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Yeeha Tours and Holidays Pty. Ltd. t/as Mile High Aviation v Department of Environment & Science QCAT 176
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Yeeha Tours and Holidays Pty Ltd t/as Mile High Aviation v Department of Environment & Science  QCAT 176
Yeeha Tours and Holidays Pty Ltd t/as Mile High Aviation
Department of ENVIRONMENT & SCIENCE
General administrative review matters
2 July 2019
On the papers and 26 June 2019
Senior Member Howard
‘Pursuant to s 52(1) of the Recreation Areas Management Act 2006 (Qld), a commercial activity permit is granted to Yeeha Tours and Holidays Pty Ltd trading as Mile High Aviation on the following conditions:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where decision maker refused commercial activity permit – where internal review upheld original decision to refuse commercial activity permit – where external review of decision sought – where substantive review considered by the Tribunal – where parties directed to take further steps – whether Commercial Activity Permit should be granted and if so, on what conditions
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 23, s 32
Recreation Areas Management Act 2006 (Qld) s 52(1)
Yeeha Tours and Holidays Pty Ltd v Department of National Parks, Sport and Racing  QCAT 345
Rebecca Pezzutti, solicitor of Bell Dixon Butler Lawyers
Anne-Maree Ireland, in house solicitor of the Department of Environment and Science
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- 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 (‘CAP’) under the Recreation Areas Management Act 2006 (Qld) (the ‘RAM Act’). If granted, Yeeha Tours proposed to operate a scenic flight operation including beach landings within the Fraser Island recreation area. The application was refused by National Parks at first instance, and again on internal review. Yeeha Tours sought review in the Tribunal.
- I heard the application over a three day period and delivered written reasons for decision on 2 October 2018. My reasons for decision were published. I made the following orders and directions:
- 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.
- 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.
- Unless the application for review is withdrawn by Yeeha Tours and Holidays Pty Ltd:
- 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:
- 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.
- 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.
- Both parties have liberty to apply on the giving of seven (7) days’ notice to the other party.
- For current purposes, it is useful to reiterate some of the abbreviations and references used in my earlier reasons for decision and adopt them again here. In particular, in addition to those terms defined in these reasons for decision, the following abbreviations are adopted:
- Air Fraser Island (‘AFI’);
- Draft Great Sandy Region Aircraft Management Strategy (‘draft AMS’);
- Commercial Activity Agreement (‘CAA’); and
- Maps 6, 13 and 14 are Maps 6, 13 and 14 as attached to the draft AMS.
- Further, the name of the Department responsible for administering the RAM Act has changed. The record was recently corrected to reflect that the respondent is now the Department of Environment & Science (the Department).
- In my reasons for decision of 2 October 2018, I considered the relevant matters raised in the review. It is unnecessary to revisit the myriad of issues raised. Suffice it to say, I found that the correct and preferable decision, subject to Yeeha Tours satisfactorily:
- (i)amending its operations manual to appropriately provide for:
- (a)risk management in relation to bird strike during over flights and interaction with wildlife general;
- (b)beach landings; and
- (ii)in effect, meeting all civil aviation safety authority (CASA) requirements,
is for a CAP to be granted to Yeeha Tours for a period of two years from the date of operation on appropriate conditions. I indicated that I expected that the date of commencement of the CAP would be a date to be specified, but that I intended it would be the day after the expiry of AFI’s then current CAA, that is, 5 June 2019. I was unable to make my final determination by 6 June 2019 as anticipated. At this stage, I note that I was informed by the Department on 26 June 2019 that AFI has reapplied for a CAA, but that a decision has not yet been made about the application.
- Further, I said in my reasons for decision, as follows:-
- 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.
- 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 it 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.
- 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.
- 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….
- The parties requested extensions of dates to comply with my directions of 2 October 2018. That said, Yeeha Tours filed its amended operations manual on 7 January 2019. The Department advised that it reconsidered its decision to refuse the CAP. On 27 February 2019, it advised the Tribunal and Yeeha Tours that its decision remained to refuse that its decision was unchanged.
- Further, the Department confirms that it has consulted with CASA. It reports that CASA has advised that it will only issue an Air Operators Certificate if it is satisfied with the Yeeha Tours operations manual. I understand from this that it has not yet done so. The Department submits that while it has concerns about safety, in particular beach landings, a condition has been included in the draft CAP submitted by the parties for the Tribunal’s consideration with respect to meeting all relevant requirements of CASA. Further, it notes that if Yeeha Tours is granted a CAP, that fees of $490.60 would be payable for a CAP of two years.
- Yeeha Tours submissions confirm that the parties have attempted to agree the terms of a proposed CAP and conditions to give effect to my reasons for decision dated 2 October 2018. Yeeha Tours advises that although they have narrowed the areas of disagreement, there remained two areas upon which they have been unable to agree, as follows:
- The Department has proposed a maximum of 4 persons per flight.
