Pidun v Dac & Struck & Minister of Agriculture, Food & Fisheries No ERD-02-544, ERD-02-581 [2004] SAERDC 10 (4 February 2004)

Last Updated: 8 February 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering, Commissioner Mosel and Commissioner Blackburn

Hearing

23/09/2003 to 25/09/2003, 29/09/2003 to 02/10/2003, 29/01/2004.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development applications for two 10 hectare, oyster farms - coastal waters - northern Spencer Gulf - provisional development plan consent granted subject to conditions by Development Assessment Commission (DAC) - third party appeal - role of the Court considered - provisions of the Aquaculture Act 2001 a relevant consideration - ecologically sustainable development, environmental damage, use of marine and coastal resources and visual amenity the pricniple planning issues - both proposals in adequate compliance with the provisions dealing with ecologically sustainable development and the protection of the marine environment - proposals incapable of striking the appropriate balance in respect of those provisions which seek equity in the use of marine resources and compatability with the visual environment - conflict attributed in large part to the northern most site - southern most site by itself strikes the appropriate balance - appeal in respect of Development Application No 010/0049/99 allowed - decision of the DAC in respect of Development Application No 010/0050/99 varied by amendment to Condition 1 and the inclusion of two new conditions.

• Environment Resources & Development Court Act 1993 ;
• Aquaculture Act 2001 ;
• Harbours & Navigation Act 1993 , referred to.
• Pt Vincent Progress Association & Ors v Development Assessment Commission and D Colmion Pty Ltd [1999] EDLR 160 ;
• Tuna Boat Owners Association of SA Inc v Development Assessment Commission and Anor[2002] SASC 238 , considered.

Representation

Appellant: FREDERICK PIDUN
Counsel: MR K TREDREA - Solicitors: NORMAN WATERHOUSE

Respondent: DEVELOPMENT ASSESSMENT COMMISSION
Counsel: MS R DANIELL - Solicitors: CROWN SOLICITOR'S OFFICE

Respondent: COLIN STRUCK
Counsel: MR W RUDD - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: MINISTER OF AGRICULTURE, FOOD & FISHERIES
Counsel: MS R DANIELL - Solicitors: CROWN SOLICITOR'S OFFICE

ERD-02-544, ERD-02-581

Judgment No. [2004] SAERDC 10

4 February 2004

FREDERICK PIDUN

v

DEVELOPMENT ASSESSMENT COMMISSION

and

COLIN STRUCK

and

MINISTER OF AGRICULTURE, FOOD & FISHERIES

(ERDC No: 544 and 581 of 2002)

[2004] SAERDC 10

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. These appeals arise from two decisions made on 25 July 2003 by the Development Assessment Commission in respect of Development Applications 010/0049/99 and 010/0050/99, which applications sought Provisional Development Plan Consent to hold and cultivate oysters. Each application defines a 10-hectare site (herein after called the "subject sites") within which the proposed developments would be placed. The subject sites are in the shallow waters of an embayment known as "One Shack Bay" on the western side of the northern Spencer Gulf. The Development Assessment Commission processed the applications as Category 3 developments. Several representations, all in the nature of objections, were received in respect of both applications. In due course the Development Assessment Commission granted Provisional Development Plan Consent to Mr Colin Struck to establish the proposed "oyster farm" subject, in each case, to 11 conditions. Mr Frederick Pidun, being a person who submitted a representation, was aggrieved by the decisions and appealed to this Court.

2. There being no settlement reached at the conference held between the parties pursuant to s16 of the Environment Resource and Development Court Act 1993 the matter proceeded to hearing. The Court sat in Whyalla and Adelaide. In the company of the parties, the Court viewed the subject sites and nearby land and coastal development. The Court alone viewed boat-launching facilities several kilometres south at Point Lowly. At the hearing Mr Tredrea, Ms Daniel and Mr Rudd all of counsel appeared for Mr Pidun, the Development Assessment Commission and Mr Struck, respectively. The Court received several exhibits and oral evidence from the following:

•	Mr Struck (appellant)
•	Mr Reilly (environmentally concerned citizen)
•	Mr Pidun
•	Mr Edwards (professional fisherman)
•	Mr Organ (resident of Douglas Point South)
•	Mr Payne (Manager, Environment and Planning - City of Whyalla)
•	Mr Turner (Oyster Farmer)
•	Dr Shepherd (Environmental Scientist - retired)
•	Mrs Harbison (Environmental Consultant - retired)
•	Ms Boxall (Marine Research Scientist)
•	Dr Deering (Marine Biologist)
•	Mr Holmes (Consulting Planner)

BACKGROUND

3. The development applications follow a previous attempt by Mr Struck to establish an oyster farm. In 1998 he selected an area within the Douglas Management Zone, which zone is identified in the Spencer Gulf Aquaculture Management Plan 1996 (SGAMP). The SGAMP, produced to the Court as Exhibit F, is a statement of government policy on aquaculture development in the Spencer Gulf. Amongst other things it identifies management zones and sets out the goals and management policies for the undertaking of aquaculture in each zone. The Douglas Management Zone is about 5 kilometres north of the subject sites and is one of four zones in the SGAMP. The others are as follows: Fitzgerald Bay Management Zone (about 5 kilometres south of the subject sites), Patterson Management Zone (about 30 kilometres north of the subject sites) and the Augusta Zone (within which the subject sites are situated), which zone constitutes the remainder of the area of coastal water covered by the SGAMP. The management policies for the Augusta Zone generally proscribe the issue of the relevant license to undertake aquaculture.

4. The Development Assessment Commission granted consent to Mr Struck's earlier proposals. However, we were informed that they were abandoned after the Department of Defence indicated that Mr Struck's proposed activities would interfere with the operations of the El Alamein Training Reserve. Mr Struck then entered discussions with the Minister responsible for the issue of a license pursuant to the Fisheries Act 1982 with the view to finding an alternative location within which he could pursue his aquaculture interests. On 21 August 1999 some three months after the lodgement of Mr Struck's applications in respect of the subject sites, the Director of PIRSA Fisheries decided (as delegate of the relevant Minister) to permit aquaculture within that part of the Augusta Zone delineated by the subject sites and to abolish the Douglas Management Zone. The minute which recommends the Minister's delegate to take this course of action was prepared by Dr Deering (Exhibit F).

