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Jeremy Tager[*]
In October 2000, the Administrative Appeals Tribunal (the Tribunal) handed down its decision in North Queensland Conservation Council v the Great Barrier Reef Marine Park Authority [2000] AATA 925. The decision brought to a close at least one part of one of the most contentious and long-lived coastal development battles in Queensland and brought the irrevocable destruction of a portion of the Great Barrier Reef World Heritage Area one step closer.
In this case the North Queensland Conservation Council (the NQCC) contested the legality of a permit for works issued by the Great Barrier Reef Marine Park Authority (the Authority) to Nelly Bay Harbour Pty Ltd (NBH), which allowed for the construction of a canal estate and harbour partially within the Great Barrier Reef Marine Park (the Marine Park).
The NQCC made a decision not to pursue World Heritage issues in the Tribunal, although the entire development area is part of the Great Barrier Reef World Heritage Area. Although the World Heritage Convention is intended to protect listed properties through 'ensuring the identification, protection, conservation, presentation and transmission to future generations',[1] this was not the standard used by the Authority in its decision to approve works within the Marine Park nor was it considered a strong legal basis for appeal. The Authority's decision and NQCC's appeal relied exclusively on the Great Barrier Reef Marine Park Act 1975 (Cth), an Act that precedes World Heritage listing of the Marine Park by almost a decade.
The Tribunal upheld the decision of the Authority to issue the permit to NBH subject to minor alterations to the permit requirements. Permitted works in the Marine Park included a dredged harbour, breakwalls and ferry landing. A permit issued by the Environmental Protection Agency (the EPA) in February also allowed the portion of the development proposal located in the State Marine Park to proceed. Those works included a canal estate, residential and commercial development and reclamation of an area of the State Marine Park.
This article examines the manner in which the Tribunal developed and misapplied the degraded site concept in its fact finding and therefore provided a basis for developers, including governments, to justify purposeful, incremental degradation of land. The effect of the Tribunal's judgment is to move degraded land, including World Heritage properties, outside of standard land management and environmental protection regulatory regimes.
The article then explores some of the broader implications of these failings, particularly with reference to other coastal developments and incremental degradation. In the North Queensland region alone, the degraded site argument has been used by developers and decision makers in relation to East Trinity, Port Hinchinbrook, Dungeness and Keswick Island, amongst others.
The Nelly Bay location was the subject of a development process that began in the 1970s. Work commenced on the 30 hectare site in 1989. The development included a massive resort, harbour and canal estate. The site included a portion of the Marine Park, the Townsville-Whitsunday State Marine Park and a headland on Magnetic Island, also part of the Great Barrier Reef World Heritage Area. Nelly Bay is a fringing reef bay, and contains corals that the Authority has deemed of the 'highest conservation value'.
Work on the site ceased in September 1990 and the developer was placed in receivership in December that year. By that stage the Bright Point headland had been destroyed and the main breakwall and finger breakwall, both within the Marine Park and occupying approximately one quarter of Nelly Bay, were mostly completed.
At Nelly Bay, all of the degradation occurred as a result of permissions issued in the 1980s by the Queensland Government and the Authority.[2] Following the collapse of the development in the early 1990s, the site remained untouched. The Authority relied on a legal and political fiction in describing the site during that period as a 'work in progress'. They did so in order to avoid taking any action under their legislation or the World Heritage Convention to rehabilitate the site and to prevent a permanent alteration of the Marine Park boundaries.[3] Arguing that the site was an active construction site[4] was an obvious fiction; there was no development proposal for the site after the collapse of the developers Linkon in 1990 until the Queensland Government initiated a search for a developer in 1993 to 'complete the development',[5] culminating in a developer being selected in 1994.[6] Approvals to make Nelly Bay a construction site were not given for another five years.
The Authority was in an invidious position of its own making. It had failed to secure rehabilitation funds from the developer despite full rehabilitation insurance being a condition of its approval for works.[7] Thus, when the developer went into receivership in 1990, the Authority had no funds with which to rehabilitate the site. Despite numerous suggestions to the Authority during the period up to 1995, and despite the clear provision in the World Heritage Convention that rehabilitation is one of the primary obligations for signatories under the Convention,[8] there was never any indication that rehabilitation was on the Authority's agenda.
