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  4. Yeeha Tours and Holidays Pty Ltd v Department of National Parks, Sport and Racing - [2018] QCAT 345

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Yeeha Tours and Holidays Pty Ltd v Department of National Parks, Sport and Racing[2018] QCAT 345

Yeeha Tours and Holidays Pty Ltd v Department of National Parks, Sport and Racing[2018] QCAT 345

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Yeeha Tours and Holidays Pty Ltd v Department of National Parks, Sport and Racing [2018] QCAT 345

PARTIES:

YEEHA TOURS AND HOLIDAYS PTY LTD

(applicant)

v

DEPARTMENT OF NATIONAL PARKS, SPORT AND RACING

(respondent)

APPLICATION NO/S:

GAR062-16

MATTER TYPE:

General administrative review matters

DELIVERED ON:

2 October 2018

HEARING DATE:

25 May 2017; 26 May 2017; 1 September 2017

And on the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

  1. Yeeha Tours and Holidays Pty Ltd must file in the Tribunal two (2) copies and serve on the Department of National Parks, Sport and Racing one (1) copy of an amended Operations Manual, by: 4:00pm on 31 October 2018.
  2. The Department of National Parks, Sport and Racing is invited to reconsider its decision pursuant to s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) by 4:00pm on 30 November 2018.
  3. Unless the application for review is withdrawn by Yeeha Tours and Holidays Pty Ltd:
    1. (a)
      Yeeha Tours and Holidays Pty Ltd and the Department of National Parks, Sport and Racing must file in the Tribunal two (2) copies and serve on each other one (1) copy of draft commercial activity permit and conditions for the Tribunal’s consideration, together with any supporting submissions about the form of the Tribunal’s final orders on the review application, by: 4:00pm on 21 December 2018;
    2. (b)
      The Department of National Parks, Sport and Racing must file in the Tribunal two (2) copies and serve on Yeeha Tours and Holidays Pty Ltd one (1) copy of a statement of a properly authorised delegate or other suitably qualified person as to the adequacy of the amended Operations Manual in addressing the shortcomings identified in relation to the management of interactions with wildlife (including bird-strike) and beach landings, by 4.00pm on 21 December 2018;
  1. Unless otherwise ordered, final orders on the review application will be made on the papers without further oral hearing, not before 4:00pm on 21 December 2018.
  2. Both parties have liberty to apply on the giving of seven (7) days’ notice to the other party.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where decision made refusing a permit – where external review of decision sought -  whether permit should be granted and original decision set aside

ENVIRONMENT AND PLANNING – PARKS AND RESERVES – REGULATION OF ACTIVITIES WITHIN PARKS AND RESERVES – where permit sought to operate scenic flights within declared recreation area – where aircraft activities already occur – whether permit should be granted – whether proposed operation satisfactorily manages environmental and safety risks

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 23

Recreation Areas Management Act 2006 (Qld), s 4, s 7, s 18, s 19, s 20, s 21, s 22, s 23, s 49, s 50, s 52, s 53, s 111, s 235, s 237, Schedule Dictionary

Recreation Areas Management Regulation 2017 (Qld), s 4, Schedule 2

Alliance to Save Hinchinbrook Inc v Cook [2007] 1 Qd R 102

Drake & Minister for Immigration and Multicultural Affairs (1979) 2 ALD 634

R v Murphy (1990) 95 ALR 493

Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Agriculture, Fisheries and Forestry [2014] QCATA 161

APPEARANCES & REPRESENTATION:

 

Applicant:

M Black of Counsel, instructed by Earl Dixon Butler Lawyers

Respondent:

A Ireland, In-House Legal Officer

REASONS FOR DECISION

  1. [2]
    Fraser Island is a world heritage listed area some 200km north of Brisbane. The Fraser Island recreation area is a declared recreation area under the Recreation Areas Management Act 2006 (Qld) (RAM Act).
  2. [3]
    Yeeha Tours and Holidays Pty Ltd (Yeeha Tours) applied to the Department of National Parks, Sport and Racing (National Parks) for a commercial activity permit under the RAM Act. If granted, Yeeha Tours proposes to operate a scenic flight operation with access to beach landing areas within the Fraser Island recreation area.
  3. [4]
    Following an unsuccessful internal review of the decision to refuse its application, Yeeha Tours sought review by the Tribunal. Yeeha Tours submits that the decision to refuse the permit should be set aside and a commercial activity permit (CAP or permit) be granted to it. Yeeha Tours submits that it has satisfied the mandatory preconditions for the grant of a permit, as well as providing evidence to demonstrate that scenic flights can be safely conducted by Yeeha Tours with the imposition of conditions on the permit. It further submits that there are likely to be positive impacts from the grant of the CAP and that potential impacts on the cultural and natural resources of the area can be appropriately managed by the imposition of conditions.
  4. [5]
    National Parks submits that its decision to refuse the application for a CAP to Yeeha Tours should be confirmed. It submits that this is consistent with the RAM Act and relevant departmental policy.

Arrangements with the existing scenic flights operator

  1. [6]
    Regulation of aircraft activities in northern Fraser Island areas began when it was declared a national park in 1971.[1]
  2. [7]
    The only existing scenic flights operator, Air Fraser Island (AFI), is referred to as a legacy operator by National Parks. AFI has been operating its business since about 1978, well prior to the development of current legislation and policy.
  3. [8]
    The southern region of Fraser Island was declared a national park under the Nature Conservation Act 1992 (Qld) in 1992. AFI was allowed to continue its existing activities under a permit. The same convention was applied when Fraser Island was declared a recreation area under the Recreation Areas Management Act 1988 (Qld).[2]
  4. [9]
    At the time of the hearing, AFI was operating pursuant to a commercial activity agreement[3] (CAA) with National Parks which authorised it to conduct as follows (emphasis original):[4]

Item 3 Relevant Acts and Approved Activities: (clauses 3.1 and 11.1)

Relevant Acts:

Recreation Areas Management Act 2006

Relevant Area:

Fraser Island Recreation Area including Great Sandy National Park

Section:

As per landing zone and sub zones in Attachment 1 (Map 6) and as per scenic flights and passenger transfer routes in Attachments 2 & 3 (Map 13 & Map 14)

Commercial Activity:

Commercial charter / scenic flights and landings as identified utilising fixed wing aircraft suitable for landing on beach terrain.

Approved Activities:

Maximum number of flights per day limited in accordance with Attachments 1, 2 & 3.

Operation:

Air Fraser Island Pty Ltd is the sole operator of all activities permitted through this agreement. The use of sub-contractors is not permitted unless prior approval is obtained from the Area Manager Fraser Coast or Regional Director, Sunshine and Fraser Coast Region.

Accreditation Requirements (if any):

NIL

Item 4 Capacity:

Maximum capacity of up to 10 persons per flight

  1. [10]
    AFI’s approval is limited to a specified maximum number of daily flights and landings in accordance with the CAA. The beach landings limit appears to be fixed at 44 eastern beach landings per day (with beach landings of up to four flights per day in Zone 1; 16 per day in Zone 2; and 24 per day in Zone 3.[5] As above, the operator is authorised to carry up to 10 passengers per flight.[6]
  2. [11]
    The CAA was later renewed, in similar terms, (although I note that Attachments 1, 2 and 3 were not provided, it is reasonable to infer that they are the same as the Attachments to the earlier CAA) between the conclusion of the oral hearing and the making of the Tribunal’s decision, for the period 20 July 2018 to 5 June 2019.[7]
  3. [12]
    AFI is obliged to submit returns to National Parks about flights undertaken. The evidence suggests that these returns are primarily used by National Parks for the purpose of charging fees to AFI. The returns do not reveal with clarity the numbers of flights performed by AFI or passenger numbers carried by them. That said, it is uncontroversial that the available returns from AFI reveal, what was referred to in the proceedings as, significant latent capacity or unused capacity: the number of flights conducted by AFI does not approach the capacity granted for approved flights  and beach landings per day.[8] 

The application by Yeeha Tours and National Parks decisions

  1. [13]
    Since about 2013, Yeeha Tours has operated flights out of the Hervey Bay and Maryborough airports. It offers scenic flights over Hervey Bay, Maryborough and Brisbane, as well as executive and private charter flights. It currently operates a Cessna 172N Skyhawk (4 seat) and a Piper PA-34-200 Seneca (6 seat).
  2. [14]
    Mr Tim Briest is the director of Yeeha Tours, and an associated company, Byron Bay Air Services Pty Ltd. He is a licenced private and commercial pilot.[9] Yeeha Tours also employs another pilot, Mr Langley.[10]
  3. [15]
    At a pre-lodgement meeting on 11 November 2015, Mr Briest and Mr Langley met with officers from National Parks who suggested that no new commercial activity was being permitted whilst a policy known as QuEST[11] was being implemented.[12]
  4. [16]
    Yeeha Tours made application it appears on the same day for a CAP as follows:[13]
    1. (a)
      Seeking to operate year round scenic flights over the Fraser Island recreation area for a three year period from 1 December 2015;
    2. (b)
      Proposing six visits per day, each for three paying tourists and one staff member;
    3. (c)
      Identifying a need for a marquee for ground operation and administration requirements;
    4. (d)
      Proposing that the scenic flight operations would be consistent with existing operators permits;
    5. (e)
      Proposing that if National Parks decided against a ‘full’ grant of the application, that a staged process, commencing with short-term permits, be considered.
  5. [17]
    National Parks, in considering Yeeha Tours’ application, produced a document entitled ‘Assessment Report – Tourism and Recreation Authority Applications’ (the assessment report).[14] The assessment report, includes a notation that if granted, an authority would be dependent on National Parks/CASA undertaking a risk assessment. Under the topic about ‘Likely Cumulative Effect of the Proposed Use and other uses on the area’, the report indicated:[15]

It is considered that the granting of a commercial activity permit for this activity would set a current precedent to allow more activities of this type on national parks/recreation areas. This activity has been refused on a number of occasions previously. If considered allowable there is a requirement for an EOI to be undertaken as other commercial operators are seeking access to any potential latent capacity at sites for this high demand activity. [16]

  1. [18]
    The assessment report refers to legislative requirements and policy (in particular, the Great Sandy Region Management Plan, the Fraser Island Sustainable Visitor Capacity Study and Queensland Eco and Sustainable Tourism (QuEST)), as well as the draft Great Sandy Region aircraft management strategy.[17] The assessment report recommended that the application be refused.[18] The application was then refused.
  2. [19]
    On internal review, the review decision included the following statement:[19]

The QuEST policy has been well documented and consistently implemented on Fraser Island. The department has taken a consistent position that applications for any high demand activity will only be considered as part of an EOI process. As the proposed activity is not a “prescribed commercial activity” it is possible to lodge a commercial activity permit application. However consistent with advice provided to the applicant at a meeting held on 11 November 2015 by regional QPWS officers, while QuEST is being implemented, no new commercial capacity is being released for QuEST related/high demand activities.