5. These circumstances prompted submissions from Mr Tredrea to the effect that Mr Deering's involvement in the amendments to the SGAMP bespeaks his assessment of the proposed development forwarded to the Development Assessment Commission under the hand of Mr Nightingale (Exhibit R1 & R2). We think the circumstances are unusual and have had regard to Mr Tredrea's submissions.

THE PROPOSED DEVELOPMENT

6. The subject sites lie within the shallow waters of 'One Shack Bay'. They are about 46 kilometres north east of Whyalla and several kilometres north of Fitzgerald Bay within which there are several (finfish) aquaculture ventures.

7. The disposition of the subject sites is shown on the plan attached. This plan is an adaption of Exhibit R5. It depicts both sites (for which accurate coordinates are provided in Exhibit C), the approximate position of Mr Pidun's residence and the general topographic features of the near hinterland including the principal access road to this area of the coastline.

8. The subject sites are rhomboidal in shape each having dimensions in excess of 500m x 200m. The northern site (Development Application No. 010/0049/99) is between 160m and 500m from high water mark. The southern site (Development Application No. 010/0050/99) is about 300m from high water mark.

9. The adjustable long-line method is to be used to cultivate the oysters. Mr Struck told the Court that, although the three line version of the long line arrangement is identified in the applications, he may employ the four line version. We do not consider the use of the four line version changes, in any material way, the nature of the development. However, we note that the use of the four line version may reduce the amount of "trampling" on the sea grass.

10. Mr Turner who, among other things, supplies and constructs the long-line facilities, told the Court that each fully developed 10ha site will need about 5,000 posts. Each post is about 50-75m in diameter, and 1.8m long. They are put in place using high pressure water jets. After insertion, each will protrude about 1.2m above the sea bed. The oysters are cultivated in nylon mesh baskets which are suspended from the long-lines which are in turn supported by each post.

11. The Court was told by Mr Turner that a fully developed 10ha site will require, at times, 4-5 people to operate and maintain the business. One or possibly two people will walk along the long-lines to either retrieve or replace each basket. The remaining people remain on the flat-bottom vessel. The Court accepts that Mr Struck will adopt similar operational methods. Notwithstanding the details contained in Exhibits R1 and R2, the proposal before the Court does not include on-shore facilities usually required to support oyster farming.

THE LOCALITY

12. Mr Holmes was the only planning expert before the Court. He defined a "locality" for the purpose of his evidence thus: "the area east of the Army Training Area fencing and from Douglas Point South in the north to Crag Point in the south and for a distance of approximately 1km seaward". His locality is more particularly depicted in Exhibit A.

13. We agree with Mr Holmes' locality, and with his description of the features of particular importance in these proceedings. For convenience, we have paraphrased his opinions and observations as follows:

"The locality is flanked by the El Alamein Army Training Area to the west and Spencer Gulf to the east. Only a narrow coastal strip is accessible by the public (typically 100-300m wide) with the remaining hinterland restricted to public access. Public access to the coastal strip terminates 3km north of Douglas Point South"

"The coastal road is unsealed and serves one shack only in the subject locality. A further 30 or so shacks are located in three small groupings north of Douglas Point South, the first being on the north east coast of the Douglas Point South headland, the second on the south east coast south of Douglas Point and the third to the north of Douglas Point.

The land in the subject locality is generally the flat coastal strip adjacent to the Gulf. Some mangroves and mud flats and a low dune system exist and a low open woodland is evident above high water mark. A pebble moraine has been deposited over time parallel to the coastline.

The land rises to the west, inside the Army Training Area to the Douglas Hills, achieving a height of 150-200m.

Crag Point is an area of rising land adjacent to the coast. The coastal road has some elevation as it rounds this point, providing views of the subject locality.

Douglas Point South is a smaller headland of rising land, which the coastal road does not traverse."

14. Mr Holmes describes the locality as a pleasant visual environment but not one of high visual or scenic value. We agree. However, having described the visual environment in such terms we do not think that our views are at odds with the particular enjoyment Mr Pidun, whose dwelling has commanding views from his house over the embayment, receives from living in the locality or for that matter the enjoyment received by other people who live in the near vicinity and use the local waters for a range of recreational pursuits.

15. We do not think Mr Holmes' view to the effect that the locality "does not provide formalised tourist routes or walking trails from which to view the proposed leases" provides the full picture. We heard evidence that the Whyalla Council promotes the sole access road as a "scenic drive" (Exhibit A7). Furthermore, we were told by Mr Pidun and Mr Organ that the beach and shallow waters were used on regular occasions for a variety of recreational uses and we observed on the view some formal and informal campsites between the beach and the access roads. That said, we do not conclude that the One Shack Bay locality constitutes an area of high public use.

OYSTER PRODUCTION IN THE REGION - THE ROLE OF THE COURT

16. During the course of the hearing the Court heard of many issues that trespassed beyond the boundary of the locality. It was told of particular and unique features of the Upper Spencer Gulf region by Mr Reilly. It heard conflicting evidence about the ability of the region to provide and sustain oyster production and of several other areas in the region specifically identified for oyster farming. We were also informed of the general constraints to the growing of oysters within 20km of One Shack Bay.

17. The role of the Court is to consider the applications before it. Whether they are sound or unsound will be determined on their merits when properly assessed against the relevant provisions of the Development Plan. We recognise that the relevant Development Plan - to which we will make reference shortly - supports the introduction of aquaculture within coastal waters. We heard evidence that some areas may be more suitable than others. The evidence indicates that there are many reasons which, when combined, determine the suitability of a site for oyster farming. However, we do not think that these provisions, when properly construed, direct a planning authority or this Court to consider in an assessment of a proposal for aquaculture whether there may be other areas in which it might be more or less suitably located. We listened very carefully to the evidence of Mr Holmes on this issue and we think he is in error in a building into his assessment a concept of "comparative suitability" of different areas for oyster cultivation.

