growth of the seagull population and consequently upon the native and migratory birds, the impact on marine mammals and pinnipeds, the impact of using imported frozen pilchards as feed for the farmed tuna, the likelihood of ecosystem changes in the benthic and pelagic environments, the impact of the pontoons upon the visual amenity of the seascape, the potential for impact upon the nearby beaches and recreational sites by reason of the escape of debris and material from the farm sites, and the suitability of the site generally for tuna aquaculture".

14 The ERD Court first had to consider if the proposal was development for the purposes of the Act.

15 The Court decided that the proposal did not involve building work as defined in the Act. That is not challenged.

16 The Court decided that the proposal involved a change of use in land. It reasoned that the pontoon was a fixture because it was temporarily affixed to the seabed. Because land is defined by the Act to include a fixture to land, and the pontoon was a fixture, that meant that the seabed to which it was temporarily affixed was land. I respectfully doubt whether that is correct. A thing is a fixture only if it is affixed to land. It seems to me to be reasoning in reverse to argue that something is land because it has a fixture attached to it. However, it is not necessary to decide this point.

17 The ERD Court decided as well that a farm operator uses the seabed. I have set out above a short extract from the Court's reasons in which it found that this was so as a matter of fact. That use comes about because others are excluded from using the seabed, and because material from the farm is deposited on the seabed. The Court concluded that the proposal involved a change of use of the land. That part of its reasoning can hardly be denied. Whatever the use of the seabed before the establishment of the tuna farm, if the seabed is land and is being used, then thereafter it is being used for tuna farming.

18 Surprisingly, the Association challenged this finding. I say it is surprising, because if the proposal does not involve development, there is no need for an approval at all, and the proceedings from the application to the DAC and thereafter were misconceived.

19 Be that as it may, I agree with the ERD Court, but I get to that result by a slightly different route. I accept the submissions by Mr Walter, counsel for the Attorney-General who intervened on the hearing of the appeal.

20 "Land" is defined in the Act to include "land covered with water". Accordingly, the sea bed and the waters above the sea bed are to be regarded as land for present purposes.

21 The proposed development will, on any view, involve a use of the waters above the sea bed. In my opinion, it will also involve a use of the sea bed, for the reasons indicated by the ERD Court. The use of the waters and the sea bed is an on-going use. The fish farmer will not be exercising a mere right of transient passage, or any other common law right that could not fairly be regarded as amounting to a use of the waters and of the sea bed.

22 By s 15(a) of the Harbours and Navigation Act 1993, all "subjacent land" is vested in the Minister. The relevant part of the sea bed is subjacent land because it is "land underlying navigable waters within the jurisdiction": s 4(1).

23 The Minister, for the purposes of this Act, is entitled to assert the Minister's property in the land and waters above the land to exclude the fish farmers. There is no doubt that the use of the waters and sea bed that is contemplated by the Association is inconsistent with the Minister's proprietary rights.

24 Accordingly, from a practical point of view, and for the proposal to proceed lawfully, the proposed development requires the grant of a lease or licence from the Minister pursuant to s 53(1) of the Fisheries Act 1982. Such a licence will confer the "right of exclusive occupation of the marked-off area of the fish farm" by virtue of s 53A(2) of the Fisheries Act. The Association, in any event, proposes to obtain a licence under s 53. This all confirms that the proposal for a fish farm involves the exclusive occupation of land as a matter of law, involves the use of land, and accordingly (as there is no real dispute that there is a change of use) requires the grant of development consent under the Act.

25 The ERD Court noted the emphasis in Objective 35 and Principle 12 on ecologically sustainable development (ESD). It considered certain inter-governmental agreements relating to ESD, and the use of the "precautionary principle" in making decisions with a view to achieving ESD. The precautionary principle means that measures to prevent or to forestall damage to the environment should not be postponed merely because of the lack of full scientific certainty as to the need for such measures. That is, when assessing a development proposal as to which a relevant authority has an incomplete understanding of the risks to the environment, it is appropriate to have regard to such risks, and especially long-term risks, when assessing the proposal even though it is not known that they will eventuate. Relevant risks include the risk of medium or longer term harm emerging as a result of consequences of the development that are not presently known. In such a case the risk of harm from impacts not presently known must be carefully evaluated. In other words, one should proceed with care when the environmental impacts of a proposal are not all known. It is appropriate to take measures that will forestall or prevent the risk of damage to the environment from impacts that are not presently known or not fully understood.