  1. [20]
    In the review, Yeeha Tours has now clarified that it seeks authorisation of one or more of the following commercial activities on any reasonable conditions:
    1. (a)
      Transit flights between the mainland and 75 Mile Beach using the transit routes identified in Map 14;
    2. (b)
      Scenic flights departing from (and returning to) 75 Mile Beach using scenic routes identified in Map 13 and landing sites identified in Map 6;
    3. (c)
      Scenic flights departing from (and returning to) the mainland using the scenic routes identified in Map 13 and Map 14.[20]

The legislative framework for the review

QCAT Act provisions

  1. [21]
    The Queensland Civil & Administrative Tribunals Act 2009 (Qld) (QCAT Act) provides generally for the manner in which tribunal’s review jurisdiction operates.[21]
  2. [22]
    In review proceedings, the tribunal effectively stands in the shoes of the original decision-maker and makes its own decision based on the evidence before it and the applicable law.[22] The purpose of the review is to produce the correct and preferable decision.[23]
  3. [23]
    The decision-maker,[24] here National Parks, must use its best endeavours to help the tribunal make its decision on the review. [25] In part, the obligation to assist the tribunal entails the decision-maker providing copies of all of the documents and other things under its control that may be relevant to the tribunal’s review.[26]

RAM Act provisions

  1. [24]
    The purpose of the RAM Act is set out in s 4(1):
  1. (1)
    The main purpose of this Act is—
  1. (a)
    the establishment, maintenance and use of recreation areas; and
  1. (b)
    to provide, coordinate, integrate and improve recreational planning, recreational facilities and recreational management for recreation areas, having regard to—
  1. (i)
    the conservation, cultural, educational, production and recreational values of the areas; and
  1. (ii)
    the interests of area land-holders.
  1. [25]
    Section 4(2) sets out the way in which the purpose is mainly to be achieved:

(2) The purpose is to be achieved mainly by—

  1. (a)
    providing for the declaration, planning and management of recreation areas, as far as practicable, in consultation with, and having regard to the views and interests of, area land-holders and other interested groups and persons, including relevant Aboriginal and Torres Strait Islander entities for the area; and
  1. (b)
    recognising the rights and obligations of area land-holders; and
  1. (c)
    ensuring the management of, and activities permitted in, a recreation area are not incompatible with the tenure of all land in the recreation area; and
  1. (d)
    providing for access to recreation areas, including the use of recreation areas and facilities and services for recreation; and
  1. (e)
    providing for the payment of fees and charges for the use of recreation areas and facilities and services for recreation; and
  1. (f)
    publishing information about recreation areas and facilities and services for recreation; and
  1. (g)
    enforcing compliance with this Act.
  1. [26]
    Section 7 provides that a regulation may declare an area to be a recreation area. The regulation must state the management intent for the recreation area. The Schedule defines ‘management intent, for a recreation area’ as including an outline of ‘the goals intended to be achieved’ in managing the area, as well as ‘the policies to be implemented to achieve the goals.’ After establishing a recreation area, the Minister must, as soon as practicable, prepare a draft management plan,[27] which must set out inter alia the recreational objects for planning developing and managing the area. An approved management plan must be finalised after taking into account submissions made by members of the public, land-holders and indigenous entities for the area.[28] It takes effect from the later of the stated commencement date or gazetting.[29]
  2. [27]
    However, the transitional provisions provide that a recreation area under the repealed Act existing immediately prior to commencement continues as a recreation area.[30] If a management plan was effective immediately before the current legislation, the plan continues in force and is taken to be an approved management plan for the area,[31] subject to reading it with changes as necessary to make it consistent with or adapted to the RAM Act.[32] Under the Recreation Areas Management Regulation 2007 (Qld) (RAM Reg), the Fraser Island Recreation Area is a continuing recreation area.[33]
  3. [28]
    Section 111 of the RAM Act prohibits the conduct of certain activities within a ‘recreation area’. Relevantly, s 111(1) provides that a person must not conduct commercial activity in a recreation area unless the person is authorised to do so under a CAP or a CAA. Commercial activity is defined,[34] in broad terms, as an activity conducted for gain. A scenic flight is an activity conducted for gain within the definition of commercial activity.[35]
  4. [29]
    Section 49 provides for the making of an application for a CAP. Section 50 sets out pre-conditions for grant of an application and provides that the chief executive may grant the application, if satisfied that the applicant is a suitable person to hold the permit and there is adequate insurance cover for the activities proposed.
  5. [30]
    Section 52(1) requires that the chief executive consider the application and grant or refuse it. Section 53(1) sets out a variety of matters to which the decision-maker must have regard in deciding to grant or refuse the application as follows:
  1. (1)
    In deciding an application under section 52, the chief executive must have regard to each of the following—
  1. (a)
    the purpose of this Act;
  1. (b)
    the management intent for the recreation area, and the area’s current draft or approved management plan;
  1. (c)
    conservation of the area’s cultural and natural resources;
  1. (d)
    the amenity of the area and adjacent areas;
  1. (e)
    the size, extent and location of the proposed use in relation to other uses of the area or adjacent areas;
  1. (f)
    the likely cumulative effect of the proposed use and other uses on the area;
  1. (g)
    public health and safety;
  1. (h)
    any relevant Australian or international code, instrument, protocol or standard or any relevant intergovernmental agreement;
  1. (i)
    the requirements mentioned in section 50;
  1. (j)
    whether there are any grounds for refusing the application.
  1. [31]
    Under s 53(2) the decision-maker may also have regard to anything else it considers appropriate to achieve the purpose of the RAM Act.

CASA Guidelines and National Parks’ policy and other documentation

  1. [32]
    Before turning to consider the prescribed matters under the legislative provisions, it is useful to set out some details of documents provided to the Tribunal.
  2. [33]
    Guidelines issued by Civil Aviation Safety Authority (CASA), in particular CAAP92-1(1) Guidelines for Aeroplane Landing Areas and CAAP166-1(3) Operations in the vicinity of non-controlled aerodromes, were before the Tribunal and discussed in the evidence.
  3. [34]
    National Parks was previously entitled the Queensland Parks and Wildlife Service (QPWS). Some of its documents refer to QPWS.
  4. [35]
    The Tribunal had before it departmental policy and other documents in relation to the Fraser Island and more broadly the Great Sandy Region, namely:
    1. (a)
      The Great Sandy Region management plan 2005[36] (the Management Statement);
    2. (b)
      Fraser Island Sustainable Visitor Capacity Study 2008[37] (the SVC);
    3. (c)
      Draft Great Sandy Region Aircraft Management Strategy[38] (the draft AMS) developed by the Aircraft Working Group (AWG) between 2006 and 2009.[39]
  5. [36]
    Generic departmental policy presented included:
    1. (a)
      The Department of National Parks, Sport and Racing’s Operational policy, Visitor management, Landing aircraft and recreational craft in QPWS (Queensland Parks and Wildlife Service) managed areas[40] (the operational aircraft landing policy); and
    2. (b)
      Queensland Eco and Sustainable Tourism (QuEST).
  6. [37]
    Certain other generic policy, including Procedural Guide Visitor Management Tourism and recreation authority applications[41] and Commercial and visitor services landscape classification system for visitor management,[42] was before the Tribunal.
  7. [38]
    The Management Statement was developed in 1994.[43] It was subsequently revised in 2005.[44] On its face, it is effective until 2010,[45] although a note on the inside coversheet records that as of September 2011, it was being reviewed.[46] An affidavit of Dr Elizabeth Young, whose substantive position is Director of Assessments and Approvals Unit, National Parks refers to it as the Management Statement for 1994 to 2015,[47] but if it was again revised for the period 2010 to 2015, a copy of that further revised version was not provided to the Tribunal.[48] 
  8. [39]
    It is uncontroversial that the Management Statement was developed for the purposes of the Nature Conservation Act 1992 (NC Act). It is not a management plan for the purposes of the RAM Act. It is a document of some 220 pages. In essence, it expresses commitment to protecting the outstanding values of the remaining areas of the Great Sandy Region. The values referred to include, ‘remote beaches, forests, lakes and dunes; those natural assets that define the unique character of the Region, and that support, remote recreational experiences.’[49]
  9. [40]
    It includes a section entitled ‘Strategy 3 Recreation tourism and visitor use.’[50] Paragraph 3.20,[51] sets out as follows:

Background information

The use of aircraft to view remote sections of the Region can be in conflict with on-ground visitors in those areas. Visitors on the ground in remote areas generally are in search of peace and quiet and enjoyment of the sights and sounds of nature. Landings, departures and overflying of powered aircraft may constitute a significant intrusion for some visitors and disturb and endanger wildlife.

Desired outcomes

By or before 2010, to have outcomes for private and commercial recreational aircraft activities available in the Region consistent with the protection of environmental values and the quality of visitors’ experiences.

Proposed guidelines and actions

  1. Plan for the management of overflights by fixed-wing aircraft and helicopters according to restrictions that appropriately reflect the landscape and experience zoning of the property. This is to achieve protection of wilderness experiences and impacts to fauna in susceptible habitats such as sea and shorebird roosting sites.
  2. Except in emergencies, recreational aircraft will not be permitted to land on beaches immediately adjacent to remote or semi-remote non-motorised areas.

Existing situation

Fixed-wing aircraft and helicopters are used to reach Fraser Island, particularly resort areas. Aircraft are also used for emergency evacuations and rescues. The landing of aircraft on beaches is only permitted at designated landing sites, subject to a commercial activity permit and in accordance with operational guidelines developed between QPWS, Civil Aviation Safety Authority and the industry. The guidelines reflect thbe shared use of beaches. Aircraft are not permitted to land on beaches adjacent to remote or semi-remote non-motorised areas on Teewah and Rainow Beach except in an emergency.

Recreational aircraft activities include scenic flights and flying ultralight aircraft for pleasure. Amphibious aircraft and those fitted with floats are not permitted to land on lakes including Lake Cootharaba or on the Noosa River but may use Great Sandy Strait.

Commercial aircraft activities are carried out under an agreement and written approval. Activities are to be consistent with Civil Aviation Safety Authority guidelines. Fixed-wing aircraft are restricted to minimum approach distances to and altitudes over whales from 1 August to 30 November each year. Helicopters may not be used for whale watching.

Civil aviation legislation does not regulate aircraft activity over remote zones, however ‘Fly neighbourly’ agreements can be negotiated between the Civil Aviation Safety Authority, the landowner and operators.