IMPLEMENTATION OF THE PROPOSED DEVELOPMENT

18. In the event that the developments proceed it will be necessary to comply with a number of conditions and operate within a number of constraints. There are first the conditions imposed on the Provisional Development Plan Consent by the Development Assessment Commission. There are eleven conditions in all. There is no need to refer to all of them. We paraphrase those conditions of most significance thus:

• Require structures, equipment buoys and the like to be of a colour that blends with the natural features of the locality;

• Require the subject sites to be marked in accordance with the Harbours and Navigation Act 1993 and the Fisheries Act 1982;

• Prevent structures (other than navigational aids) to protrude more than 100mm above the water at mean neap tide; and

• Prevent the cleaning and structures and the processing of stock to be undertaken on the subject sites.

19. Secondly, there is the matter of licensing. Dr Deering told the Court that Mr Struck will need to apply for a licence under Part 7 of the Aquaculture Act 2001, which licence will be generally in the form of the draft licence tendered as Exhibit R3. Included in the licence will be detailed and wide ranging operating standards intended to regulate the environmental impacts of oyster farming. It will also include a requirement to carry out a monitoring program covering several aspects of farm management, water quality and a benthic assessment (by video). We note the power of the Minister to suspend or cancel an aquaculture licence in s57 of the Aquaculture Act 2001.

20. Finally there is the matter of a lease for the subject sites. According to Dr Deering, the subject sites are not within an aquaculture zone. In evidence Dr Deering told the Court that, in the event of the proposed developments proceeding, they will be the subject of pilot leases pursuant to Division 2 of the Aquaculture Act 2001. We note that s29 establishes the term of a pilot lease to be 12 months, renewable to a maximum of 3 years. We understand from Dr Deering's evidence there are particular performance standards - including rates of development - that are required to be met for the lease to be renewed or for progression to a development lease. Dr Deering distinguished the performance standards in respect of a pilot lease from the conditions of a licence issued pursuant to Part 7 inasmuch as the former has, as its prime concern, the efficient use of scarce (marine) resources.

21. The Court also notes the provisions of Division 6 of the Aquaculture Act 2001. Section 45 provides the lessee (unless otherwise provided for in the lease) with exclusive occupation of the marked-off area of the lease. Section 46 provides a range of penalties that apply to persons who breach s45. Thus we place little weight on Mr Struck's evidence to the effect that he is willing to allow shared use of the leased areas.

22. We think that aforementioned provisions of the Aquaculture Act 2001 are a relevant consideration in our assessment of the proposed developments. Generally speaking, the history of oyster farming in South Australia is now sufficiently extensive for the likely impacts upon the seagrasses and the environment generally to be foreseeable. Furthermore the long line method of oyster cultivation has developed a good environmental reputation. However, these results may not be adequately foreseeable with respect to any particular site. Accordingly an adaptive management programme has been developed and adopted. The adaptive management approach is found in both the licence and lease to be issued and confirmed in the comments which fell from the Full Court of the Supreme Court in Tuna Boat Owners Association of SA Inc v Development Assessment Commission and Another [2000] SASC 238; [2002] 77 SASR 369.

23. We have had regard to the adaptive management programme and to the management opportunity it presents.

24. We have also taken into account the objects of the Aquaculture Act 2001, the aforementioned provisions that enable the Minister to suspend or cancel a licence (s57) and the provisions of s53, which allows a licence to be varied to, among other things, "prevent or mitigate significant environmental harm or the risk of significant environmental harm".

THE DEVELOPMENT PLAN, ITS RELEVANT PROVISIONS, EVIDENCE AND ASSESSMENT

25. The subject sites lie seaward of the high water mark. The relevant Development Plan is the Land not within a Council Area (Coastal Waters) Development Plan dated 28 August 1997. This Plan "applies to those areas outside the Development Plan for the geographic areas assigned to the responsibility of a Council (Out of Council). It is the area three nautical miles seaward of the low water mark...".

26. Having considered all of the evidence and from that which we observed we have come to the view that a proper assessment of the matter before us rests largely on considerations as to whether the proposed developments adequately satisfy those provisions relating to the following issues (the provisions of the Development Plan of most importance in the assessment identified in parenthesis):

• Principles supporting ecologically sustainable development and the avoidance of unacceptable damage to the marine and non-marine environment. (Objectives 15,16,22,23,35(a),(c) and Principles 1,2,3,12(c), (d), (e)(h)

• Fair and equitable sharing of marine resources and the minimisation of conflict between users of those reserves (Objective 35(b)(d), (k) and Principle 40(a))

• Impact on amenity particularly the visual amenity of the locality within which the development sites sit (Objectives 8,14,35(i) and Principles 14,16,18,40(b))

27. We set out below our views in respect of each of these issues within the context of the relevant provision of the Development Plan. In doing so, we have taken the Development Plan as a whole being mindful, as we have, of its intent and purpose and the physical and environmental context within which its provisions are to be applied. We are aware of the conflicting themes that sometimes emerge in planning policy and of the necessity to carefully weight the circumstances and properly apply the provisions after taking into account the nature and strength of the private and public interest that prevail when assessing the merits of each development.

28. However, before so doing, we think it appropriate to note that Mr Rudd advised us that the two development applications comprise one development proposal. The treatment of the proposal as two separate development applications was, apparently, an administrative decision of the Development Assessment Commission. We make no comment as to the appropriateness of that decision. However, that decision has resulted in two development applications, each relating to a different piece of land and we conclude that we have no option other than to proceed on the basis that there are two development applications which should be separately assessed.

•	Ecologically Sustainable Development and Environmental Damage

29. Although several provisions of the Development Plan are relevant in the assessment of aquaculture with respect to its potential impact within the marine environment, we think that Objectives 35(a) and (c) and Principles 12(c), (d) and (h) summarises the planning guidelines. They are expressed thus:

"Aquaculture Development

Objective 35: Development of the marine environment and in particular the marine aquaculture industry:

(a) in an ecologically sustainable way;

....