"The onus lies on the proponent to show that the development would meet the policy set out in the Development Plan."

Mr Besanko QC for the Association criticised this passage as wrongly placing an onus on the Association to justify the grant of development consent. He submitted that it was for the Council to show that damage to the environment would result from the proposal, rather than for the Association to show that such damage would not result.

27 I disagree. It is true that generally there is no onus on an applicant for development consent to establish that the development consent should be granted. The relevant authority must simply assess the proposed development against the relevant Development Plan. But in this case, the Development Plan contains an objective and principle that invokes the concept of ESD. That in turn, in a case like the present, invites the use of the precautionary principle, simply because all of the consequences of the proposed development are not known and fully understood.

28 In such a case, assessing the proposal against the Development Plan requires a consideration of whether it is a development which is ecologically sustainable. As the longer term consequences of the proposed development are not known, it is appropriate to require measures that will avert adverse environmental impacts that might emerge.

29 That was the ERD Court's approach. It was open to it to so proceed. The Court did not wrongly impose an onus on the Association in relation to the assessment of the proposal against the DP. The approach of the Court simply reflected what was inherent in one of the matters that the Court had to consider, the issue of ESD.

30 There can be no hard and fast rules about what is required in a case such as this. Everything will depend upon the circumstances of the particular case, especially the level of knowledge about the environmental impacts of the particular proposal. I agree broadly with what the Court said:

"The proponent would have to satisfy the burden of proof by evidence as to the likely consequences of the proposal, including scientific evidence (with its limitations), evidence as to the proposed management regime and measures, and evidence to assist the Court in the assessment of the risk-weighted consequences of the proposal."

This should not be taken as a proposition of law, but simply as an expression in the particular case of what, in general terms, was required before the ERD Court could properly find for the Association when considering whether the development would be managed so as to be ecologically sustainable.

31 The Court then considered a number of issues and concerns that arose in connection with the proposed development. Some of these, it thought, could satisfactorily be dealt with if the operator of the tuna farm adopted sound management practices. But there were other environmental impacts in relation to which the Court's conclusion was that the likely consequences of the tuna farm were unknown, but might well be damaging to the marine environment and to the environment more generally.

"To approve the proposed developments, we would have to be satisfied that they would be subject to a monitored adaptive management regime, with the aim of securing minimal adverse impact on these environments. It is acknowledged that the tuna industry carries out a daily monitoring programme presently, to ensure water quality in the vicinity of the farms, and that the information is transmitted promptly and daily to tuna farmers, for action as necessary. However, the purpose of that collection and analysis is to ensure the maintenance of healthy tuna. We are not satisfied that this monitoring 'covers the field' in terms of the health of the pelagic environment generally."

"We accept that an adaptive management approach, implemented by way of licence conditions to achieve ecologically sustainable development, which could be varied in response to new knowledge, is one means by which the development could proceed in an ecological (sic) sustainable manner."

33 In other words, there were matters about which there was reason to be concerned because of their impact on the environment. As to these matters the Court was indicating that it would grant a development consent only if there existed an appropriate regime for monitoring a sufficient range of the potential environmental impacts of the tuna farm. The Court required monitoring of impacts that might, over time, cause damage to the environment. The Court wanted to ensure that the monitoring was of a type that would detect emerging problems, so that the community would not be confronted with damage to the environment after it had occurred, or was well under way. The Court referred to "an adaptive" regime, indicating that it required a regime under which the conditions under which the fish farm operated could be adjusted in the light of information obtained from the monitoring programme, so as to avert or alleviate adverse environmental impacts that might emerge.