  1. [41]
    The SVC was developed with input from a working group over 2006-2007.[52]  The working group included Michael West and Brett Waring who were witnesses in the proceeding. Marie Wilkinson, an elder of the Butchulla People, was a member of the working group. Essentially, the purpose was to determine, as far as possible, and within the context of the Management Statement overall and on a site-by-site basis the sustainable capacity or use at each of the identified nodes; (the more popular sites where people congregate).[53] The eastern beach nodes or sites are high capacity sites, but most were not considered to have reached maximum sustainable capacity.[54] The SVC discusses beach landings.[55]
  2. [42]
    The draft AMS, developed by the AWG following the development of the SVC, refers to ‘the cardinal management principle’ for the Greater Sandy Region as drawn from the Nature Conservation Act 1992 (Qld), that is, management to provide as far as possible the permanent preservation of the area’s natural condition and protection of the area’s cultural resources and values.[56] Management intent is specified to include management of aircraft to minimise adverse impacts on visitor experiences, consistent with, inter alia, nature-based recreation, as well as identifying and providing sustainable recreation and tourism opportunities within the region.[57]
  3. [43]
    The draft AMS has not been endorsed as departmental policy. National Parks submits that it should not be taken into account by the Tribunal in the review. That said, it is apparent that National Parks has relied upon it, at least in drafting the commercial activity agreements with AFI because it includes Maps 6, 13 and 14 (as Attachments 1, 2 and 3) from the draft AMS in identifying the activities that may be undertaken by AFI.[58] The draft AMS envisaged monitoring for 12 months by National Parks to ensure world heritage values were respected and review by the AWG 12 months after implementation.[59] It also recommended that if the current operator conducting beach landings does not wish to use full capacity, surplus capacity should be made available to a maximum of one other operator through an EOI process, subject to written advice from CASA ‘that a second operator could safely operate in these areas.’[60]
  4. [44]
    The operational aircraft landing policy applies generally to managed areas falling under the RAM Act, as well as under the Nature Conservation Act 1992 (Qld) and the Forestry Act 1959 (Qld). The operational aircraft landing policy provides that permits or approvals to land an aircraft at an aircraft landing area may be granted only where the landing area meets the Civil Aviation Regulations 1988 (Cth) and accords with CASA Guidelines relevantly for aircraft landing areas (CAAP92-1(1)) and the assessment criteria specified in the policy.[61]
  5. [45]
    The policy refers to the need for special management arrangements to properly address issues. (Perhaps curiously given that National Parks asserts that the draft AMS has not been accepted into departmental policy and in the absence of any other documentation that might be described as ‘special management arrangements’), it includes as a specific example, special management arrangements that National Parks has implemented for aircraft landings on the eastern beaches of Fraser Island which is also used by pedestrians and vehicles.[62] It is reasonable to infer that this is a reference to the draft AMS because there is no other document that contains what might be described as special management arrangements: if there was, National Parks was obliged to provide it. It refers to its officers consulting with CASA in the development of the aircraft landing area management plans.[63]
  6. [46]
    QuEST was relied upon in part by National Parks to refuse Yeeha Tours application for a permit on the basis that no new permit holders’ applications were being approved if the policy applied. Its aim in part was to transition existing permit holders to commercial activity agreements over a period of time. Once the transition was effected it was anticipated that any remaining capacity would be given to permit applicants on the basis of certain equity principals through a formal EOI process, (rather than on individual application from time to time). However, as discussed later, evidence at hearing it is clear that QuEST does not refer to and was not envisaged by National Parks to apply to aircraft operators.

Consideration of the section 53 factors

How should the policy and the draft AMS be regarded in considering the relevant factors under the RAM Act?

  1. [47]
    Relying upon the general principle elucidated in Drake & Minister for Immigration and Multicultural Affairs,[64] and previously applied in the Appeal Tribunal,[65] National Parks submits that the Tribunal should apply lawful policy unless there are cogent reasons to depart from it. I accept that lawful and relevant government policy should be applied in review proceedings where relevant, unless it is not in the interests of justice to do so in the circumstances.
  2. [48]
    In relation to the policy documentation, I make the following specific comments.
  3. [49]
    The Management Statement is not a management plan for the purposes of the RAM Act, but I accept is still lawful relevant policy. The operational Aircraft Landing policy is also lawful policy. However, I have concluded for the reasons later discussed that it has not been applied, or at least some parts of it have not, by National Parks in granting AFI’s CAA. I have had regard to the Management Statement and operational aircraft landing policy in the manner later discussed.
  4. [50]
    In giving her oral evidence, Dr Elizabeth Young told the Tribunal that the QuEST policy was not applicable to aircraft, but rather to activities relating to commercial four wheel drive and tag-along tours activities.[66] In submissions, both parties agree that the QuEST policy is not relevant. Accordingly, I have not taken it into account as it is not relevant.
  5. [51]
    The draft AMS is not endorsed policy. National Parks submits it should not be taken into account or applied by the Tribunal, and that the findings of the AWG should be given little, if any, weight. It contends that the reliability of its conclusions should be regarded as in doubt because it is now some nine years old and its findings are not supported by objective data. 
  6. [52]
    Mr Waring was involved in the development of the draft AMS in his then role within National Parks. He holds a Bachelor of Science in Forestry. He explained that in the modern context, this qualifies him to manage forest ecology on state forests for multiple benefits including conservation.[67] He obtained post-graduate qualifications in data analysis and computing.[68] He has worked for National Parks since 2002 and for its predecessors or related departments since 1987.[69] He says he is considered ‘the expert’ on setting base management, landscape classification and capacity management.[70] He said he was anecdotally aware of instances when the draft AMS had been applied in decision-making, although it remained in draft.[71] In oral evidence, Mr Waring stated that, (although he no longer works in the same area), he understood that the draft AMS had ‘been resubmitted to the executive leadership team’ in about 2009, who considered whether to formally endorse it, but ‘decided to defer any decision on it until the more general management plan for Fraser Island was reconsidered.’[72] In context, he referred to review of the Management Statement.
  7. [53]
    Dr Young’s evidence confirmed that the draft AMS is considered by departmental staff. She said she was familiar with ‘significant components’ of the draft AMS, although ‘In terms of the appendixes, (she has) …only reviewed them in brief, because of their not being specifically relevant to any actions’ she had taken.[73] She appeared to concede that at least Map 6 contained in the attachments to and forming part of AFI’s CAA was drawn from the draft AMS.[74] Comparing the relevant pages containing Maps 6, 13 and 14[75] in the draft AMS against Attachments 1, 2 and 3[76] of AFIs CAA, they appear respectively to be identical. In each case, Attachments 1, 2 and 3 are Maps 6, 13 and 14 with an attachment number hand-written at the top.
  8. [54]
    Ms Sybil Smith, at the time the acting Executive Director, Permissions Management for National Parks, with delegated authority to approve and amend CAAs and CAPs, gave evidence to the effect that the AMS is not endorsed policy and that she would not apply it in making a decision.[77] She added that she could not speak for ‘the agency decision-makers in this case or the authors of the assessment report.’[78]
  9. [55]
    Yeeha Tours submits that whether or not the draft AMS is approved as policy does not affect its reliability and usefulness as evidence in considering its application.
  10. [56]
    It is apparent that considerable resources went into the development draft AMS. The AWG was a representative body with membership from the department, stakeholders and land-holders. It is clear from the oral evidence of departmental staff that the draft AMS has not been accepted into official policy. However, the evidence from Mr Waring which was not contradicted, suggests its contents have not been rejected either, rather, consideration of endorsement was delayed pending review of the Management Statement.
  11. [57]
    National Parks’ criticisms of its reliability based on the effluxion of time since its development are not persuasive. The Management Statement was last updated/ revised in 2005 and the 2008 SVC were both developed prior to the finalisation of the draft AMS. Notwithstanding that the draft AMS has not been formally accepted by National Parks, it is reasonable to infer that considerable reliance has been placed upon it by National Parks in drafting AFI’s CAAs.  Further, it appears to be acknowledged in the QPWS operational aircraft landing policy as constituting special management arrangements.
  12. [58]
    The basis upon which the draft AMS was developed was not inconsistent with the RAM Act. It was applied in part, as recently as 20 July 2018 in granting a further CAA to AFI by reference to flight routes, landing zones and capacities by reference to the relevant Maps in the draft AMS.
  13. [59]
    Although it is not endorsed as official National Parks policy, I accept that its contents, recommendations and the attached maps provide useful evidence, as Yeeha Tours submits. On that basis, I am satisfied that it is appropriate to have regard to it and take into account in these proceedings, and I do so in the manner later discussed.

Section 53(1)(a): the purpose of the RAM Act

  1. [60]
    The objects of the RAM Act as set out earlier, include, in s 4(1), the establishment, maintenance and use of recreation areas. Section 4(b) sets out the purpose of providing, coordinating and improving recreational facilities and management of recreation areas having regard to, amongst others, conservation, cultural and recreational values. Section 4(2) provides that the purpose is to be achieved mainly by, inter alia, providing for management of recreation areas as far as possible in consultation with the area land-owners, traditional owners and other interested persons; ensuring activities permitted are not incompatible with tenure of the land; and providing for access to and use of recreation areas.
  2. [61]
    National Parks identifies that the multiple land tenures affected by the application include national park and marine park.[79]
  3. [62]
    It follows that the purposes of the RAM Act include managing the recreational use of declared recreation areas, such as the Fraser Island recreation area and providing access to the use of services for recreation. Yeeha Tours submits that the related recreational purpose is not subservient to the other conservation, cultural, educational, and production values. Whereas this may be so, it is plainly not to be viewed in isolation from those other purposes. Recreational planning and facilities must be provided, planned and managed having regard to all of the specified purposes.
  4. [63]
    National Parks submits that there has been no consultation with the Butchulla people by Yeeha Tours. Further, it says it has not been demonstrated that the activities proposed are consistent with World Heritage Values and the natural and cultural values of the Great Sandy National Park. It submits that the activities must be evaluated in the context of the existing users, and the impact an additional user would have upon those matters. (These matters are later discussed in relation to other criteria).
  5. [64]
    However, the application, in seeking to provide a limited additional recreation facility for visitors to the recreation area is not inconsistent with the purpose of the RAM Act.

Section 53(1)(b): the management intent for the recreation area, and the area’s current draft or approved management plan

  1. [65]
    Yeeha Tours submits, and National Parks acknowledges, that there is no stated management intent or management plan for the Fraser Island recreation area in the RAM Reg because the area continued in existence when the RAM Act commenced, rather than being declared under it. As discussed earlier, the Management Statement is not a statutory management plan under the RAM Act:[80] it is a Management Statement pursuant to the NC Act.
  2. [66]
    Therefore, it follows that there is no current draft or approved management plan under the RAM Act for consideration.

Section 53(1)(c): conservation of the area’s cultural and natural resources

  1. [67]
    In late 2014, National Parks signed a Memorandum of Understanding with representatives of the Butchulla People and corporate entities of the Butchulla People (the MOU).[81] It appears this was done in contemplation of a determination of native title made by the Federal Court in October 2014.[82] The MOU recognises the Butchulla People as the traditional owners of Fraser Island known by the Butchulla People as K’Gari.[83] It sets out principles and a vision[84] for working cooperatively together and a general understanding about certain matters, including National Parks intention to develop a procedure for consultation in relation to ‘the issue of permits that may impact on the cultural heritage of Butchulla People.’[85] The MOU is expressly stated to be non-binding and is not to be construed as fettering the responsible Minister’s administration of specified Acts, including the RAM Act.[86]
  2. [68]
    National Parks submits that it has concerns about the conservation of the cultural and natural resources of Fraser Island should Yeeha Tours be granted a permit for the proposed activities. It says that Yeeha Tours has not consulted with the Butchulla People or otherwise identified whether there are important cultural resources at the areas at which it proposes to land.
  3. [69]
    Additionally, National Parks raises concerns about the impacts on natural resources and that Yeeha Tours has not addressed the concerns it set out in its assessment report. It says that Yeeha Tours inappropriately seeks to ‘shifts the onus of determining impacts’ and how they could be managed to National Parks.[87] 
  4. [70]
    Referring to the assessment report, it refers to comments therein as follows (footnotes omitted):

The Respondent’s assessment report found, among other things that:

a. “Little Terns have been found along the east coast of Fraser Island and typically inhabit the south eastern parts” and that “The little tern usually feeds in small groups, although it often roosts in large flocks on beaches or sand spits with other terns. The little tern breeds from May to July in the Gulf of Carpentaria, and mostly from September to January along the east coast of Australia. This species lays their eggs in a shallow depression scraped into the sand”;

b. “Fraser Island provides temporary refuge for 20 species of migratory birds including short tailed shearwaters and eastern curlews. Whilst aircraft overflying may not impact upon these species, landings near known habitat and roosting sites will have measurable impact”;

c. “Beach stone-curlews breed from September to February. Their nests can often be located on sandbanks, sandpits, or islands in estuaries, coral ridges, among mangroves or in the sand surrounded by short grass and scattered casuarinas; and

d. “The proposed aircraft landing areas are adjacent to the frontal foredunes. This area is the preferred roosting and nesting site for many shorebird species including Masked Lapwing, Red-capped Plover, Oystercatcher spp, Dotterel spp and Tern spp. These species are also known to be impacted upon by beach traffic. The proposed aircraft landing areas are known to be used by dingoes for hunting, whelping and dominance testing.”