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

Environmental Protection

"Principle 12: Marine aquaculture should be located, sited, designed , constructed and managed to be ecologically sustainable, to minimise interference and obstruction to the natural processes of the marine environment, and to allow maintenance of the environmental quality of the foreshore, coastline, ocean and ocean bed. Marine aquaculture should be developed and undertaken:

....

....

(c) a sufficient height above the sea floor and in a manner to minimise seabed damage, and in areas with adequate water current to disperse sediments to prevent the build up of waste (except where waste can be removed);

(d) to avoid damage to sensitive ecological areas, creeks, estuaries, wetlands and significant seagrass and mangrove communities;

....

....

....

(h) to avoid adverse impacts to wildlife (marine and terrestrial, plants and animals,), and on breeding grounds and habitats of native marine mammals and terrestrial fauna, especially migratory species."

30. In applying the aforementioned provisions we have had regard to the decision in the matter of Pt Vincent Progress Association and Ors v Development Assessment Commission and D Colmion Pty Ltd [1999] EDLR 160. When applying provisions which call for development to be "ecologically sustainable" the Court said:

"A relevant authority and this Court should take care not to approve development where serious or irreversible damage to the environment is a likely consequence, in the interests of present and future generations and the conservation of biological diversity and ecological integrity except where it is impracticable to avoid such damage. This is only commonsense."

31. The Court acknowledged that the industry (at that time) was new, and the known environmental effect of the long-line method of cultivation was based on recent monitoring results. With this 'track record' in mind the Court made the following observations:

"It would be difficult to conclude that the scientists are yet aware of the full consequences for the environment of intertidal long-line oyster cultivation. Nonetheless, we do not understand the principles of ecologically sustainable development and in particular the precautionary principle to mean that development should not proceed simply because the full consequences for ecological processes upon which life depends, are unknown. The precautionary principle applies to caution against approving development where there is a threat of serious or irreversible damage to the environment. When a threat of that nature is likely, then it would not generally be appropriate for development to proceed. Similarly, in assessing the proposed development against Principle of Development Control 12 and Objective 35(a), a relevant authority and this Court should be cautious where there is shown to be a serious question as to the maintenance of the health, diversity and productivity of the environment, or as to the conservation of biological diversity and ecological integrity, raised by the proposed aquaculture development."

32. We consider the circumstances in the matter now before the Court allows us to take a similar approach. Having regard to all of the evidence put before us, we think that the extent to which the proposed application complies with the aforementioned provisions resides largely in an assessment of the impact of the proposals on the seagrass communities.

33. The Court accepts the proposition that seagrass communities are important in forming a significant part of the basis of the food chain (being the primary producers in shallow coastal waters of Spencer Gulf), provision of habitat (including nursery areas) for benthic and pelagic fauna, production of biogenic carbonate sediments, sediment stabilization, mitigation of wave and current energies and recycling of nutrients and organic materials.

34. General concerns that were expressed with regard to impacts on seagrass beds and associated benthic fauna included the potential effects of elevated turbidity during construction in reducing photosynthesis, smothering by resuspended sediments, severing of seagrass rhizomes during construction, erosion caused by turbulence downstream of support posts, impacts of toxic metals leaching from treated timber posts, physical damage due to trampling and boat propellors, shading by oyster baskets and support structures and escape of feral oysters. An underlying concern in the evidence of Dr Shepherd, Ms Harbison, Mr Reilly, Mr Pidun and others is that once Posidonia seagrass beds are disturbed, they either never recover or recover only slowly and that ongoing disturbance, such as the regular activities of running an oyster farm would be likely to lead to the loss of seagrasses within the working areas of the leases. The issue of the robustness of seagrass beds is addressed later.

35. Dr Shepherd in his statement (Exhibit A1) stated that "Upper Spencer Gulf is a notoriously unstable sedimentary environment...". Mr Reilly said in reference to the dispersion of contaminants that the "Upper Spencer Gulf is a low energy system." He also noted the "absence of significant wave action". These viewpoints are conflicting. On the basis of the evidence about seafloor gradients, current speeds, wave heights, the extent of seagrass beds, sediment types and seabed ripple features, the Court is of the view a better description would be that Upper Spencer Gulf is characterised by low energy, relatively stable sedimentary environments.

•	Construction Impacts

36. Construction of the long-line structures will involve the placement within each 10ha site some 5,000 treated timber posts, each 1.8m long, 50-75mm in diameter and buried to a depth of 500mm. The posts are "jetted-in" using a high pressure water jet to fluidise the substrate and allow the posts to sink in under their own weight. This technique is usually used by South Australian oyster farmers. Concerns were expressed by Ms Harbison that placement of posts would increase turbidity levels and result in sediments smothering seagrasses. Dr Shepherd also addressed turbidity levels and the potential for increased turbidity to reduce the ability of seagrasses to photosynthesise. Ms Harbison described sub-tidal to mid-intertidal sediments (the zones in which the oyster lease would be placed) as ranging from medium to coarse shelly sands, with no silt or clay size fraction and principally consisting of biogenic carbonate (some 85%). Dr Shepherd referred to several published sedimentological papers, and cited figures being substantially at variance with the data supplied by Ms Harbison.

37. We are of the view that any sediments of the quoted grain sizes which become suspended during the placement of posts will settle rapidly and have a transient effect on seagrass photosynthesis. Dr Deering has made observations at a number of oyster farms, both during and after the placement of timber posts, using the jetting method. He stated that effects were transient, that sediments displaced during the installation of posts quickly settled out and that any sediments covering seagrasses were not discernible after a day or two. We prefer Dr Deerings' evidence on this issue.

38. Dr Shepherd cited high turbidity levels in Upper Spencer Gulf and quoted attenuation coefficients of 0.2-0.5 (0.5 means half of the visible light is absorbed within 1m of the water surface). His evidence was not site specific. However, on the Court's observations the day after two days of winds in the range 30-50 km/h, the seabed was clearly visible in 3 to 4m of water and we have concluded after considering all evidence that high turbidity levels would be transient and would also not be influenced by oyster farming activities.