34 That seems to me to be an appropriate approach in the light of the relevant Objectives and Principles in the DP, and in the light of the nature of the proposed development and, in particular, bearing in mind that the medium and longer term impacts of the fish farming are unknown. The DP requires the relevant authority to consider the proposed management of marine aquaculture, and the impact of any such proposed development on the environment. Pursuit of ESD requires careful consideration of the longer term consequences of such development. In such cases, the concept underlying the precautionary principle is obviously appropriate. To say that is not to say that the precautionary principle is elevated to a principle of law. Simply that it is sound commonsense in relation to provisions of the DP such as those in question, and a proposal such as that under consideration here.

35 I do not accept that in reaching the conclusion it did the ERD Court has, in effect, taken the view that the proposed development will not be consented to because all of the consequences that might flow from it are not known. That is not what the Court decided. Obviously, one must take care not to drift into that position. It is clear enough that the ERD Court was saying no more than that it would consent to the proposed development only if there was a monitoring regime that would detect emerging adverse impacts and a scheme of conditions which would enable an appropriate authority to require those impacts to be averted if and when they emerged.

36 Nor do I agree that in so concluding the ERD Court overlooked other relevant matters, such as the economic importance of the activity. It is clear that the issue of ESD was central to the Court's decision. There is no reason to think that the Court disregarded other relevant matters.

37 That brings me to the critical part of the Court's reasoning. It was common ground that an adaptive management regime could not be achieved by the imposition of conditions in exercise of the power conferred by s 42 of the Act.

38 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 does not appear to have been concerned about the types of conditions that could be imposed under that Act. Its concern was that under s 53 there was no power to vary conditions during the currency of a lease or licence. It made the point that although the Minister's current practice was to issue licences for a one year period, a lease or licence could be granted for a term not exceeding 10 years: s 53(1). If the Minister's policy were to change, and a lease or licence were granted for a term as long as 10 years, there would be no scope for what it called an "adaptive management" approach to the fish farming, because the terms and conditions of the lease or licence would be fixed for that period.

39 For that reason the Court did not find it necessary to make a decision about the type of condition that could be imposed under s 53.

40 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.

41 Mr Besanko QC attacked this aspect of the reasoning of the ERD Court.

42 He submitted that acting under s 53(3) of the Fisheries Act, the Minister has sufficiently wide and flexible powers to institute an adaptive management regime. He submitted that conditions imposed by the Minister can ensure that the fish farm was operated in an ecologically sustainable manner. He submitted that if the Minister had powers sufficiently wide to ensure that the fish farm was operated in an ecologically sustainable manner, then having satisfied itself of that the ERD Court should go no further. The ERD Court should not assume that the Minister would not exercise his powers in an appropriate fashion. Nor should the ERD Court interfere with the exercise by the Minister of his powers under the Fisheries Act. The submission appeared to proceed on the basis that if the Fisheries Act conferred powers that enabled the Minister to impose an adaptive management regime, the ERD Court should leave it to the Minister to determine how those powers would be exercised, and should not, in considering the grant of a development consent, attempt to exercise any significant controls over matters within the power of the Minister. Mr Besanko relied upon dicta in cases in which it has been held that a court is entitled to rely upon the appropriate exercise of supervisory powers under statutory regimes controlling activities that required development consent, and dicta to the effect that a planning authority should not intrude upon areas confided to the control of other statutory authorities. He relied upon what Olsson J said in Jurkovic v Development Assessment Commission (1995) 64 SASR 294 at 307 - 308, what Jacobs J said in Lane v Duxsel Pty Ltd (1988) 143 LSJS 454 at 460 - 461 and in Beer v South Australian Planning Commission (1988) 142 LSJS 20 at 25- 26, and what Cox J said in Farrow v South Australian Planning Commission (1988) 145 LSJS 284 at 290 - 291.

43 In short, the submission for the Association is that the ERD Court was wrong in concluding that conditions could not be attached to a licence or lease under the Fisheries Act which would achieve an appropriate adaptive management regime. The Commission should have concluded that such a regime could have been achieved and, on that basis, should have dismissed the appeal, leaving it to the Minister of Fisheries to implement whatever he considered to be an appropriate management regime.