  1. [71]
    National Parks submits that the Convention on the Conservation of Migratory Species of Wild Animals (the Convention) must be considered. The Convention requires paying special attention whenever possible and appropriate to migratory species with an unfavourable conservation status and taking steps to conserve the species and their habitat. Listed species include the Little Tern and Eastern Curlew. Further, it refers to potential impacts on the Fraser Island Dingo population.[88]
  2. [72]
    National Parks submits that Yeeha Tours cannot rely upon pre-existing activities for concluding that conserving the natural and cultural resources does not weigh against granting the CAP. It also submits that the evidence of Mr Tonkin, an aviation expert who prepared a report at the request of National Parks, to the effect that Yeeha Tours has not adequately addressed how it would manage the risk of interaction with wildlife, including by way of bird strike, is significant. Noting that Yeeha Tours applies to utilise up to 7 landing areas on the frontal fore-dunes where protected species may occur, it submits that it would be difficult if not impossible to appropriately condition the CAP if granted. Further, it submits that the cumulative effects of the impact of the proposed activities, together with AFI’s activities, cannot be determined.
  3. [73]
    In response, Yeeha Tours submits that its application must be seen in context of the pre-existing activities. It is not seeking to introduce flights or beach landings into  new or unused locations of the recreation area. AFI has been permitted by CAA to conduct beach landings and scenic flights over Fraser Island on the basis of adopting the flight paths and landing zones in the draft AMS and the flight capacities proposed by it. It says that the only reasonable inference that can be drawn from the granting of the CAA to AFI is that National Parks was satisfied that the activities AFI is permitted to conduct were desirable and consistent with the RAM Act. Further, it submits that if National Parks had evidence to demonstrate unmanageable impacts of AFI’s existing operations on the beaches, the wildlife or other users of Fraser Island, in its role of assisting the Tribunal, it would have presented it, indeed was obliged to do so in its role of assisting the Tribunal to reach the correct and preferable decision.
  4. [74]
    Also, it relies upon the evidence of Michael West and Brett Waring, both of whom, it submits, have extensive experience in assessing the impact of visitors to Fraser Island generally, as well for scenic flights. Both of them were involved in the development of the SVC and the draft AMS. National Parks contends in response that neither of them have specific expertise in natural resources nor give evidence as to impacts of the proposed activities.
  5. [75]
    Mr West described himself as a lone voice for the environment for many years in the SVC development.[89] He was a member of the AWG in developing the draft AMS. He recalled that at the time, there were 2 companies operating flights on Fraser Island,[90] mostly landing on the eastern beach, 75 Mile Beach.[91] He was aware of planes landing near Eurong and Happy Valley, although the area suitable for landing changed, he said, with tide and wind.[92]
  6. [76]
    He was a member of AWG sub-group formed to consider the impact of different flight heights and aircraft noise.  He gave evidence that the sub-group was concerned about noise and sight offence from aircraft that might disrupt the enjoyment and beauty of the Fraser Island experience of visitors on the ground.[93] The sub-group assessed noise on the ground and was ‘surprised by how quiet it was.’[94] He recalled that Map 13 of the draft AMS identified aircraft routes that did not detract from the on-ground experience.[95] Those routes proposed flight paths over pre-existing roads. [96]
  7. [77]
    Mr Waring, recalled most of the findings in the SVC were unanimous.[97] He confirmed that there were at least 2 flight operators when the draft AMS was being developed.[98] He was involved in developing Table 2 in the draft AMS that set flight capacities.[99] He said that the need to meet the usage zones detailed in the Management Statement  was taken into account,[100] as well as the need to manage safety and usage frequency.[101] The intention was to fit ‘within the greater aspirations of the management plan and the delivery of the zones intended, but…also be reflective of the fact that (the Department) had allowed people to undertake the activities, and that … there was not clear evidence that it was an unsustainable, undoable, unmanageable activity.’ [102]
  8. [78]
    He explained that the flight paths in Map 13 relate to the capacities in Table 2.[103] He confirmed that the flight paths generally followed the roads[104] except for the Lake MacKenzie flight path, which is a figure 8 circuit, back far enough from the lake as to keep aircraft unobtrusive.[105]
  9. [79]
    Mr Waring spoke about the beach landing areas in Map 6. He said that the flight capacity figures were established as ‘a practical, safe, vaguely commercial compromise.’[106] The capacities proposed contemplated the landing sites might be shared by more than one operator.[107] The maximum nominated capacity was intended to be ‘a reasonable starting point’[108] to be adjusted according to experience.[109] He described the group as having been ‘led a fair bit by CASA,’[110] which was represented on the AWG by a Mr Fooks.[111]
  10. [80]
    Yeeha Tours contends that the evidence demonstrates that Yeeha Tours’ proposed activities are very unlikely to have undue adverse impact on the beach, environment or cultural values. Further, it relies upon the SVC committee having a representative of the Butchulla People,[112]  which although not focused on aircraft use, refers to it and yet no concerns were raised. It says that AFI’s approval to use the flight routes up to capacity implies that National Parks was satisfied that they could be used to that capacity consistent with conservation concerns and that sufficient consultation with the Butchulla People had occurred. It submits that a consideration of the conservation of the natural and cultural values of Fraser Island do not weigh against granting the permit sought.
  11. [81]
    The evidence does not suggest that the MOU is a public document. Although it was open to Yeeha Tours to seek out representatives of the traditional owners in order to ascertain their views about his application, National Parks has an MOU with them which includes its stated intention to develop a procedure for it (not applicants for permits) to consult with the Butchulla People in relation to the issuing of permits. There is no evidence to suggest that it has developed such a procedure, or that it consulted with the traditional owners. A further CAA with AFI was recently entered into by National Parks. There is no evidence concerning any consultation that occurred with the Butchulla People about that CAA, or in relation to Yeeha Tours application for a permit. In any event, National Parks has knowledge of the relevant organisations and the elders to contact. Yeeha Tours does not.
  12. [82]
    Further, it also seems more appropriate having regard to National Parks greater overall role and involvement with Fraser Island, that it should be National Parks who consults with the traditional owners, rather than individual permit applicants. For these reasons, I observe that if there has not been adequate consultation, National Parks  appears to me to be responsible for that shortcoming.
  13. [83]
    That aside, it is uncontroversial that Fraser Island has culturally and naturally significant resources, the conservation of which must be appropriately safeguarded. In its role of assisting the Tribunal, it is reasonable to infer that all specific concerns about conservation of cultural and natural values have been raised in the proceedings by National Parks and available relevant evidence presented in relation to them.
  14. [84]
    I accept the evidence to the effect that a Butchulla elder was a committee member for the SVC. I accept that generally the recommendations and direction of the SVC were reached by consensus. The evidence is that there was only one incidence of disagreement relevant to aircraft.[113] The area of disagreement concerning aircraft was with respect to maximum group size for landings at Sandy Cape.[114] The draft AMS then built upon the base and principles set out in the SVC. Although it appears that there been no consultation with the traditional owners about Yeeha Tours CAP application, it is reasonable to view it having regard to the framework developed with the input of a representative of the Butchulla People.
  15. [85]
    Further, I note that National Parks does not suggest that the traditional owners have raised, or are raising concerns, about the current operations of AFI on the flight paths and at the landing areas specified in the draft AMS. As it is obliged to assist the Tribunal, it is reasonable to infer that there are none, and I draw that inference.
  16. [86]
    I accept the evidence of Mr West and Mr Waring that the flight paths and landing areas in the draft AMS were also developed in order to preserve the natural values and experience of those on or visiting Fraser Island. The flight paths travel along the roads, and in a figure 8 pattern back from Lake McKenzie. As part of the AWG working sub-group Mr West, an independent witness, with a conservation focus, was surprised how quiet it was, despite aircraft activity when it was done in this manner. I accept his evidence. I accept that in this manner the effect of flight activity on the experience of experience of those on the ground on Fraser Island can be minimised. Yeeha Tours if granted a CAP could be confined to those routes.
  17. [87]
    I accept that the Little Tern and Eastern Curlew are relevant listed species of migratory birds that occur on Fraser Island, together with other species of bird and wildlife as per the assessment report. I accept also that Australia has entered into the Convention.  I am satisfied that aircraft, while in the air and in conducting beach landings, have the potential to impact wildlife, particularly birds and their nesting areas, through airstrike and during landing.  In respect of AFI, again, I observe that if there have been any issues arising with respect to bird or wildlife interaction more generally, National Parks was obliged to inform the Tribunal of it. As they have not done so, I therefore infer that there have been no noteworthy incidents.
  18. [88]
    The potential for this interaction to occur from time to time if Yeeha Tours is operating the aircraft is no higher than when AFI operates.  Also, at the time of the development of the draft AMS, there were 2 aircraft operators on Fraser Island. There is now only one aircraft operator, AFI, performing commercial operations.
  19. [89]
    I accept Mr Tonkin’s evidence that Yeeha Tours’ Operations Manual does not adequately address the manner in which it would manage the risk of bird and other animal interaction. However, he does not say that it cannot be managed: clearly it can, and is, for other aircraft and by AFI on Fraser Island. But, it needs to be addressed.
  20. [90]
    Viewed in context, Yeeha Tours proposal for beach landings does not seek to disturb natural or cultural areas or values not already subjected to AFI aircraft. Of course, in the weighing of factors, if Yeeha Tours is to be granted a CAP, it must amend its Operations Manual to appropriately deal with the issue of managing risk of interaction with wildlife before its operations could commence.
  21. [91]
    Further, in this regard, Mr Tonkin also gave evidence that beach landings themselves are not currently addressed in Yeeha Tours Operations Manual. That would also be the subject of amendment, if a permit was to be granted.