39. Placement of posts will necessarily disturb seagrass rhizomes. Dr Shepherd and Ms Harbison contended that this will result in erosion and dieback of seagrasses. However we note that their opinions were formed without having observed the effects of the placement of posts in oyster farms constructed elsewhere within seagrass beds. Dr Deering stated that he has observed Posidonia growing up to the timber posts within a year of the construction of several other oyster farms.

•	Erosion Due To Current Interactions With Structures

40. The potential for turbulence downstream of the timber posts will depend on several factors including post diameters, current speeds and directions and the relative turbulence levels compared to those naturally tolerable for Posidonia in shallow waters. Current speeds within the proposed lease areas are likely to be quite low. Dr Shepherd, in his statement (Exhibit A1), cited current speeds in tidal channels of the order of 2 knots (roughly 3.5 km/h). In oral evidence he mentioned current speeds of up to 10 knots (roughly 18 km/h). However, these water speeds are generally found only in the deeper channels of the Gulf. The nature of the coast and the gently sloping seabed in One Shack Bay suggest that the maximum speed of water draining from the intertidal flats is more likely (with a tidal range of 3.5m) to be of the order of 0.2 km/h. As a consequence the average current speeds are likely to be of the order of 0.1 km/h.

41. The Court considers that due to the low current speeds involved in turbulence generated by water flow around the small diameter posts and suspended baskets it would be unlikely to have an unreasonable impact on seagrasses.

•	Leaching Of Toxic Metals From Treated Timber Posts

42. Ms Harbison opined that the metals used in timber post treatment, including copper, chromium and arsenic would leach from the posts and could accumulate in the tissues of oysters. Dr Deering suggested that long term, obligatory monitoring of toxic metals in oysters from other oyster farms around South Australia had never demonstrated levels approaching those set in guidelines for maximum levels in food for human consumptions. We accept Dr Deering's evidence and note that Mr Struck would be required to regularly submit oysters for metals analyses. Should his product be non-compliant his licence could be revoked.

•	Operational Physical Impacts

43. Operation of long-line oyster farms involves periodic collection of oyster baskets for the grading and harvesting of oysters, the replacement of those baskets and other general maintenance. Earlier we described the general nature of the operations conducted. These activities will inevitably involve some trampling of seagrass bed and benthic fauna. Dr Shepherd and Ms Harbison stated that this would result in seagrass loss, since the seagrass rhizomes, growing meristems and leaf blades would be disturbed or severed. They cited examples from overseas where seagrass losses had occurred on and around oyster farms. In addition they expressed the opinion that razor clams would be killed by operational activities.

44. Work on the oyster farms will be generally on a daily basis. Mr Struck and Dr Deering both pointed out that, in effect, any patch of seabed would be visited about six times per year, since it would be impossible to work over the whole of a lease in one day. We regard this as a relatively low frequency of intrusion. Both Dr Shepherd and Ms Harbison expressed the opinion that Posidonia recovers very slowly, if at all, from physical or other disturbance. Were this true, there would no seagrasses anywhere in environments where natural sedimentary deposition or erosion processes caused seagrass loss. When questioned by the Court, Dr Shepherd accepted that even in a highly disturbed environment (such as in the near shore waters of metropolitan Adelaide the subject of major land-based discharges of fresh water, nutrients and other pollutants), Posidonia can have lateral re-colonization rates of 1-2m per year. There is evidence of lateral re-colonization of Posidonia near Whyalla at rates of up to 15m per year.

45. Dr Deering also pointed out that the examples cited from overseas all involved much more invasive oyster farm technologies than that proposed in the long-line farming system. He made particular mention of ground farming which can involve dredging of the oyster beds. The Court considers that the examples cited by expert witnesses for the appellant have little or no relevance to assessing the impacts of the proposed leases.

46. Mr Turner stated that in the 10 years since he commenced oyster farming in Franklin Harbour, Posidonia cover under and around his farm had increased from 0% to about 60% and that razor clam densities had increased substantially. He attributed this to the removal of net fishing by professional fishermen, where dragging weighted nets over the seabed had a frequent and long term impact on benthic fauna and flora. Dr Deering, referred to an Adelaide University Honours student thesis, which stated that it was likely oyster farms provided protected refuges for benthic fauna and flora. We are also aware that razor clams are harvested by recreational fishers and semi-professional fishers. Thus it seems that the exclusion of such activities for example by the establishment of oyster lease may provide protection for communities of this species.

47. Dr Shepherd's evidence addressed the issue of the impact on seagrasses by the dragging of anchor chains. Losses of seagrasses due to the dragging of chains used in mooring boats are well documented and these result from boats swinging at anchor. Since anchoring a boat is not intended or required on the subject sites no such impact will occur on the subject sites.

48. We have not overlooked the possibility of the destruction of razor clams due to trampling. However, in practice, it seems from evidence given by Mr Turner and Dr Deering that oyster farm operators avoid walking on razor clams. They have very sharp edged shells which can cut through protective footwear and clothing and for personal safety reasons trampling is minimised or avoided.

49. Impacts of boat propellers on seagrass communities is well documented. Dr Deering cited examples from South Australia where around boat ramps, substantial loss of seagrasses had occurred. The Court has knowledge of significant damage and erosion of seagrasses near Port Pirie and accepts Dr Deering's statements. However Mr Struck, Mr Turner and Dr Deering all stated quite clearly that the normal practice of oyster farm operators is to approach the farms from the deeper seaward side, turn off their boat motors and drift to the side of the oyster farm. All further movement of boats within farm sites is then conducted by a person wading and pulling or pushing the boat. From a purely practical point of view this also minimizes damage to expensive boat propellers.

•	Shading of Seagrasses

50. Dr Shepherd opined that shading of seagrasses by aquaculture structures reduces the light intensity reaching seagrass leaf blades and so reduces the vigour of seagrasses and their ability to survive.