As the Authority made clear in correspondence during that period, it wanted the development to proceed; it did not want to take responsibility for a site that it had played a part in degrading. For instance, in a letter from the Authority to the Townsville Port Authority after the Magnetic Quays project had collapsed and prior to any new development proposal, the Authority made the statement-'the [Authority] supports the Magnetic Quays project reaching completion'.[9]
The Authority justified its refusal to consider rehabilitation on the basis that rehabilitation would cause too much additional damage to the Marine Park. This has been the position of the Authority since the original Magnetic Quays collapse. The basis for that position is a comment made by the then Chair of the Authority, Graham Kelleher, to F.J. Whitehouse in his 1992 review of the Magnetic Quays development. Whitehouse accepted Kelleher's claim without calling for or providing evidence.[10] Interestingly, a freedom of information request from the North Queensland Conservation Council to the Authority for any documents associated with that position did not produce an assessment, a report, a study, any scientific correspondence, nor a record of any phone conversations.[11] It appears that the comment was not a considered opinion of the Authority at all, but an off-the-cuff position of the Chair made during an inquiry into the Authority as a result of a collapsed development. The statement has assumed the status of fact, despite the absence of evidence supporting it, and was a stated position of the Authority during the AAT case, relied on and adopted by the AAT itself.
Finally, the Authority made it clear, long before any permits or approvals were issued, that it would actively dissuade those interested in rehabilitation. The Authority indicated that an Environmental Impact Assessment (EIA) would be required for any rehabilitation proposal (less than two years later they argued that no EIA should be required for the proposed Nelly Bay project itself);[12] and that the likely cost of that EIA would be over $1 million-five times the estimated cost of the EIA completed at Nelly Bay three years later.[13]
It was in this context that the abandoned and degraded site at Nelly Bay became the critical component in the Tribunal case that followed.
The degraded site argument as used by the Authority and the Tribunal maintained that a degraded site, regardless of how that condition occurred, should receive a lower standard of assessment and treatment, even if the degradation occurred directly as a result of previous permissions granted by the bodies charged with subsequent assessments.
In this view, degradation fundamentally changes the analysis and assessment that the site undergoes and effectively ensures that the site is only fit for further development. Each subsequent degradation then became a further argument to allow greater degradation. It is both a problem of permitting incremental destruction and of a mind-set that believes damaged land cannot be repaired.
The degraded site argument, as it has been used at Nelly Bay and elsewhere goes well beyond considering the condition of the site as part of the decision-making process. The degradation assumes a significance far greater than any other factor in making determinations and decisions. One would be hard pressed to find an example of a natural value holding such sway in a judicial process, particularly in the absence of any legal grounds for doing so. Not only is there no such fundamental protection in law for any environmental value,[14] other values, such as aesthetics and wilderness-which represent perhaps the closest corollary to degradation-have almost no legal or planning standing at all.
The Tribunal not only failed to connect the degradation to government and Authority approvals, but also failed to give any recognition to rehabilitation, either as a legal concept under the assessment of alternatives or of World Heritage or simply as a legitimate management tool.
The entire approach of the Marine Park Authority and the Tribunal to the degraded site, in fact, implicitly encourages incremental developments. The legal structure, particularly the multi-jurisdictional nature of approvals in Queensland further encourages degradation. Approvals are frequently given at one level of government before decisions are taken at other levels. Those approvals may result in site works. Degradation of a site then becomes the justification for further degradation. The cause of the degradation and the values that have been degraded have no weight at all.
Consideration of development proposals on a degraded site do involve different analyses and considerations. For instance, the extent to which a site can be rehabilitated is a relevant matter as is the current ecological functioning of the site. As NQCC pointed out in a lengthy submission to the Authority, degradation is a relevant not a determinative factor in assessing a permit application.[15]
The stated objective of the development proposal changed minimally until the Tribunal judgment. The proponent's most commonly stated objective was the need for a safe harbour. In the Environment Assessment Report of May 1999, the purpose was 'to provide a financially viable safe harbour for Magnetic Island utilising the site and works from the Magnetic Quays development'.[16] A more accurate description of the purpose would include reference to the commercial and residential developments planned for those areas to be reclaimed. The Tribunal found that the underlying purpose was to rehabilitate a degraded site (para 193). That finding ignores the purpose articulated in the report but is derived from a comment in that document: '[t]here has also been considerable political and community pressure for something to happen on the site, which has been considered a derelict construction site by some' (at para 192). The Tribunal further found that some form of rehabilitation would be required, even if the harbour were constructed elsewhere.[17] 'Building a safe harbour and a residential and commercial development is just one means of achieving that purpose' (para 193).