Section 53(1)(d): the amenity of the area and adjacent areas

  1. [92]
    National Parks raises concerns about compromise of the visual and aural amenity of the area if the proposed activities are allowed.
  2. [93]
    Dr Briony Young’s evidence is that ‘social experiences would be severely impacted upon by the proposed activity particularly on the remote western side of Fraser Island. These impacts would result from excessive aircraft noise and visual presence.’[115] She also says:

…the proposed activity would unduly impact (due to noise) upon the amenity of the area, the presence of other users, and the remote setting of the area…In particular, an increase in aircraft noise could affect existing users, especially those on the ground in remote areas.[116]

  1. [94]
    National Parks also relies upon the assessment report in which it was stated, ‘The proposed activity alters the desired social setting of the numerous sites through both overflying and landings. These sites include the Maheno shipwreck, Lake McKenzie, Champagne Pools, Eli Creek and the western beach.’[117] This appears to have been prepared by Matt Davies, and endorsed by Jamie Seeleither, a ranger and senior ranger respectively, and later approved by Ben Klaassen, Deputy Director-General. The qualifications and experience of these National Parks staff members is not known and they did not give evidence in the hearing.
  2. [95]
    It submits in effect that this evidence should be preferred over the draft AMS and the evidence of Mr West and Mr Waring which is now almost ten years old, was not endorsed by National Parks and has not been reviewed as anticipated at the time. It argues that Mr Briest’s personal evidence about noise should be given no weight as he has no relevant expertise and an interest in the outcome. It argues that the first question is whether the impacts are acceptable, and if so, the extent to which they are.
  3. [96]
    Yeeha Tours argues that the evidence does not support any significant concern. It relies upon the contents of the draft AMS which suggests that the degree of impact depends upon how the activity is undertaken.[118] With respect to noise, it recommended that scenic flights be restricted according to time, area and number.[119] A maximum number of, it appears, 65 flights across 6 different flight circuits was recommended.[120] It was suggested that transit flights could be conducted on routes and at heights that they would not be noticeable to minimise potential impacts.[121]
  4. [97]
    In making its recommendations, the AWG undertook direct observations to assess aircraft noise at different heights.[122] Further, Yeeha Tours says that the reliability of the conclusions and recommendations should not be doubted, not least of all because National Parks has relied upon them in fixing the conditions for AFI. It also argues that Mr Briest’s evidence is consistent with the draft AMS. Further, as National Parks does not produce evidence about amenity issues arising by AFI’s operations, it is reasonable to conclude that there are none. 
  5. [98]
    I accept of course that the amenity of Fraser Island and adjacent areas must be maintained. However, I am satisfied that in the development of the SVC and/or the draft AMS, the relevant issues were considered by a broad group of stakeholders including an elder of the Butchulla People, other-landowners and CASA led by experienced and appropriately qualified National Parks staff. The policy framework remains unchanged. The draft AMS built upon the work undertaken in the SVC with a specific focus on aircraft. Its recommendations were developed with a view to minimising impacts. Yeeha Tours seeks a permit to operate well within those recommendations. I give it greater weight than the assessment report, which, although a more recent document, is the untested report and opinions of three persons who did not give direct evidence in the proceedings and whose experience and qualifications are not disclosed in the proceedings. As discussed earlier, I accept Mr West’s evidence about the minimisation of noise through use of the routes recommended in Map 6. If a CAP is to be granted to Yeeha Tours, it can be limited to operating those recommended routes and landing zones that it identifies.
  6. [99]
    Also, in the draft AMS baseline flight capacity was established. AFI is currently operating a CAA that entitles it to utilise up to the full amount of the baseline capacity. It does not do so. The returns it provides give little detail about where it lands and how often.  The evidence before the Tribunal does not appear to disclose the frequency of AFI’s flight operations before the draft AMS and so I do not know whether there has been an increase or decrease in its flights since the development of the draft AMS. That said, a second operator who was operating flights, ceased to operate at some point.
  7. [100]
    But in any event, it is uncontroversial that there is gross latent or unused capacity when regard is had to the baseline recommended in the draft AMS and the number of flights operated and beach landings undertaken by AFI according to its returns.

Section 53(1)(e): the size, extent and location of the proposed use in relation to other uses of the area or adjacent areas

  1. [101]
    National Parks submits that the recreation area covers some 170,000 hectares. It says that Yeeha Tours proposes to use 7 beach landing areas, and will traverse over large portions of it. It says that the size, extent and location of the proposed use in relation to other uses does not support granting a CAP.
  2. [102]
    National Parks submits that there is insufficient evidence about the existing uses of the recreation area to determine their potential interaction with Yeeha Tours’ proposed operations. The proposed landing zones are on a highway, 75 Mile Beach, and yet Yeeha Tours has not presented numbers of visitors, pedestrians, or vehicles that use the beach. Therefore, the activities impact other uses and pose an increased risk[123]  of accidents with other planes, vehicles and people. Further, it argues that if more than one operator is allowed, this will result in a non-controlled aerodrome requiring potentially 2.66 nautical miles[124] of overflight into remote areas potentially impacting visitor use in those areas.
  3. [103]
    Yeeha Tours submits that the proposal is an incremental development in the provision of recreational flights and over the area which it says will dovetail with the existing AFI operations. It says that interaction can be managed through conditions imposed on the relevant authorisations, pointing to a history in relation to interaction between AFI’s operations and other beach users and the draft AMS recommendations for management. The latter includes a set of draft conditions.[125]
  4. [104]
    National Parks criticises Yeeha Tours’ submissions that its proposed use will ‘dovetail’ with existing users and surrounding users on the basis that any Tribunal order cannot affect concurrent users or amend existing authorities under the RAM Act. Accordingly, it argues that it is irrelevant for consideration to be given to any hypothetical amendments that National Parks may make to other permits.
  5. [105]
    It is puzzling that National Parks has not presented, as far as I can ascertain, recent statistics about visitor numbers and the like. While it criticises Yeeha Tours for failing to do so, it is best placed to collect and analyse those statistics in its role of administering the relevant legislation. It is reasonable to infer that it receives returns from other tour operators and has information about private permit holders. Unless it publishes the information, it is unlikely that to be readily ascertainable by Yeeha Tours or other members of the public.
  6. [106]
    It is apparent that Yeeha Tours wishes to obtain permission to operate on the flight paths used by AFI and developed in the draft AMS and to conduct beach landings in the zones that AFI is entitled to land in according to its CAA. Therefore, I find that the footprint of the activities proposed is the same as those otherwise already being permitted by National Parks.

Section 53(1)(f): the likely cumulative effect of the proposed use and other uses on the area

  1. [107]
    Yeeha Tours submits that since the proposed use can be accommodated within the capacity currently identified and approved by National Parks, the likely cumulative effect of the proposed use with existing uses is unlikely to lead to any significant adverse impacts. 
  2. [108]
    On the other hand, National Parks argues that there is insufficient evidence of the likely cumulative effect of the proposed use. In making this submission, it refers to other aircraft operating in the area, commercial and recreational; the high volume of tourists using the area; and the large geographical area that the proposed use covers having regard to the range of overall activities already occurring. It refers to Mr Waring’s evidence that … ‘you wouldn’t have a clear idea about whether [increasing aircraft activities above the preliminary capacity] was too much or too little…’[126] until aircraft numbers approached the capacity set. Further, it argues that Mr Briest conceded that he could not say what the cumulative noise-related effects of the proposed activities would be[127] and provided no other relevant evidence about it. Accordingly, it submits that consideration of the factor weighs against granting the permit sought.
  3. [109]
    I accept that the cumulative effect of Yeeha Tours proposed activities with other existing activities is unknown. However, I am satisfied that 2 aircraft operators previously operated. Also, Dr Young’s evidence was to the effect that she was understood that recreational aircraft also fly over Fraser Island and so are currently sharing airspace with AFI.[128] The numbers of other aircraft are unknown, as are the cumulative effects of their activities and AFIs activities. Alternatively, if they are known, the tribunal was not provided with that information.
  4. [110]
    The baseline considered appropriate by the AWG in the draft AMS was a compromise, and intended to be reviewed, but has not been. Given that the baseline has not been met and one operator has since ceased operating, it is difficult to accept that a review would have resulted in significant changes, particularly in circumstances that it is apparent (because if there were, National Parks would have provided evidence to that effect) that no issues or concerns have been raised. Further, it is relevant to observe that if a permit is granted to Yeeha Tours, and negative cumulative effects are subsequently identified, it would be open to National Parks to later suspend, amend or not renew the CAP.[129]

Section 53(1)(g): public health and safety

  1. [111]
    National Parks submits that the proposed activities raise public health and safety issues, including landing site requirements and interactions with other users, vehicles and wildlife. Dr Young gave evidence about increased risk of air safety incidents and on landing in the dynamic beach environment.[130] The assessment report refers to 9 recorded aircraft incidents on Fraser Island beaches between 1973 and 2012,[131] although thankfully the oral evidence was to the effect that none of these involved the death/s of any person. Unhelpfully, there is no detail about when the incidents occurred or the circumstances in which they occurred.
  2. [112]
    As discussed earlier, Dr Young also gave evidence to the effect that she understood that recreational aircraft also fly over Fraser Island and so are currently sharing airspace with AFI.[132] This apparently unregulated interaction seems not to be considered problematic or to raise any particular safety risks for National Parks. Despite that, National Parks observes that Mr Keith Tonkin, an aviation expert, suggested that you would ‘probably want to coordinate direction of flight if there was to be a particular scenic flight’ and ‘have them travel in the same direction’[133] observing that Yeeha Tours has not developed any such procedures.
  3. [113]
    That said, National Parks presented no evidence regarding any particular current safety issues or concerns. AFI commenced operations on Fraser Island in about 1978. It is currently operating scenic flights off 75 Mile Beach, having been granted the necessary approvals and more recently CAAs by National Parks and its predecessors on an ongoing basis. In more recent years, the CAAs have been conditioned in accordance with the recommendations in the draft AMS as far as the routes approved and the flight numbers approved. During the development of the draft AMS, there were two aircraft operators, although one of them has since ceased operating. The evidence of Mr West does not reveal particular safety issues arising, although there were acknowledged safety concerns generally, despite the lack of coordination between the two then operators[134] and the need for landing areas to change according to prevailing beach conditions.[135]  The evidence of Mr West is to the effect that the 2 aircraft operators both operated off 75 Mile Beach but their operations were not coordinated and they did not cooperate with one another.[136]
  4. [114]
    National Parks submits that in accordance with the generic operational aircraft landing policy, landings may be authorised only at ‘existing constructed aircraft landing areas’[137] and for aircraft (rather than helicopters which are not relevant here) only where the proposed landing area meets CAAP92-1(1).[138] The submission was made irrespective that policy has not been complied with or applied by National Parks in granting approvals for AFI to land on 75 Mile Beach, which is not a constructed aircraft landing area. Indeed, the evidence was that the precise landing area on any given day depends upon the tide, wind and other prevailing beach conditions. The operational aircraft landing policy also specifies that the need for special management arrangements under for aircraft landing area management plans may arise, and that in such instances, National Parks may implement special management arrangements to address potential issues.[139] As discussed earlier, it asserts that special management arrangements for aircraft landings have been implemented on the eastern beaches of Fraser Island, which is also used by vehicles and pedestrians.[140] Unless the draft AMS is referred to, if there are any such special arrangements, they have not been provided in evidence in accordance with National Parks obligations to assist the Tribunal.
  5. [115]
    Yeeha Tours submits that Ms Sybil Smith, the then current Executive Director of the Permits and Approvals Unit, National Parks, who is responsible for AFI’s approvals, agreed that generally a CAA may only be issued where the proposed landing area meets the requirements of the CAAP92-1(1).[141] She agreed that she had no cause to amend or cancel AFI’s CAA.[142] Indeed, since the hearing, a further CAA has been granted to AFI.
  6. [116]
    As discussed in previous paragraphs, the draft AMS anticipates more than one aircraft operator. Indeed, there were 2 at the time it was developed.
  7. [117]
    National Parks is critical of Mr Briest’s evidence to the effect that he did not know whether the proposed landing areas meet CAAP 92-1(1) requirements.[143]  Given that he is not currently permitted to overfly or land on Fraser Island, it is hardly surprising that this is the case. Indeed, Mr Tonkin was likewise unable to say whether the beach landing areas, other than Orchid Beach, met CAAP 92-1(1) on the information he had.[144] Mr Briest said that it must be determined during visual inspection by flying over a beach at several different altitudes on each occasion before landing, measuring the runway during the overflight (using calculations based on airspeed)[145] and examining and assessing whether the surface is hard enough and otherwise suitable to land on having regard to the tide and sand.[146] Mr Tonkin also gave evidence that the best way to assess whether a landing area complies with CAAP 92-1(1) is through direct observation.[147] Further, for beach landings, he agreed that the pilot using the landing area has primary responsibility for ensuring compliance with CAAP 92-1(1), acknowledging that the site might vary according to conditions.[148]
  8. [118]
    Mr Briest gave evidence that Fraser Island is an uncontrolled aerodrome, like the majority of aerodromes in Australia.[149] Pilots make a range of mandatory and voluntary broadcasts as to their movements as though there was a control tower (even though there is not),[150] keeping other pilots aware of their movements and flying in a circuit above the aerodrome.[151]  He has landed at approximately 1000 uncontrolled aerodromes.[152] He has experience with bush and beach landings.[153]The aircraft he proposes to use are suitable for beach landings.[154]
  9. [119]
    He explained that it is not uncommon in busy recreational areas, (such as Katherine Gorge, Ayers Rock and the Great Barrier Reef Marine Park Authority)[155] for CASA to implement special procedures. The procedure may include a ‘fly neighbourly advice’. This is an instruction to pilots to operate in a manner so as to have minimal impact on ground observers by keeping operations as smooth as possible. Some special procedures are in place for culturally sensitive or significant sites, and also indicate when in a flight to resume use of standard non-controlled aerodrome operating and communication procedures.[156]
  10. [120]
    Likewise, Mr Tonkin indicated that it is appropriate to set out requirements for safe landing sites for multiple aircraft in an aircraft landing area management plan (as referred to in National Parks operational aircraft landing policy).[157] His evidence was to the effect that requirements for sharing airspace could be recorded and published by the aerodrome operator or if there were a lot of aircraft traffic or specific hazards by CASA.[158]
  11. [121]
    Dr Young suggested that multiple users are a cause for concern because, for example, there have been deaths occur during vehicular ‘tagalong tours’ (not aircraft flights) on Fraser Island.[159] As a result of that risk, she said, regulation was in place. Although she was the person responsible in her substantive position for the Applications and Approvals Unit, she suggested that she didn’t consider she was sufficiently expert to make a decision to approve any activity that increased risk, stating that she took a very risk averse perspective, and looked to reduce risk.[160]
  12. [122]
    Public health and safety issues are serious concerns. Here, I am satisfied that National Parks is the aerodrome operator, as its operational aircraft landing policy indicates. That policy anticipates that where appropriate, National Parks will develop special management arrangements. Dr Young acknowledged in evidence that if the landings were to be permitted then National Parks should consider an aircraft landing management policy and risk assessments.[161]
  13. [123]
    AFI’s CAA[162] includes conditions requiring that it must comply with all CASA requirements, as well as all relevant State and Commonwealth laws and regulations or rules in force in respect of the land and its use. Accordingly, I am satisfied that without changing the conditions of AFI’s CAA, National Parks can impose an aircraft landing area management plan which AFI and any other permitted user would be obliged to follow, including, if successful in the review, Yeeha Tours.
  14. [124]
    It is effectively unlawful for a pilot to land at a place not appropriately specified in its Operations Manual.[163] Accordingly, as discussed earlier, before any beach landings could be performed by Yeeha Tours pursuant to any CAP if it is successful in the review, Yeeha Tours’ Operations Manual would require amendment.
  15. [125]
    It is Mr Tonkin’s opinion that based on the information he had, he could not be satisfied that the privately owned Orchid Beach landing strip complies with CAAP 92-1(1). This opinion is based on concerns that the photograph/s presented indicate vegetation growth impeding the airstrip in an area. Based on the evidence of Mr Tonkin and Mr Briest discussed earlier about the pilot’s responsibility to ensure a landing area meets CAAP92-1(1), it would appear that if Mr Tonkin’s concerns about vegetation were evident at the time, a pilot would be obliged to find an alternative suitable landing area.
  16. [126]
    As discussed earlier, it appears that the operational aircraft landing policy was not applied in granting a CAA to AFI which permits it to undertake beach landings because beaches are not constructed aerodromes. That said, the evidence of Mr Tonkin and Mr Briest is consistent in specifying the pilot’s responsibility for ensuring a beach landing area complies with CAAP92-1(1).