51. Dr Deering opined that the examples often cited to show circumstances, where shading had resulted in seagrass loss, involved quite different technologies such as ground culture, rack culture and raft culture. Ground culture involves oysters being seeded onto the seabed and then often covered with mesh to protect them from predators. Such farming effectively alienates the seabed within oyster farms as far as other benthic organisms are concerned. Rack culture involves vertical structures, resembling paling fences which have a large shadow footprint. Raft culture employs large floating rafts of many square metres which shade a correspondingly large amount of the seabed. Dr Deering took a different view in respect of long-line oyster farming. Each basket is quite small (less than 1.0m square) and the location of the shadow from each basket moves around with varying sun angles. The Court accepts Dr Deering's opinion that shading under such structures is substantially less than under those used for other methods of oyster culture and has concluded that no significant impact on the health of seagrass is likely.

•	Feral Oysters

52. Both Dr Shepherd and Ms Harbison raised the matter of the potential escape of Pacific Oysters and their establishment outside of oyster farms.

53. A number of site specific factors and observations from elsewhere in South Australia suggest that there is a low probability that feral oyster establishment would occur, or if it did would be of any great significance. Dr Deering cited two cases of settlement of feral Pacific Oysters on the west coast of South Australia, involving in all less than 100 individuals. They were able to be manually removed. He also stated that for oyster spat to settle (attach themselves to a firm substrate) they require salinities of less than about 21 parts per thousand. Such low salinities are well below those that normally prevail in Upper Spencer Gulf. He also said that feral oyster settlement had never been observed at Port Augusta or in Franklin Harbour at Cowell, where oyster farming has been conducted for 10 years.

54. Ms Harbison expressed concern that the shingle and cobble beaches along the western side of Upper Spencer Gulf might provide good substrates for feral oyster settlement. However, she accepted that these beaches are in the upper intertidal areas, receive infrequent inundation and are very hot in summer - in other words, unlikely sites for spat settlement.

55. The Court has carefully considered all of the evidence on the issue of environmental impact on the marine environment. On the evidence we have concluded that the development of oyster leases in One Shack Bay will not have environmental impacts that are unacceptable. In reaching our conclusions we have had regard to the "adaptive management" regime that will come about as a consequence of the licence to be issued pursuant to the Aquaculture Act 2001. The draft license was tendered as Exhibit R3. Having regard to that which fell from Tuna Boat Owners Association of SA Inc v Development Assessment Commission and another (Supra) we think terms of the licence are appropriate consideration and note, the licence is to be granted for 1 year. Overall, the weight of evidence, the experiences of Dr Deering and Mr Turner and the licensing and lease arrangements necessary pursuant to the Aquaculture Act 2001 satisfy us that the proposal will adequately satisfy Objectives 35(a) and (c) and the relevant principles.

Sharing of Marine and Coastal Resources

56. We think Principle 40(a) encapsulates the provisions relevant to the assessment of the proposal in respect of the sharing of marine resources. Principle 40(a) is expressed thus:

Protection of physical and economic resources

"Principle 40: Marine aquaculture development should:

(a) Be carried out in a manner which ensures a fair and equitable sharing of marine and coastal resources and minimises conflict between legitimate users of the marine resource, both commercial and recreational"

57. Objective 35(d) broadens the assessment somewhat. This provision seeks to minimise the conflicts "between water and land based uses including:

(i) aquaculture;

(ii) wild fisheries;

(iii) recreational fishing;

(iv) passive and recreational activities (eg: boating, skiing, sailing, swimming, diving, sightseeing, enjoyment of coastal wilderness);

....

(vi) residential, other urban development and holiday areas."

58. Mr Edwards gave evidence in support of the case for the appellants. He is a professional fisherman and is one among several who uses One Shack Bay and its environs for commercial fishing activities. He told the Court that One Shack Bay is an important resource for the successful conduct of his fishing business. Although the full financial picture was not put before the Court, we gained the impression that there are some occasions where the catch of silver whiting in One Shack Bay realises significant financial returns to him.

59. Mr Edwards described the way in which the fish are caught. A ring net system is deployed after the school of fish is detected. Different parts of the embayment are used depending on tides and the movement of fish. Mr Edwards opined that the position of the subject sites and the presence of the oyster cultivation structures would impede access to the main fishing area, limit the ability to correctly position his boat when setting the net and generally reduce the area available for fishing.

60. We accept the general thrust of Mr Edwards' evidence. It seems that One Shack Bay is an important commercial fishing resource at least for Mr Edwards. No evidence was put to the Court, which would challenge that proposition. We acknowledge that the embayment is but one area in the gulf waters where fishing can take place. However, we are in no doubt that the circumstances require us to have regard to the provisions of Principle 40(a) and Objective 35(d) in respect of the potential for conflict with wild fisheries.

61. The Court also heard of other users of the embayment. Mr Pidun and Mr Organ told the Court of the use of the shallow waters in the region of the subject sites by recreational fishers. Both witnesses also informed the Court of the use of the shoreline for camping and general beachside activities. We acknowledge this evidence as we do the evidence Mr Holmes when he opined that the locality could not be characterised as one of "high public use" as that term is used in Principle 40(b).

62. We have concluded that the two proposed oyster farms, viewed together, are at odds with the aforementioned provisions. The subject sites effectively extend over the whole of the "mouth" of the embayment. Either by virtue of s45 of the Aquaculture Act 2001 or the presence of 10,000 posts that support the cultivation structure, access to and the use of One Shack Bay for commercial and recreational fishing will be significantly impeded. It seems to us that the two sites, taken together, will effectively occupy almost the whole bay. If there was only one 10ha site the commercial and recreational fishers would all have a share of the bay. It is in this context, we conclude on the evidence of Mr Edwards that it is the northern site (DA 010/0049/99) that is the principal cause of the conflicts between aquaculture and wild fisheries sought to be avoided in the aforementioned principles and objectives.