- The Applicant asks the Tribunal to allow a maximum of 10 persons per flight, which is consistent with the capacity of the existing permit holder and well within the scope of the “laden to capacity” identified by reference to Map 6 Attachment 1 to the draft CAP.
- Transit Flights
- The Department’s proposed CAP does not mention transit flights.
- The Application included a request for “transit flights between the mainland and 75 mile beach using the transit routes identified in Map 14” and the Applicant asks that the Tribunal allow that activity.
- The issue concerning transit flights has since been agreed by the parties and provision for transit flights is included the draft CAP conditions.
- Subject to the Tribunal’s determination of the outstanding issue, Yeeha Tours submits that orders should be made setting aside the Department’s decision and in substitution thereof, pursuant to section 52(1) of the RAM Act, Yeeha Tours application for a CAP lodged on 11 November 2015 be granted subject to the conditions set out in the attached draft commercial activity permit.
- The conditions in the draft CAP provided by Yeeha Tours includes conditions concerning insurance, compliance with laws, and indemnity. For completeness, I observe that the proposed conditions in the draft CAP also include the following:
PG6 Commercial aircraft activity must comply with:
- a)All relevant requirements of the Civil Aviation Safety Authority of Australia (CASA), or its successor;
- b)Any aircraft management plan developed by the Department of Environment and Science;
- c)Any special aircraft management arrangements approved by CASA; and
- d)All relevant State and Commonwealth laws and regulation, including those relating to the safety of staff, passengers and other uses of Fraser Island.
Conditions for: Great Sandy National Park – Fraser Island
L1G1 Flights over the national park are permitted between sunrise and sunset only.
L1G2 The Principal Holder must contact the Ranger in Charge, Fraser Island (Southern) on (07) 4127 9128 and/or the Ranger in Charge, Fraser Island (Northern) on (07) 4127 9138 or (07) 4127 9190 prior to the commencement of each day’s aerial activities over the island.
L1G3 The Principal Holder is authorised to conduct scenic flights over Fraser Island (excludes Cooloola section of Great Sandy National Park) as per scenic flights and passenger transfer routes in Map 13 and 14.
L1G4 The Principal Holder is authorised to conduct transit flights between the mainland and Seventy-Five Mile Beach using transit routes identified in Map 14.
L1G5 The Principal Holder is authorised to conduct beach landings as per the beach landing site zones in Map 6.
L1G6 The Principal Holder must adhere to specified minimum flying heights, no fly zones and stand-of distances as specified in Map 13 and 14.
- The Department did not provide submissions concerning the disagreement about the maximum number of passengers per flight. In the absence of any contrary argument in support of the Department’s position, and in the absence of evidence suggesting that the capacity currently afforded to AFI has caused any relevant issues, I find that it is appropriate to similarly permit Yeeha Tours to operate at a maximum capacity of 10 persons per flight.
- The CAA for AFI included an Operator’s Warranty, as follows:
4. Operator’s Warranty
The Operator warrants and represents to the State that:
- (a)the Operator has the power, authority and ability, and has obtained all necessary consents and approvals to enter into this Agreement and perform its obligations under this Agreement;
- (b)the Operator will discharge its obligations under this Agreement with all due skill, care and diligence; and
- (c)the Operator has had the opportunity to obtain independent legal advice prior to entering into this Agreement.
- The draft CAP does not contain a similar clause. However, the Department submits that the terms of the CAA and the draft CAP were compared and it is satisfied that although in different terms and format, all issues covered in the Operator’s Warranty are addressed in the draft CAP. On that basis, I do not propose to include an additional warranty.
- Further, the details specified under the section entitled, ‘Permitted Location Activity Details’ should, it seems to me, include reference, as does AFI’s CAA, to the requirement to relevantly operate in accordance with Maps 6, 13 and 14 of the draft AMS and those maps must be attached to the CAP as annexures or attachments. Both parties indicated that this course was in accordance with their intention at the hearing on 26 June 2019, and agree that the Maps should be attached.
- Subject to payment by Yeeha Tours of the balance of the applicable fees for a two year CAP, I am satisfied that the correct and preferable decision is for the CAP to be issued to Yeeha Tours for the period of two years in the terms indicated.
- I make orders accordingly.
- Published Case Name:
Yeeha Tours and Holidays Pty. Ltd. t/as Mile High Aviation v Department of Environment & Science
- Shortened Case Name:
Yeeha Tours and Holidays Pty. Ltd. t/as Mile High Aviation v Department of Environment & Science
 QCAT 176
Senior Member Howard
02 Jul 2019