Section 53(1)(h): any relevant Australian or international code, instrument, protocol or standard or any relevant intergovernmental agreement

  1. [127]
    The Convention on the Conservation of Migratory Species of Wild Animals was discussed earlier. I have had regard to it.
  2. [128]
    National Parks submits that the precautionary principle must be considered because it is included in Intergovernmental Agreement on the Environment, Australia, 1992, Section 3.5.1 and the Rio Declaration on Environment and Development, 1992, Principle 15. Relying upon the High Court decision in R v Murphy,[164] it argues that the relevant ‘environment’ should be ‘ascertained by reference to the person, object or group surrounded or affected.’[165] It suggests that having regard to the precautionary principle, whether the activities represent a threat of serious damage to the environment must be considered having regard to the proposed activities over a large area and 7 landing sites in areas inhabited by protected wildlife. It argues that the recreation area has outstanding natural values as a World Heritage area, National Park and Marine Park.
  3. [129]
    Yeeha Tours submits that application of the precautionary principle relied upon by National Parks is not mandated by under the RAM Act.[166] It argues that even if it did, the principle is directed to observing a cautious approach to preventing ‘serious or irreversible harm to the environment in circumstances of scientific uncertainty.’[167] It says that in any event the granting of the permit sought would not be inconsistent with a cautious approach.
  4. [130]
    The RAM Act does not mandate consideration of the precautionary principle, but National Parks’ submission is to the effect that the consequence of the international agreements imposes the obligation to apply it.  That submission does not appear to be addressed by Yeeha Tours. I accept that as a result of the intergovernmental agreements that regard must be had to the principle under the RAM Act.
  5. [131]
    The objects of the RAM Act include conservation. Threats or risk of serious harm to the environment, public health and safety, amenity and ecological habitat of protected species are relevant to environmental management of the recreation area whether considered under the RAM Act or the precautionary principle. If the R v Murphy definition of environment is adopted, the Fraser Island and surrounding areas broader environment would include the World Heritage area, National Park and Marine Park.
  6. [132]
    Do the activities represent a threat or potential threat of serious or irreversible harm? Fraser Island is a popular destination.  There is potential or risk of damage to the environment through (all) of the current activities. Risk can only be eliminated by preventing all activities in the area. However, it is not suggested by National Parks that tourist and other activity of the type sought to be operated on a very limited basis only by Yeeha Tours, should cease. Indeed, the RAM Act provides for CAP and CAA applications and requires that the applications, including Yeeha Tours application be considered, and a decision made on its merits having regard to the relevant prescribed matters. National Parks properly submits that caution is appropriate.
  7. [133]
    I accept, and agree, that caution is essential. However, as discussed throughout these reasons for decision, the evidence presented does not establish or suggest that the level of activities currently approved for the recreation area are causing issues of concern. Further, the Management Statement, the SVC and the draft AMS were all developed, and in the case of the Management Statement reviewed again,  after the intergovernmental agreements relied upon.  Accordingly, it is reasonable to infer, and I do draw the inference, that they were developed and reviewed, in the context of application of the precautionary principle. In saying that, I acknowledge again that the draft AMS has not been endorsed by National Parks, but I am satisfied that it was developed within the frameworks set by it.
  8. [134]
    As Mr West said in effect, there do need to be significant restrictions on aircraft flying in the area and landing on the beach.[168] Those restrictions are imposed through the system of issuing (and refusing) permits. The RAM Act provides that system. Through proper management and administration, the potential threat of serious damage and risk is minimised.

Section 53(1)(i): the requirements mentioned in section 50

  1. [135]
    It is common ground in this instance that those preconditions to the granting of a CAP are satisfied by Yeeha Tours.

Section 53(1)(j): whether there are any grounds for refusing the application

  1. [136]
    It was not submitted specifically that there are other grounds for refusing the application.
  2. [137]
    I make the observation, although it was not National Parks submission,  that some departmental representatives’ evidence suggested that if latent capacity is to be given out, it is preferable for reasons of equity principles to do it through an EOI process, rather than on individual application. The RAM Act provides for a permit system as discussed, as well as an EOI system for CAAs.[169] Yeeha Tours was entitled to make the CAP application and is entitled to have it determined.

Section 53(2): the chief executive may have regard to anything else the chief executive considers appropriate to achieve the purposes of the RAM Act

  1. [138]
    As discussed, I have had regard to relevant lawful departmental policy as well as relevant Guidelines.
  2. [139]
    The CASA Guidelines referred to in the material are relevant and have been considered by me. National Parks appears to submit that the operational aircraft landing policy and the Management Statement are relevant under this criterion. Yeeha Tours agrees that Management Statement is relevant and says it supports the grant of the CAP to it. Although the Management Statement is not a management plan for the RAM Act, I accept that it is relevant departmental policy and it has been considered on that basis. It is not inconsistent with the grant of the CAP sought by Yeeha Tours.
  3. [140]
    The QPWS operational aircraft landing policy has been considered. As previously discussed, it has not been applied by National Parks in granting the existing CAA to AFI, because it does not provide for approvals for beach landing sites only for landings at constructed landing areas. In this respect, I have not applied it as to do so would be unjust having regard to National Parks’ own actions. Further, I observe that it records that a special management arrangements are in place for Fraser Island, which can only be a reference to the arrangements recommended in the draft AMS which National Parks says is not endorsed as policy. I find on the evidence of both Mr Tonkin and Mr Briest that suitable beach landing areas that comply with CASA Guideline CAAP 92-1(1) must be identified by the pilot having regard to the relevant prevailing conditions.
  4. [141]
    As above, National Parks opposes consideration of the draft AMS. For the reasons earlier explained, it sets out relevant evidence and has been considered on that basis. I am satisfied that that the capacities recommended in the draft AMS as representing sustainable levels for commercial aircraft operations are relevant. They are the best evidence available as to what is appropriate for the area based on the work of some committed and knowledgeable persons, who although were mostly not aviation experts, conducted practical assessments and consultation to produce the report.  In any event, CASA provided aviation expertise on the AWG. It participated and according to Mr Waring, the AWG was guided in relation to relevant matters by the CASA representative.[170] 
  5. [142]
    The current CAA conditions and period of the CAA granted to AFI are relevant. All of the capacity for commercial flights and landings recommended in the draft AMS has been allocated to it to operate. Mr Waring gave evidence to the effect that it is very poor recreational management to allocate latent capacity, on the basis that it is not currently being used by the person or entity to whom it is allocated, if that meant total allocation exceeded sustainable capacity.[171]  AFI’s CAA now expires in June 2019.

Should Yeeha Tours’ application for a CAP be granted?