63. We have also considered the impact of the subject sites on the passive users of the embayment. We acknowledge that there exists the prospect for some conflict to occur. However, in light of the number of people that use the embayment shoreline we do not think that the overall diminution of the resource is so significant as would bring it into conflict with the relevant provisions of Principle 40(iv).

Impact on the Visual Amenity

64. Principle 18 provides guidance to the design of structures for offshore aquaculture activities. It speaks of structures being as "unobtrusive as possible, apart from those required...for navigational safety." The principle then speaks of development blending visually with the environment, having a low profile, being constructed of non-reflective materials, using uniform subdued colours and positioning structures to "provide the minimum distance practical above the water." We think that Objectives 14, 15 and 35(i) and Principles 14(c) and 16(a) summarise the provisions relevant to the assessment of the impact of the proposals on the visual amenity. These provisions are expressed thus:

Coastal Waters

"Objective 14: The amenity of localities not impaired by the appearance of land, buildings, objects and structures."

"Objective 15: Sustain or enhance the natural coastal environment in South Australia."

Aquaculture Development

"Objective 35: Development of the marine environment and in particular the marine aquaculture industry:

....

(i) to minimise adverse impact on the visual amenity of the coastal environment, and unspoilt views adjacent to the coast."

Preservation of scenic, heritage and other values

"Principle 14: Development which is proposed to be located outside of urban and tourist zones should be sited and designed to not adversely affect:

....

....

(c) views from the coast, near-shore waters, public reserves, tourist routes and walking trails."

"Principle 16: Marine aquaculture and other offshore development should:

(a) minimise adverse impacts on the visual amenity or natural character of the coast and foreshore, particularly in areas of outstanding beauty or areas of high public use."

65. We have observed previously that the subject sites will each be occupied by 5,000 posts protruding 1.2m above the seabed. Higher and more prominent posts will be present as an aid to navigation. The evidence indicates the posts and baskets being increasingly exposed as the tide recedes. There will be times, during daylight hours, when a substantial portion of the structures will be visible for several hours. At high tides, except for the posts inserted for navigational assistance, the posts are likely to be fully submerged.

66. The subject sites are, at some points on their landside boundaries, within 200m of the high water mark. The sites, once fully developed, will be clearly visible from the high points and each end of the embayment and from Mr Pidun's house as the tide recedes. Mr Pidun enjoys expansive views over One Shack Bay from his land and residence. The subject sites will also be visible from all points on the shoreline. Only occasional views are obtainable from the access road. A small portion of the northern side is able to be seen from the shacks at Douglas Point South.

67. In our consideration of the proposals against the relevant provisions we acknowledge Mr Rudd's submission with respect to the language employed in the planning guidelines. We agree with him that the essential thrust of the provisions seek to minimise visual impact rather than 'avoid' or eliminate visual impact.

68. We agree with Mr Holmes when he opined that the locality is neither dramatic nor pristine nor one possessing high visual or scenic value. That said, we consider the locality as scenically attractive and thus cannot sweep aside those provisions which are intended to take reasonable measures to protect amenity or minimise the impact of the proposals. Nor can we write down the provisions simply because the people who may enjoy the views are not present in large numbers. Mr Pidun's amenity and the amenity of those who use One Shack Bay are a proper consideration when applying the relevant provisions.

69. Unlike many other oyster farm sites that the Court heard about or has knowledge of, the proposals and the circumstances before the Court have particular features that give rise to conflicts when assessing the visual impact. Being about 2.3km between the Douglas Point South and Crag Point 'headlands', One Shack Bay is a relatively small embayment. The subject sites 'consume' a considerable proportion of this length. Geographically it is more of a 'dent' in the coastline and thus can be distinguished from other bays (eg: Fitzgerald Bay and Franklin Harbour) within which aquaculture activities take place. Distances to the shore and human activities occurring thereon are, therefore, of considerable relevance. We earlier observed the distance from the shore to the nearest point of one lease is less than 200m and have little doubt about the extent to which each site will alter the visual characteristics of the coastline for several hours of each day.

70. Having regard to these matters we have concluded that taken as a whole, the proposals will impair the amenity of the locality to a significant degree. At low tides, when fully developed, the proposals will result in the exposure of 10,000 posts stretching across most of the mouth of a confined embayment. However, we are conscious of the location of Mr Pidun's house and the fact that the most prominent views are obtained from the high point immediately to the north of his home. It is the northern site which we consider most visually offensive. Considered in isolation we have concluded that the southern site is located in a manner that adequately meet the aforementioned provisions when properly applied in the circumstances. More particularly, insofar as the assessment relates to visual impact, we consider the southern site alone would minimise the visual impact and strike the appropriate balance between provisions that support the use of the gulf waters for aquaculture and those seeking the preservation of the scenic amenity and natural character of the coastline.

Other Matters

71. We have given consideration to all other relevant provisions. We have given particular attention to those provisions which seek orderly and economic development, and the related provisions dealing within on-shore facilities (Objective 35(g)) and those which specifically support the development of the marine environment. We have concluded that a proper assessment of this proposal can proceed in the absence of any details about the availability and location of on-shore facilities. The evidence presented to the Court indicates quite clearly that on-shore activities involved in the cultivation of oysters can occur at locations quite remote from the marine site. It is, perhaps, worth mentioning that the issue of development plan consent for land based facilities is a function of the Council - not a party to these proceedings - rather than the Development Assessment Commission.

72. We acknowledge the deletion from the proposals any reference to on-shore facilities (which facilities are shown in the plans accompanying the development applications as being adjacent to Mr Pidun's house). It appears to us that the removal of this aspect of the proposals has established a concern in Mr Pidun's mind about what he may be presented with in the future. He may question the real intent of the proposal. We have reached no conclusions in that respect. However, we have reached the view, from the evidence, that launching facilities are available at a location not unusually distant from the subject sites. Accordingly, the successful operation of the proposals would not rely on launching facilities near to or in the vicinity of One Shack Bay. Further, no evidence was put to us that would require us to conclude that the provisions of Objective 35(g) and Objective 1 cannot be met insofar as they may relate to on-shore facilities.