The Tribunal appeared to conflate rehabilitation with 'doing something'. The Oxford English Dictionary defines 'rehabilitate' as ' ... 2. To restore to a previous condition'. The effect of the development on this portion of the Marine Park was to convert a 'degraded site' capable of rehabilitation into a dredged boat harbour. The remainder of the site, that part outside the Marine Park, was to become commercial and residential buildings, parking, roads, a helipad, a boat ramp and some public open space.
The finding of fact does not conform to actual activities being undertaken on the site, such as dredging and harbour construction. Ultimately, the Tribunal ascribes a motive to the Authority-rehabilitation-that even the Authority has never claimed.
It is clearly the strength of the degraded site perspective that underpins this finding. The effect is to distort the development and the actions of the Authority in relation to the development. Of the various motives that one might ascribe to the Authority, rehabilitation of the site could not legitimately be one of them.
This finding of fact effectively rendered the legal arguments nugatory. If all activities on site are for the purpose of rehabilitation-including dredging, construction of breakwalls, revocation of a portion of the Marine Park and the construction of canals - then there cannot be an improper purpose in law. The ultra vires arguments put forward by NQCC, both in relation to revetment walls and the 'finger' breakwall, were consequently dismissed. All works became de facto acts of rehabilitation.
The importance of the degraded site argument and the related finding of purpose play out in a number of ways. For instance, the revetment wall, which secured reclaimed land in the State Marine Park but intruded into the Marine Park, was deemed not to be ultra vires because its purpose was to prevent erosion (para 132). The decision that the 'finger' breakwall, which removed a portion of the Marine Park without going through a formal revocation, was to be 'taken as it is' and not be subject to review, clearly derived from a view that the degradation of the site would not be revisited by the Tribunal (para 141).
The clearest impact of the Tribunal's finding of fact, however, was in its assessment of prudent and feasible alternatives to the proposed development.
Section 30 of the Australian Heritage Commission Act 1975 (Cth) requires that, if an action is likely to have an adverse impact on an area listed on the register of the National Estate, prudent and feasible alternatives to the proposed action must be considered.[18]
The NQCC sought to have the Tribunal recognise various American authorities in relation to prudent and feasible alternatives. Alternatives analysis in Australian courts has been particularly thin. In the United States, the assessment of alternatives is considered to be at the heart of environmental impact analysis.[19] The nature of the analysis is far more systematic and rigorous than the analysis traditionally seen in Australia.[20]
To some degree the NQCC succeeded.
It was not contested in this case that the site was part of an area on the Register of the National Estate and that the development was likely to cause an adverse impact on that place. The Tribunal accepted that position (para 179).
The Tribunal correctly noted that the Authority could refuse the application under the Great Barrier Reef Marine Park Act 1975 (Cth) because prudent and feasible alternatives were available, but the Tribunal also noted that it could not direct that an alternative be implemented (para 189).
The Tribunal, nonetheless, took a broad view of alternatives. Given that an alternative consistent with any relevant laws must be considered, it seems to us that it would be too narrow an approach to find that the only alternatives that need to be considered are those within the power of the Commonwealth authority required to consider the feasible and prudent alternatives. There is no such limitation in s 30(3) [of the Australian Heritage Commission Act (para 188)]. The alternatives are not at large, however ... [and] must be determined by reference to the purpose of the course of action proposed. That purpose cannot be circumscribed by the proponent of the action so that a consideration of the alternatives is limited to an examination of alternative means of achieving the proponent's purpose. [para 190 - emphasis added]
It is here that the Tribunal proceeds to define the general purpose of the development as rehabilitation (para 193) and to virtually ignore all previous discussions of alternatives.[21]
The effect of the Tribunal's definition is easily tracked. Rehabilitation is a site specific purpose. In effect, the Tribunal's definition of the purpose of the development as 'rehabilitation' 'circumscribes' the scope of the alternatives analysis in exactly the manner the Tribunal has deemed inappropriate. The purpose is ostensibly broad but severely limits the scope of available alternatives. It is a definition that ultimately subjects us again to the degraded site argument. So, for example, if the purpose was to build a canal estate or a safe harbour, an entirely different-and not site specific-analysis would be necessary.
The question of what would happen to the 'degraded site' is a relevant matter in the analysis of alternatives, but not at the heart of the decision-making process. The fact that the degradation occurred and remained because of the decisions of the Authority could be equally relevant. If there are legal requirements mandating its rehabilitation regardless of the Tribunal's decision and the development proposal, then that too is a relevant matter. The same is true even if there is no legal requirement to rehabilitate the site.