  1. [143]
    I note that Yeeha Tours application was relevantly for a CAP to conduct six visits per day. As earlier discussed, in the review, Yeeha Tours has clarified that it seeks authorisation of one or more of the following commercial activities on any reasonable conditions:
    1. (a)
      Transit flights between the mainland and 75 Mile Beach using the transit routes identified in Map 14;
    2. (b)
      Scenic flights departing from (and returning to) 75 Mile Beach using scenic routes identified in Map 13 and landing sites identified in Map 6;
    3. (c)
      Scenic flights departing from (and returning to) the mainland using the scenic routes identified in Map 13 and Map 14.
  2. [144]
    It is uncontroversial that the s 50 requirements are satisfied. Therefore, a CAP may be granted.[172] Pursuant to s 51, it was open to the decision-maker to require Yeeha Tours to give public notice of the application and invite interested persons to make written submissions. If public notice was required, any submissions made must then be taken into account.[173] The evidence does not suggest that the decision-maker exercised the discretion to require public notice and I have not been provided with submissions in response to any such notice. In any event, it is not a mandatory requirement.
  3. [145]
    I have discussed above the s 53 factors.  I must weigh them in order to decide whether the correct and preferable decision is to grant the application or refuse it under s 52. If it is granted, I must consider whether it should be granted upon conditions, and if so, what conditions, and for what period.
  4. [146]
    The purposes of the RAM Act include the management of recreational activities subject to the conservation, cultural, educational, production and recreational values of the area. There is no RAM Act management intent for Fraser Island. However, the Management Statement contemplates commercial and recreational aircraft use.  Of themselves, these matters do not weigh for or against the grant or refusal of a CAP, although clearly the values specified must be considered. Careful attention must be given to those values in considering the relevant factors specified in s 53.
  5. [147]
    It is uncontroversial that the recreation area and surrounds has outstanding environmental and cultural values as a World Heritage Area, National Park and as the traditional land of the Butchulla People. It is surrounded by a Marine Park with outstanding values. The potential for impact on the local ecology and in particular, as identified migratory birds and Fraser Island dingoes should be avoided. 
  6. [148]
    It is appropriate that if a CAP is granted, conditions are in place to minimise the potential that Yeeha Tours’ operations impact adversely on those values. The evidence suggests that this is achievable through the imposition of appropriate conditions and the amendment of Yeeha Tours’ Operations Manual, as discussed later. It would also be also highly desirable that (further) special aircraft management arrangements be developed and implemented by National Parks, if a CAP is to be granted.
  7. [149]
    It is highly undesirable that amenity of the area be compromised by the activities. Noise and sight offences were considered when the draft AMS was being developed. Mr West’s evidence was persuasive in suggesting that both were minimised by adopting the flight routes and heights recommended in the draft AMS, in the absence of subsequent reported concerns following their adoption in AFI’s CAAs.
  8. [150]
    The proposed activities of Yeeha Tours cover an extensive area. All but the beach landings would not be directly on Fraser Island itself, but rather through overflying in airspace in conducting scenic flights. Other than noise and sight effects of the aircraft, there are undoubtedly some emissions from the aircraft. That said, AFI and an unknown number of recreational aircraft already use the airspace. Granting a CAP that allows a very limited number of flights by Yeeha Tours would not introduce new activities to the areas concerned, only allow a small amount of activity consistent with the activity conducted by other users in the area. It is would not be inconsistent with the Management Statement.
  9. [151]
    It appears that National Parks does not collect the data and information necessary to establish or ascertain the cumulative effect of existing activities. The cumulative effect of those existing activities together with any small number of additional activities of Yeeha Tours that may be permitted if its application succeeds is likewise unknown. However, if a CAP is granted, limits would be placed upon Yeeha Tours activities. This should ensure that its activities adds little if at all to the current cumulative effects of activities already permitted. Interactions with other aircraft and ground tours and wildlife are most undesirable. However, as discussed in relation to public health and safety issues, I am satisfied these can be managed appropriately.
  10. [152]
    I accept that there are general public health and safety concerns as a result of the existing multiple users. In respect of multiple aircraft operators, two commercial operators co-existed previously even though they did not cooperate or coordinate. It is reasonable to infer that there were no particular concerns arising out of that arrangement because if there were those would have been in evidence and the subject of comment in the draft AMS. To the contrary, Mr West’s evidence was that the arrangement was unproblematic despite their failure to cooperate or coordinate their activities. Further, currently recreational aircraft share at least airspace with AFI and no evidence was presented to suggest that this is problematic. It is reasonable to infer from the lack of any evidence to the contrary, that this is not the cause of any current safety concern for National Parks. The evidence did not disclose whether any recreation flights are or have been permitted to land on 75 Mile Beach, in the areas where AFI lands.
  11. [153]
    Presumably, the relevant airspace is not sufficiently busy to warrant CASA developing a protocol, or it would have taken steps to do so. It was represented on the AWG and guided the draft AMS. The small number of, it seems based on the evidence, less serious incidents (although any aircraft incidents are of course, serious,) referred to in the assessment report suggests that the relevant CASA Guidelines that are followed by all pilots concerned have prevented further issues. That said, special aircraft management arrangements, could specify the direction of circuit that aircraft are to take and provide for protocols and procedures to be followed by all operators including AFI, recreational aircraft and, if a permit is granted to it, Yeeha Tours. In respect of interaction with other users and wildlife on the ground, special aircraft management arrangements could also provide for operations with other aircraft, vehicles and pedestrians (and perhaps potentially wildlife) in a manner that would minimise the risk of any safety and other undesirable interaction issues. This would appear to be a risk management strategy that is highly desirable irrespective of this application and its outcome.
  12. [154]
    I observe the reference in evidence that was made to risk averse decision-making. Perhaps, the reference was intended to be responsive to the precautionary principle. However, the only way to eliminate risk is to ban all activities. This is not the object of the RAM Act as Parliament has enacted it. I make the observation that administrators, (and on this review, the Tribunal standing in the shoes of the chief executive,) have an obligation perform their properly delegated statutory functions, notwithstanding that they may personally prefer to avoid the possibility that indirectly as a consequence of their decisions, subsequent human actions or error may result in adverse consequences at some future time in the performance of activities the subject of a CAA or CAP. 
  13. [155]
    As discussed earlier, risks related to bird strike during flight and interaction generally with wildlife and provision for beach landings must be appropriately  addressed by Yeeha Tours in its Operations Manual if it is to be permitted to operate its proposed activities.
  14. [156]
    Also, given the matters discussed in draft AMS and the operational aircraft landing policy and CASA’s role in air safety generally, if a CAP is to be granted to Yeeha Tours, National Parks should consult with CASA about any concerns CASA may have and any conditions it would consider appropriate, before the terms of the CAP could be finalised.
  15. [157]
    I accept that the RAM Act does not mandate application as opposed to consideration  of the precautionary principle. That said, s 53(1)(h) allows it and the various  intergovernmental agreements and the Convention to be taken into account. As discussed earlier, the RAM Act objects mandates a careful consideration to have regard to the relevant values. For the reasons explained earlier, in making my decision, I am satisfied that I am not acting inconsistently with the precautionary principle.
  16. [158]
    There may be other potential users who may wish to seek CAPs if Yeeha Tours is successful, observing that some in National Parks may favour an EOI process. The RAM Act allows for it but does not mandate it. Yeeha Tours has sought review. I can only consider its application.
  17. [159]
    In all of the circumstances, subject to Yeeha Tours first satisfactorily amending its Operations Manual to appropriately deal with the management of the risk of bird-strike during overflights and interaction with wildlife generally and to provide for beach landings, and subject to CASA confirming that it has no concerns or advising of any further conditions it may consider appropriate if two commercial aircraft operators are permitted to conduct scenic flights and beach landings in the recreation area as outlined, I am satisfied that the correct and preferable decision is that Yeeha Tours should be granted a CAP for a period of 2 years from the date of operation on appropriate conditions. The date of operation will be on a date to be specified by the Tribunal, but I intend that it will be the day after the expiry of AFI’s current CAA.
  18. [160]
    My intention is to grant a CAP that permits Yeeha Tours to commence up to its six proposed daily visits for scenic flights over Fraser Island allowing beach landings on the eastern beach. Flights and landings will be permitted only in compliance with Maps 6, 13 and 14 of the draft AMS. Subject to any CASA input, although it is desirable for special management arrangements to be developed by National Parks for use of the airspace, direction of circuits, (as well as landings), in view of the dearth of evidence presented about any concerns about interactions between AFI aircraft and recreational aircraft in shared airspace there is no reason that scenic flights by Yeeha Tours cannot be safely commenced, even if those special management arrangements are not developed by the time AFI’s current CAA expires.
  19. [161]
    My orders cannot affect AFI’s CAA. However, my recommendation is that when National Parks considers renewal of its CAA, that it will decrease the capacity granted to it, which is unused by in in any event, equivalent to the capacity to be allocated to Yeeha Tours for beach landings on 75 Mile Beach and its proposed 6 visits for scenic flights per day. AFI’s operations will therefore not be affected. It is not my intention that as a consequence of my orders that the total capacity for scenic flights and beach landings exceeds the recommended capacity in the draft AMS.
  20. [162]
    In the meantime, as discussed, I recommend that National Parks develops special arrangements for sharing of airspace as it may consider desirable, as well as aircraft landings on the eastern beaches of Fraser Island as referred to in the operational aircraft landing policy.

What orders and directions be made?

  1. [163]
    At this stage, I do not consider I am in a position to make, and do not propose to make, final orders on the review without further steps being taken by Yeeha Tours to amend its Operations Manual and for National Parks to consult with CASA. I require further input and submissions from the parties about the precise terms and conditions to be included in the CAP.
  2. [164]
    I direct Yeeha Tours to make the necessary amendments to overcome the shortcomings in its Operations Manual. In the meantime, National Parks must undertake all necessary consultation with CASA.
  3. [165]
    Also, in case it is useful, I also refer Yeeha Tours’ application to National Parks for reconsideration under s 23 of the QCAT Act. In view of the amendments required to the Operations Manual and any steps that National Parks may choose to take towards developing special arrangements, I will extend the time for completion of the reconsideration from the usual 28 day period to 60 days. If National Parks is prepared at that stage to make a different decision on the application, it may be that the reconsideration brings the proceedings to a conclusion.
  4. [166]
    If National Parks decision is unchanged, I expect the parties to provide a draft CAP and associated conditions, preferably by agreement, to give effect to my reasons for decision. If there is not agreement, then the drafts from each party should be provided together with any submissions about the orders they contend the Tribunal should make.  In respect of the amendments required to the Operations Manual, I will direct that National Parks advise whether it is satisfied that the Manual is compliant and the shortcoming’s identified by Mr Tonkin have been overcome. This can be attended to when it provides its submissions about appropriate conditions. It is my expectation that National Parks’ submissions will address any CASA comments and requirements, or confirm that there are none.
  5. [167]
    Subject to Yeeha Tours making satisfactory amendments to its Operations Manual, unless otherwise ordered, I intend to then make final orders without a further oral hearing setting aside National Parks’ decision and substituting my own decision granting Yeeha Tours application to give effect to my conclusions about the correct and preferable decision, on such terms and conditions as I may consider appropriate.
  6. [168]
    Both parties are granted liberty to apply, in the event that the timetable I have set is problematic or either party wishes to request further oral hearing to make submissions about the final orders to be made.

Footnotes

[1] Exhibit 12, para 10.

[2] Exhibit 12, para 11.

[3] The application process for a commercial activity agreement is set out in the RAM Act at Part 5, especially Division 3.

[4] Exhibit 7, Tab 27, at p 647 Commercial activity agreement for the period 24 April 2013 to 23 April 2018.

[5] Exhibit 7, Tab 27, p 669.

[6] Exhibit 7, Tab 17, p 647.

[7] Copy of CAA filed 6 September 2018 in compliance with QCAT directions dated 28 August 2018.

[8] Exhibit 13 and attachments.

[9] Exhibit 1, para [6].

[10] Exhibit 1, para [17].

[11] Exhibit 7, Tab 23 (and see related Policy Fact Sheet at Exhibit 7, Tab 22).

[12] Exhibit 7, Tab 1, p 3.

[13] Exhibit 7, Tab 2.

[14] Exhibit 7, Tab 4.

