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Conservation Council of SA Inc v. Development Assessment Commission and Tuna Boat Owners Assoc of SA

Country/Territory
Australia
Type of court
Others
Date
Dec 16, 1999
Source
UNEP, InforMEA
Court name
Environmental Resources and Development Court of South Australia
Judge
Trenorden
Reference number
SA ERDC 86
Language
English
Subject
Fisheries
Keyword
Land-use planning Precautionary principle Marine fisheries Fishing permit Fishing authorization
Abstract
These appeals were in respect of a proposal to establish tuna farms in the waters of Louth Bay in Spencer Gulf. The first question for determination in these matters was a jurisdictional question. The second respondent in each case (who is the applicant for consent) asserted that its proposal to farm tuna within a defined area in waters of Louth Bay, Spencer Gulf, did not constitute "development" within the meaning of the Development Act 1993. On the other hand, the relevant authority, namely the Development Assessment Commission, asserted that the proposal was "development" on the basis that it was both "building work" and "a change in the use of land". In accordance with the definition of "development" in Section 4(1) of the Development Act, the proposal would constitute development if it was either "building work" or "a change in the use of land". The court started by analyzing whether the Proposal was "Building Work". The relevant definition of "building work" in the Development Act was as follows:- "..... work or activity in the nature of- (a) the construction, demolition or removal of a building;" Each tuna farm would have comprised six pontoons moored in place, from which a net was suspended. The definition of "building" included a pontoon permanently moored to land. Assuming that the pontoon which was the floating "base" of the tuna farm, was not permanently moored to land, the question was whether it was a structure and thus within the definition of "building", because any structure which is temporary and moveable constituted a "building". However, the court did not have to decide finally whether each pontoon constituted a "building" within the meaning of the Development Act. If the pontoons were "buildings", each would constitute a Class 10 building according to 1.3 of the Building Code of Australia. Building work in relation to a Class 10 building that was not within the area of a council was not development. Secondly, the court had to decide whether the Proposal constituted a Change in Use of the Land. The applicant submitted that the proposal in each case did not constitute a change of use of land. The issue was whether what was proposed was a use of "land". The Development Act in Section 4(1) gave the following meaning to the word "land": "(a) land as a physical entity, including land covered with water and including any building on, or fixture to, the land;” In practical terms, the seabed beneath the farm pontoon could not be used while the pontoon was moored in place. Debris, namely faecal matter and uneaten food which would drift down to the sea-floor would effectively preclude any other use of the land below the farm pontoon. If the development was to proceed, the farm operator would be using the land beneath the pontoon. Thus, the development would result in a change of use of land, and was "development" within the meaning of the Development Act. The court therefore went on to assess the development. A number of issues were addressed in the hearing of the matter including ecological sustainability, impacts on wildlife and marine predators, damage to the seabed and sensitive ecological areas, conservation of the water quality, marine flora, fauna and ecosystems, visual amenity and the effect on sites used for recreational activities. The court applied the principle of “Ecologically Sustainable Development” when assessing the proposed development against the relevant provisions of the appropriate Development Plan. In this connection, guiding principles had been established. One of the guiding principles was that known as the "precautionary principle", which was analyzed by the court in detail including its history. The court also applied the principle of inter-generational equity. In conclusion, the court decided that the appeals should be upheld and the decision of the Development Assessment Commission in each matter was reversed.
Full text
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References

Cites

Convention for the Conservation of Southern Bluefin Tuna

Treaty | Multilateral | Canberra |

Keyword: Data collection/reporting, Migratory species, Marine fishes, Marine resources management, Fishery management and conservation, Protected animal species, Institution, Total allowable catch, Dispute settlement, Enforcement/compliance, Research

Source: IUCN (ID: TRE-001251)