The Tribunal considers three alternatives: no project (which they dismiss because the site cannot be left in its current degraded state),[22] full rehabilitation and partial rehabilitation. The nature of those alternatives is never articulated by the Tribunal; in other words, they do not actually consider any specific rehabilitation proposals for Nelly Bay. The Tribunal's considerations are further limited by the finding that there is no onus on the Authority or the Tribunal to seek out alternatives or make investigations of alternatives (paras 204-205). 'It might be otherwise' the Tribunal adds 'if Nelly Bay were a pristine site but its being a degraded site limits the choices that are reasonably open to us' (para 205).
Once again, the degraded site argument - not legal requirements -dictates the findings of the Tribunal.
Interestingly, the position of the Tribunal is contrary to the position adopted by the Authority in its Tribunal case against Dalhold Nickel.[23] In that case the Authority took the position 'that it was for the applicant to demonstrate that there was not a prudent and feasible alternative rather than for the Authority to satisfy itself that there was an alternative'.[24] In other words, the Authority argued that the onus of proof rested on the proponents.
The Tribunal dismisses both full and partial rehabilitation on the basis of the likely environmental harm that would result from the removal of the breakwalls-an impact never assessed or considered by the Authority nor substantiated by any evidence.
The judgment of the Tribunal clearly has implications for coastal development conflicts in the future. Its impact on World Heritage protection may not be significant as World Heritage protection now rests under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which, unlike the World Heritage Convention, has no rehabilitation requirement.
In its use of the degraded site argument, the Tribunal relied on an extra-legal concept. In fact, in adopting and relying on the degraded site argument, the Tribunal creates incentives for pre-emptive degradation to occur.
Its decision must give comfort to those who justify development of a site on the basis that a site is degraded, regardless of the source of the degradation. This is particularly true in light of the manner in which development approvals are given along the Queensland coast. Notwithstanding the Tribunal's claim that coastal development permit processes are 'integrated', the multi-jurisdictional nature of coastal development proposals in Queensland inevitably fosters an incremental, piecemeal and ad hoc approach to approvals and permits. Keswick Island, Port Hinchinbrook, Dungeness and Nelly Bay are but a few examples of development proposals that secured permits or approvals at one level of government before proceeding to seek approval at the next. Almost always, those initial approvals are followed by preliminary or partial site works.[25] In general, the approvals do not lapse, even if the environmental protection laws become more stringent.
The initial approvals and the works become one of the bases to argue for further approvals. This is a chronic reality of coastal development in Queensland.
Secondly, the Tribunal's definition and view of rehabilitation is not only untenable, but is contrary to best practice models as well as the World Heritage Convention itself. The dismissal by both the Authority and the Tribunal of rehabilitation as a management tool gives some indication of how far we have to go to develop a coastal management ethos that values the environment as much as development.
Finally, the Tribunal's judgment ensures that the analysis of feasible and prudent alternatives will continue to be nothing more than a procedural hoop rather than a substantive and fundamental analysis attached to environmental assessment.
The judgment undermines the entire s 30 analysis under the Australian Heritage Commission Act.[26] If s 30 survives current legislative moves, one can only hope that it is strengthened in the process.[27]
Certainly, the case does not provide a satisfactory basis for dealing with contentious coastal development proposals that continue to plague the Great Barrier Reef World Heritage Area.
The Tribunal's decision makes clear that this traditional way of doing business in Queensland will remain in place for some time and points to an urgent need for planning and legislative reform.[28]
[*] Jeremy Tager trained and practised as a lawyer in the United States. He is currently working for Greenpeace on their Genetic Engineering campaign and at the
time of the AAT hearing was the Coordinator of the
North Queensland Conservation Council.
© 2003 Jeremy Tager (text)
© 2003 John Lynch (cartoon)
[1] Convention C01.cerning the Protection of the World Cultural and Natural Heritage art 4 (entered into force16 November 1972).
[2] The comment by the Tribunal (at para 193 of the decision) that 'Circumstances beyond the control of the current decision makers, proponent and developer have come about to create a degraded site that is thought desirable to rehabilitate in some way or other' is simply incorrect in relation to the Great Barrier Reef Marine Park Authority. While the Authority cannot be responsible for Linkon going into receivership, the original approvals, the failure to secure rehabilitation funds and the failure to conduct any cost-benefit analysis for the project are all directly attributable to the 'current decision-makers'.
[3] The Authority's legal advice was clear that breakwalls could not remain attached to the mainland without effecting a change in the boundaries of the Marine Park. That change could not legally occur without a formal revocation process, which never occurred. The breakwalls needed to be freestanding islands.