[15] Exhibit 7, Tab 4, p 46.

[16] That said, in the proceedings, documents were not provided by National Parks that suggest or confirm previous refusals. Indeed, National Parks submitted that other applications that may have been made were not relevant to this review proceeding.

[17] Exhibit 7, Tab 4, pp 58-61.

[18] Exhibit 7, Tab 4, p 51.

[19] Exhibit 7, p 67.

[20] Exhibit 7, Tab 24, draft Great Sandy Region Aircraft Management Strategy, Maps 6 , 13 and 14.

[21] See generally QCAT Act Chapter 2 Division 3.

[22] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), ss 19-20.

[23] QCAT Act, s 20(1).

[24] QCAT Act s 17(2).

[25] QCAT Act s 21(1).

[26] QCAT Act s 21(2).

[27] RAM Act, s 18 and s 20.

[28] RAM Act, s 19, s 21 and s 22.

[29] RAM Act, s 23.

[30] RAM Act s 235.

[31] RAM Act s 237(1) and (2).

[32] RAM Act s 237(3).

[33] RAM Reg, s 4 and Schedule 2.

[34] RAM Act, Schedule Dictionary.

[35] RAM Act, Schedule Dictionary.

[36] Exhibit 7, Tab 18.

[37] Exhibit 7, Tab 26.

[38] Several versions in evidence, see Exhibit 7, Tab 24 (July 2009 Version); and Exhibit 9 (September 2009).

[39] Exhibit 7, Tab 24, esp pp 340-341 and 379; and Exhibit 9, esp pp 1-2 and 23.

[40] Exhibit 7, Tab 19.

[41] Exhibit 7, Tab 20.

[42] Exhibit 7, Tab 21.

[43] Exhibit 7, Tab 18, coversheet and page 1.

[44] Exhibit 7, Tab 18, coversheet and pages 2-3.

[45] Exhibit 7, Tab 18, page 2.

[46] Exhibit 7, Tab 18, coversheet.

[47] Exhibit 14, page 3

[48] A search of National Parks website as at 20 September 2018 does not reveal a further revised version.

[49] Exhibit 7, Tab 18, page 82/214.

[50] Exhibit 7, Tab 18, commencing p 81/213.

[51] Exhibit 7, Tab 18, paragraph 3.20 p 8/241.

[52] Exhibit 7, Tab 26, pp 8/441 and 30/463.

[53] Transcript, Day 1, 1-90, lines 30-48.

[54] Exhibit 7, Tab 26, p14/447 and 17/450.

[55] For example, Exhibit 7, Tab 26, pages 8/441.

[56] Exhibit 7, Tab 24, p 345.

[57] Exhibit 7, Tab 24, p 345.

[58] Exhibit 9, Map 6, p 34.

[59] Exhibit 7, Tab 24, p 381; Exhibit 9, p 25.

[60] Exhibit 7, Tab 24, p 381; Exhibit 9, p 24.

[61] Exhibit 7, Tab 19, p 254.

[62] Exhibit 7, Tab 19, p 255.

[63] Ibid.

[64] (1979) 2 ALD 634, per Brennan J (as he then was).

[65] Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Agriculture, Fisheries and Forestry [2014] QCATA 161.

[66] Transcript, Day 2, 2-47 to 2-49.

[67] Transcript, Day 1, 1-91.

[68] Ibid.

[69] Transcript, Day 1, 1-89

[70] Transcript, Day 2, 1-14lines 2-5.

[71] Transcript, Day 2, 2-13, line 40 to 2-15, line 9.

[72] Transcript, Day 2, Brett Waring 2-8, lines 25-30.

[73] Transcript, Day 2, 2-38, lines 29-31.

[74] Transcript, Day 2, 2-39 to 2-44, line 2.

[75] Exhibit 7, Tab 24, pages 50/39358/401 and 59/402

[76] Exhibit 7, Tab 27, pages 669, 671 and 673.

[77] Transcript, Day 2, 2-22, lines 8-13.

[78] Ibid.

[79] Exhibit 14, para 17.

[80] Exhibit 7, Tab 18, second page.

[81] Exhibit 7, Tab 25.

[82] Ibid, Definitions, ‘Determination’, p 410.

[83] Ibid, Para 2, p412.

[84] Ibid, para 6-7, pp 412-413.

[85] Ibid, Para 11(a)(iii), p 416.

[86] Ibid, Paras 12-15, p 418.

[87] National Parks submissions filed 11 May 2017, para 29.

[88] Exhibit 14, para 22.

[89] Transcript, Day 1, 1-58, lines 1-4.

[90] Transcript, Day 1, 1-70, lines 38-40.

[91] Transcript, Day 1, 1-70, lines 45-46, 1-71, lines 1-7 and 1-72, lines 6-13.

[92] Transcript, Day 1, 1-62, lines 15-25.

[93] Transcript, Day 1, 1-65, lines 44-47 and 1-66, line 1.

[94] Transcript, Day 1, 1-66, line 15.

[95] Transcript, Day 1, 1-68 to 1-69.

[96] Transcript, Day 1, 1-69, lines 33-36.

[97] Transcript, Day 1, 1-94, lines 20-23.

[98] Transcript, Day 1, 1-101, lines 11-25.

[99] Transcript, Day 1, 1-96, lines 28-38.

[100] Exhibit 7, Tab 18, p123, Map 5 and Transcript, Day 1, 1-98 to 1-99.

[101] Transcript, Day 1, 1-99 line 44 and 1-100, line 3.

[102] Transcript, Day 1, 1-101, lines 1-5.

[103] Transcript, Day 1, 1-105, lines 16-30.

[104] Transcript, Day 1, 1-105, lines 1-14.

[105] Transcript, Day 1, 1-104, lines 31-45.

[106] Transcript, Day 1, 1-107, lines 43-45.

[107] Transcript, Day 1, 1-108, lines 10-31.

[108] Transcript, Day 1, 1-109, lines 5-10.

[109] Transcript, Day 1, 1-109, lines 1-11.

[110] Transcript, Day 1, 1-109, lines 13-16.

[111] Exhibit 8.

[112] Exhibit 7, Tab 26, p 30/463.

[113] Exhibit 7, Tab 26, ‘Section 2-Executive Summary,’ p 8/441.

[114] Ibid.

[115] Exhibit 14.

[116] Exhibit 14, para [27].

[117] Exhibit 7, Tab 4, Attachment 6, p 59.

[118] Exhibit 7, Tab 24 p 350.

[119] Ibid, 357.

[120] Ibid, 383.

[121] Ibid, 357.

[122] Ibid, 379.

[123] Exhibit 14, para [31].

[124] Transcript 1-17, line 39.

[125]   Exhibit 7, Tab 24, pp 367-371.

[126] Transcript Day 1, 1-108, lines 35-37.

[127] Transcript Day 1, 1-36, line 24.

[128] Transcript, Day 2, 2-55, lines 35-46.

[129] RAM Act, Part 4, Division 6.

[130] Exhibit 14, paras [31-32].

[131] Exhibit 7, Tab 4, Attachment 3.

[132] Transcript, Day 2, 2-55, lines 35-46.

[133] Transcript Day 2, 2-74 lines 14-15.

[134] Transcript Day 1, 1-72.

[135] Ibid.

[136] Transcript, Day 1, 1-72.

[137] Exhibit 7, Tab 19, p 254, ‘Aircraft landings- general’.

[138] Exhibit 7, Tab 19, p 254, ‘Aircraft landing areas to meet certain requirements’.

[139] Exhibit 7, Tab 19, p 255, ‘Special management arrangements under aircraft landing area management plans’.

[140] Ibid.

[141] Transcript Day 2, 2-29, lines 14-25.

[142] Transcript Day 2, 2-26, lines 19-22.

[143] Transcript Day 1, 1-42, lines 26-31.

[144] Exhibit 15, p 24.

[145] Transcript Day 1, 1-24, line 29-36; and 1-25, line 6.

[146] Transcript Day 1, 1-25, lines 1-35.

[147] Transcript Day 2, 2-72, lines 1-10.

[148] Transcript Day 2, 2-72, lines 1-10.

[149] Transcript Day 1, 1-18, lines 5-33.

[150] Transcript Day 1, 1-15, lines 31-40; and 1-16 to 1-18.

[151] Exhibit 3, CAAP 166 and Transcript Day 1, 1-16 and 1-17.

[152] Transcript Day 1, 1-18, lines 25-26.

[153] Transcript Day 1, 1-53, lines 40-41.

[154] Transcript Day 1, 1-25, lines 41-44 and 1-26, lines 17-23.

[155] Transcript Day 1, 1-19, lines 8-14 and Exhibit 1, pp 93, 88, 82 respectively.

[156] Transcript Day 1, 1-21 lines 5-45

[157] Transcript Day 2, 2-72 to 2-73.

[158] Transcript Day 2, 2-75, lines 1-8.

[159] Transcript Day 2, 2-56, lines 22-42.

[160] Ibid.

[161] Transcript Day 2, 2-50 lines 4-7 and 2-51, line 46 to 2-52, line 3.

[162] Exhibit 7 Tab 27 and CAA dated 20 July 2018 and filed on 6 September 2018.

[163] Civil Aviation Regulations r 215(9).

[164] (1990) 95 ALR 493.

[165] R v Murphy (1990) 95 ALR 493, 499.

[166] Alliance to Save Hinchinbrook Inc v Cook [2007] 1 Qd R 102, [35].

[167] Alliance to Save Hinchinbrook Inc v Cook [2007] 1 Qd R 102, [31].

[168] Transcript, Day 1-83, lines 25-35.

[169] RAM Act Part 5 Division 2.

[170] Transcript, Day 1, see generally pages 1-104 to 1-109 regarding the development of capacities, and in particular 1-109, lines 1- 16.

[171] Transcript, Day 2, 2-17, lines 32-35.

[172] RAM Act s 50(1).

[173] Ibid s 52(4).

Close

Editorial Notes

  • Published Case Name:

    Yeeha Tours and Holidays Pty Ltd v Department of National Parks, Sport and Racing

  • Shortened Case Name:

    Yeeha Tours and Holidays Pty Ltd v Department of National Parks, Sport and Racing

  • MNC:

    [2018] QCAT 345

  • Court:

    QCAT

  • Judge(s):

    Senior Member Howard

  • Date:

    02 Oct 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alliance to Save Hinchinbrook v Cook[2007] 1 Qd R 102; [2006] QSC 84
3 citations
Jump To
Cite 1 - [2007] 1 Qd R 102
Cite 2 - [2007] 1 Qd R 102
Cite 3 - [2007] 1 Qd R 102
Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
2 citations
Jump To
Cite 1 - (1979) 2 ALD 634
Cite 2 - (1979) 2 ALD 634
R v Murphy (1990) 95 ALR 493
3 citations
Jump To
Cite 1 - (1990) 95 ALR 493
Cite 2 - (1990) 95 ALR 493
Cite 3 - (1990) 95 ALR 493
Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Agriculture, Fisheries and Forestry [2014] QCATA 161
2 citations
Jump To
Cite 1 - [2014] QCATA 161
Cite 2 - [2014] QCATA 161

Cases Citing

Case NameFull CitationFrequency
Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads [2021] QCAT 4361 citation
Yeeha Tours and Holidays Pty Ltd v Department of Environment & Science [2020] QCAT 13134 citations
Yeeha Tours and Holidays Pty. Ltd. t/as Mile High Aviation v Department of Environment & Science [2019] QCAT 1762 citations
1

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