44 In my opinion, the powers available to the Minister under s 53 of the Fisheries Act may be wide enough to achieve ecologically sustainable management of the tuna fishery through an adaptive management regime. The power to impose terms and conditions, conferred by s 53(3) of the Fisheries Act, is unlimited. All that is required is that the power must be exercised for the purposes of the Act. One of the objects of the Fisheries Act, according to the long title, is to provide for the protection of "the aquatic habitat". Section 20 of the Fisheries Act provides that in the administration of the Act the Minister and the Director have as their principal objectives ensuring that "the living resources of the waters to which this Act applies are not endangered or over-exploited". My tentative view is that, in the exercise of the relevant powers, the Minister is entitled to have regard to the ecological sustainability of fish farming the subject of a lease or licence to be granted by the Minister.

45 However, it is not necessary to reach a final decision on this point. Nor, in my opinion, is it desirable in considering the grant of a development consent for this Court or the ERD Court to attempt to reach a definitive view about the types of conditions that the Minister can impose in exercise of the powers available to him. It is difficult to deal satisfactorily with such matters in a hypothetical way, and undesirable to do so in any event.

46 My view, with all respect to the ERD Court, is that the Minister may have powers sufficiently wide to enable him to impose conditions that would achieve controls that make it appropriate for the ERD Court to grant a development consent.

47 But I do not agree that having so concluded, it would then be appropriate for the ERD Court to dismiss the appeal against the decision by the DAC and leave it to the Minister of Fisheries to act as he saw fit thereafter.

48 In assessing the proposed development against the DP, the ERD Court was required to consider whether the proposed development was ecologically sustainable. It was entitled to have regard to powers available to other authorities under legislation, and it was appropriate for it to do so. But the existence of those powers does not mean that the ERD Court, or any other relevant authority acting under s 35 of the Act, either can or should take the view that the question of ecological sustainability is no longer its concern. It cannot be said that the question of ecological sustainability was not a matter properly the concern of a planning authority under the DP, and is properly the exclusive concern of another statutory authority. The most that can be said is that ecological sustainability is properly the concern of each of them. Nor can it be said that the matters that concerned the ERD Court were matters more appropriately left, being matters of management detail, to another statutory authority with powers that could be exercised in relation to ecological sustainability. In my view, the terms of the DP are such that the ERD Court, as a planning authority, was required to consider whether the proposed development would be ecologically sustainable. It was entitled to have regard to the statutory powers available to the Minister, but neither could nor should simply proceed on the assumption that the Minister would exercise those powers in a manner that would produce the desired outcome. To do so would be to abdicate its own responsibility.

49 This Court has often criticised the use of conditions to render acceptable proposed development that would not otherwise warrant the grant of a planning consent. Those criticisms do not apply to what I consider to be the proper function of the ERD Court in this case. The DP itself requires the ERD Court to consider how the proposed development will be managed, and the imposition of conditions appears to be the only way of ensuring an appropriate management regime.

50 A planning authority must also take care not to intrude inappropriately into an area of activity properly the subject of control by a statutory authority. As Jacobs J said in Beer v South Australian Planning Commission (1988) 142 LSJS 20 at 26:

"It may be acknowledged that the concepts of 'use' and 'management of the use' may often overlap but it is important that planning authorities should be wary about intruding into areas of management, particularly when to do so might bring them into conflict with other authorities."

He went on to give the illustration of a planning authority attempting to determine matters, such as trading hours, properly the province of a body such as the Licensing Court. However, a later Full Court expressed some caution about the line draw by Jacobs J between planning considerations and matters that fell to be regulated by other statutory bodies. As Cox J said in Farrow v South Australian Planning Commission (1988) 145 LSJS 284 at 291:

"The use to which a proposed development is to be put is an important planning consideration, no less than the mere bricks and mortar, and this does not cease to be so, where the use comes under the supervision of other authorities as well."