[4] See for example the Authority's comments to the Nelly Bay Harbour Public Draft EIS, 23 November 1995: 'The Great Barrier Reef Marine Park boundary has been temporarily interrupted for construction purposes only and no permanent change is permissible'
[5] Completion of the Development of Magnetic Quay - Nelly Bay, Expression of Interest, Mcintyre and Associates, 1992.
[6] The preferred developer, NBH, selected in 1994 was not the developer when approvals were finally granted in 1999. The Queensland State Government had become the developer and Nelly Bay Harbour the recipient of the contract for works with a guaranteed income and a guarantee from the State Government to indemnity any investors in the site.
[7] See F J Whitehouse, Review of the Magnetic Island Marine Development (1993).
[8] Convention for the Protection of the World Cultural and Natural Heritage art IV.
[9] Mike Bugler, Senior Project Manager, Environmental Impact Manager, Great Barrier Reef Marine Park Authority, to Barry Holden, Townsville Port Authority, 15 January 1993 -the letter was written in response to the Johnstone report (L L Johnstone, Picnic Bay Jetty Stage 1, Study of Improved Access for Medical Evacuation of the Disabled (1992)) and indicated that the Authority would not support an upgrade of the Picnic Bay jetty as an alternative to completion of Nelly Bay (see also under heading 'Discussion of prudent and feasible alternatives'); see also Letter from the Authority Chair to Department of Arts, Sports, Environment and Territories, 17 September 1992: 'as you may know the Queensland Government is actually pursuing further investors to allow the project to be completed. The Authority fully supports these actions.'
[10] Whitehouse, above, n 7.
[11] NQCCFOI 1998.
[12] EPA Briefing note, December 1994.
[13] The total cost of the Draft, Supplementary and Final EIS has never been revealed, although it is likely to be significantly higher than the original estimates.
[14] Under the new federal environment legislation, the Environment Protection and Biodiversity Conservation Act 1999,values, such as the values of a World Heritage site, are protected to the extent that proposals that threaten those values may be required to undertake some level of impact assessment under the Act.
[15] NQCC, submission to Great Barrier Reef Marine Park Authority (1999).
[16] Environment Assessment Report: Nelly Bay Harbour Development, Magnetic Island NQ, May 1999, Environment Australia, Queensland Environment Protection Agency.
[17] The AAT does not cite any legal requirement to rehabilitate the site should this development proposal lapse. Presumably, the reference is to the likely public pressure to 'do something' noted by Environment Australia in their EAR. Any legal argument relating to doing something would probably rest on the objects clause ins 5 of the Great Barrier Reef Marine Park Authority Act: 'The object of this Act is to make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region in accordance with the provisions of this Act.'
[18] Australian Heritage Commission Act, s 30(2) reads in part:an authority of the Commonwealth shall not take any action that adversely affects, as part of the national estate, a place that is in the Register unless the authority is satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken.
[19] See, eg, Citizen of Goleta Valley v Board of Supervisors of Santa Barbara County and Others (1990) 52 Cal. 3d 553.
[20] In many instances in Australia, the decision-maker must only be satisfied that alternatives have been considered. In the United States, that does not suffice and an alternatives analysis is measured against comprehensive and frequently strict criteria. See, eg, guidelines under the California Environmental Quality Act.
[21] See, eg, Final Environmental Impact Report (1999) 13-15.
[22] Seen 17.
[23] Queensland Nickel Management Pty Ltd (formerly Dallhold Nickel Management Pty Ltd) v Great Barrier Reef Marine Park Authority [1992] AATA 239; (1992) 16 AAR 319; (1992) 28 ALD 368.
[24] S Hillman, 'The Queensland Nickel Management Appeal: A Case Study of the Appeals Process', Great Barrier Reef Marine Park Authority, (1995) 22.
[25] The Great Barrier Reef Marine Park Authority has recently made a submission (2002) to a Senate Inquiry in urban water issues that makes reference to at least several dozen of these staged developments and points out some of the difficulties created by current multi-jurisdictional development approval regimes.
[26] Current proposals for a new federal Heritage Act under the Environment Protection and Biodiversity Conservation Act have removed the s 30 requirement.
[27] New Heritage legislation designed to sit under the Environment Protection and Biodiversity Conservation Act has been pending now for several years. The most recent draft Bill was withdrawn during the July 2003 sittings of parliament. Whether 'prudent and feasible alternatives will be retained and in what fashion is still not known.
[28] This history was the rationale, in part, for the Coastal Protection and Management Act (Qld), which came into effect in 1995. It remains to be seen whether the State and regional plans produced under that Act prevent the traditional problems of coastal development in Queensland.
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