73. We have also considered the provisions of Objective 35(k) and acknowledge the observations made by the Court in Pt Vincent Progress Association and Ors v Development Assessment Commission and D Colmion Pty Ltd (supra) in respect of its proper application. We do not think that Objective 35(k) is intended to place any particular weight on the establishment of aquaculture entities in the marine environment or in any way diminish the relevance of other provisions and in particular those intended to protect the marine environment of coastal amenity.

CONCLUSION

74. In undertaking our assessment we have read the Development Plan as a whole and proceeded on the basis that not one of its provisions stand out as more important than another. The Development Plan, on our reading, seeks a balance between the economic development of marine resources and the consequential physical and environmental impacts. Striking the correct balance can be a difficult task. In this instance it involves an assessment of the relevant provisions within the particular circumstances, a consideration of provisions of the Aquaculture Act 2001 and the application of the proper principles of planning.

75. For the reasons provided herein, we are satisfied that both proposals, properly managed and monitored, will be in adequate compliance with those provisions that call for aquaculture development to be ecologically sustainable and environmentally sound. We have further concluded that the provisions of the Aquaculture Act 2001 provide an adequate fail-safe regime in the unlikely event that environmental damage is detected. In so concluding we note that the objects of the Development Act 1993 and the Aquaculture Act 2001 both promote ecologically sustainable development.

76. However, when the proposals are taken together we conclude that the development is substantially at odds with those provisions which seek equity in the use of marine resources and those which urge development to be compatible with the visual environment. We think the evidence shows that in the circumstances the proposal to establish two oyster farms is incapable of striking the balance sought in the Development Plan. As a whole, we think the proposals constitute an overdevelopment of a small confined embayment.

77. That said, we earlier observed that the whole consists of two parts able to be separately assessed. We have concluded that conflict with the relevant provisions can be attributed in large part to the northern site (DA 010/0049/99). This site will affect to an unreasonable degree the visual amenity enjoyed by Mr Pidun and the casual users of the One Shack Bay environs. Furthermore, on the evidence, it is the northern site which, seriously impedes access to and operational needs of the wildfish opportunities in the embayment.

78. In contrast, the southern site (DA 010/0050/99) by itself would strike the appropriate balance referred to earlier. We do not think that its presence would eliminate all conflicts. By no means will it achieve that status. However, we have concluded that the southern site would minimise the visual impact and generally enable reasonable and unimpeded access to the embayment and thus the sharing of the available resources. In saying this we recognise that it may be convenient to have two sites situated side by side. However, the evidence indicates that a single 10ha site is a viable entity and that two sites, immediately adjacent, is not an essential requirement of a successful oyster farm investment. We add also that the location of the southern site is a significant factor in our conclusion. The deletion of the northern site should not be seen either as an opportunity or an invitation to relocate the southern site. Subject to the views of the parties, we intend to include a condition to this effect in the approval to issue with respect to that site. To do so would only reinstate some of the original concerns.

79. For the foregoing reasons, in our memorandum dated 5 November 2003 we advised the parties as follows. Firstly the Court intended to refuse Provisional Development Plan Consent in respect of Development Application No 010/0049/99. Secondly, the Court intimated that it was prepared to grant consent in respect of Development Application No 010/0050/99 and offered the parties the opportunity to address us on the conditions in light of our judgment.

80. On resumption, Ms Daniell handed to the Court draft minutes of order for each matter. No submissions were made by the other parties in respect of the draft conditions.

81. The approach taken by Ms Daniell is appropriate and is reflected in our decision.

82. Mr Tredrea also handed to the Court draft conditions, the general intent of which is to remove the possibility of a range of on-shore activities generally associated with an oyster farm occurring on the foreshore of "One Shack Bay". They are in the nature of "external conditions" and we have given consideration to his submissions and note the other parties willingness to abide the Court's decision on the question of whether such conditions should be attached to the consent in respect of Development Application No 010/0050/99.

83. In our view the proposed conditions directly relate to the manner in which the development will operate. Further, the issues which give rise to the conditions were the subject of a substantial body of evidence and the subject of undertakings given by the second respondent, Mr Colin Struck, in the course of the proceedings. In a modified form the conditions proposed by Mr Tredrea are incorporated in our decision.

DECISION

84. 1. In respect of Development Application No 010/0049/99, the Court hereby orders that:

A. The appeal is allowed.

B. The decision of the Development Assessment Commission dated 30 July 2002, to grant development approval to Development Application No 010/0049/99 is reversed.

85. 2. In respect of Development Application No 010/0050/99 the Court hereby orders that the development approval granted by the Development Assessment Commission dated 30 July 2002, for a ten hectare oyster farm be varied by:

A. Deleting condition 1 thereof and by substituting the following condition:

1. That, except as varied by conditions imposed by this consent, and as varied by the variation of the location of the development proposed in Todd Alexander Survey Plan numbered CCX0P001.DWG dated 22 April 2003, the development shall be established in strict accordance with the details and plans lodged in association with Development Application No 010/0050/99.

B. Adding a new condition 2 which states:

2. Further to condition 1, the location of the proposed development is therefore that land and water that flows over the land enclosed by the polygons with corners at the following reference points in Zone 53 AGD 66:

761713.875 E 6358866.985 N

761524.262 E 6358961.752 N

761576.339 E 6358407.866 N

761765.952 E 6358313.099 N

C. Adding a new condition 3 which states:

3. Subject to any Development Approval that may issue the following acts and activities in relation to the 10-hectare site hereby approved for the cultivation of oysters shall not occur upon the foreshore of the area named "One Shack Bay" which area is generally defined on the hand drawn map on page 16 of Exhibit R2:

- launching and retrieving of boats;

- cleaning of structures and equipment used for the cultivation of oysters;

- harvesting, sorting, cleaning and packing of oysters or oyster spat;

- storage of materials and items used for the cultivation of oysters and the storage of construction equipment.

D. Renumbering conditions 2 to 11 thereof accordingly.