The other members of the Court agreed with Cox J.

51 I also respectfully agree with what Cox J said, but at the same time acknowledge that there are situations in which what Jacobs J said will provide a sound guide to the approach to be taken. At a certain level of detail it may be right to conclude that matters of management are appropriately left to other authorities with relevant statutory powers.

52 But in this case, that is to some extent, by the bye. Objective 35 and Principle 12 make it clear that the issue of ecological sustainability, and the impact of management on that, is a central issue for the ERD Court and for any relevant authority assessing a proposal against the DP. It is at most a case in which the planning authority and Minister of Fisheries have responsibilities and powers that overlap. In requiring to be satisfied that the proposed development will be ecologically sustainable, the ERD Court is in no sense usurping the functions of the Minister of Fisheries. As it happens, the only source of power to impose suitable conditions rests with the Minister of Fisheries, but it does not follow that the ERD Court ceases to have a responsibility in relation to ESD. Far from it. To leave it to the Minister of Fisheries to deal with that would be to abdicate responsibility to the Minister.

53 It is for those reasons that I do not accept the submission that simply because the Minister may have sufficient powers to ensure that the fish farm will be managed in an ecologically sustainable fashion, the appeal should be allowed.

54 On the other hand, I do not agree that the decision of the ERD Court should be upheld on the basis that although the Minister might have sufficient powers, he might decide to grant a 10 year lease or licence and deprive himself of the opportunity to impose conditions that would ensure ecological sustainability. It is not appropriate to assume that the Minister would act in this manner, at least unless there is evidence indicating that he might well do so.

56 In my opinion the Minister of Fisheries may have sufficiently wide powers under s 53 of the Fisheries Act to impose terms or conditions on the grant of a lease that will ensure that the proposed development will be ecologically sustainable. That is not a sufficient basis for the grant of a planning consent. It is not practicable or appropriate for the ERD Court to attempt to predict how the Minister will exercise his powers under s 53. It is not convenient for the ERD Court to formulate a series of detailed conditions and then to grant a conditional approval subject to the Minister imposing those conditions: cf Lane v Duxsel Pty Ltd (1988) 143 LSJS 454 at 461-462. In some cases that would be an appropriate course to follow, but in the present case it is not.

57 Had the ERD Court reached the conclusions that I have reached, two courses would have been open to it. The first is to allow the appeal, set aside the consent granted by the DAC, and allow the Association to make a fresh application after it has obtained a lease or licence from the Minister, or a firm indication of the terms on which a lease or licence will be granted. The ERD Court could then decide whether, in light of those terms and conditions, it is appropriate to grant a planning consent. The other course open to the ERD Court is to adjourn the hearing of the appeal to enable the Association to approach the Minister with the same end in view. The hearing of the appeal could be resumed after the Minister had made a decision on the terms of the lease or licence.

58 It would not have been appropriate for the ERD Court to dismiss the appeal, leaving the consent granted by the DAC in force. In light of the Court's conclusions, that decision was erroneous.

59 The latter course seems to me to be the more practical one to follow, and not to involve any unfairness to the Council. However, I realise that the way in which the appeal to the ERD Court has been conducted so far may make it inappropriate to do that.

60 For that reason, I would allow the appeal, set aside the decision of the ERD Court, and order 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. Either way, in my view the grant of a planning consent can be determined properly only when it is known what conditions the Minister will impose. No doubt the ERD Court will also want to know something about the Minister's policy for the future. In the light of all that it will then have to make its decision. It will not be obliged to accept such conditions as the Minister may find acceptable. The ERD Court must consider for itself whether the proposed development will be ecologically sustainable. But this course of action will ensure that the Association does not fail simply because of uncertainties about the scope of the Minister's power, while at the same time allowing the ERD Court to discharge its responsibility under the DP.

61 DUGGAN J. I agree that this appeal should be allowed for the reasons given by the Chief Justice.

62 I also agree with the orders which the Chief Justice has proposed.

63 LANDER J. I agree with the reasons of the Chief Justice and the orders he has proposed.