Peel v Dac No ERD-00-902, ERD-00-903 [2004] SAERDC 38 (5 May 2004)

Last Updated: 9 May 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Trenorden, Commissioner Green and Commissioner Blackburn

Hearing

24/03/2004.

Catchwords and Materials Considered

LOCAL GOVERNMENT

Appeal against refusal by DAC to applications to hold and cultivate Atlantic Salmon and Yellow Tail Kingfish - whether proposed developments have reasonable prospect of being implemented - Aquaculture Act in operation in 2002 - no transitional provisions - no reasonable prospect of implementing the proposed developments - appeals found to be hypothetical - appeals dismissed.

• Aquaculture Act 2001 ;
• Development Act 1993 s53(1), referred to.
• Peel v DAC [2003] SAERDC 67;
• Hackney Hotel pty Ltd v Corporation of the Town of St Peters & Ors (1984) 36 SASR 265, applied.

Representation

Appellant: CHARLES HERBERT PEEL
In Person

Respondent: DEVELOPMENT ASSESSMENT COMMISSION
Counsel: DR N MANETTA - Solicitors: CROWN SOLICITOR'S OFFICE

ERD-00-902, ERD-00-903

Judgment No. [2004] SAERDC 38

5 May 2004

CHARLES HERBERT PEEL

v

DEVELOPMENT ASSESSMENT COMMISSION

(ERD Nos 902 & 903/00)

[2004] SAERDC 38

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. These appeals were lodged on 11 September 2000 in this Court. Each appeal is against a refusal by the Development Assessment Commission to grant consent to an application to hold and cultivate Atlantic Salmon and Yellow Tail Kingfish at a site in the waters of Lacepede Bay, adjacent to Kingston in the south-east of South Australia. There are a variety of reasons as to why the appeals were not heard at an earlier date, including that the parties were negotiating possible alternative aquaculture sites.

2. The Court sat to hear these appeals, with both the parties addressing the merits and the question as to whether the appeal should be dismissed on the basis that the proposed developments have no reasonable prospect of being implemented. Each party was afforded an opportunity to present its case. The appellant made closing submissions orally and closing submissions in writing were received from the respondent and a written submission-in-reply received from the appellant.

The nature of the proposed development

3. Both applications were dated 6 June 1996. The appellant proposed to establish 10 cages at each site. Each site was to be approximately two kilometres offshore and cover an area of approximately 20ha. Each site was to form a polygon with corners at the following reference points in Australian Mapping Grid Zone 54.

Development Application Number 010/0104/96

Point 1 396000E 5927400N

Point 2 396500E 5927400N

Point 3 396500E 5927000N

Point 4 396000E 5927000N

Development Application Number 010/0105/96

Point 1 394499E 5927400N

Point 2 394999E 5927400N

Point 3 394999E 5927000N

Point 4 394499E 5927000N

4. The sea cages in which it was proposed to cultivate the Yellow Tail Kingfish and Atlantic Salmon were described in the agenda paper for the applications for a meeting of the SA Aquaculture Committee on 21 May 1997, as follows:

"The sea cages consist of circular floats made of high density black polyethylene plastic with either plastic or galvanised stanchions. Two of these floats are held together with the stanchions with a rail attached above the floats to be used as a handrail. Two nets are suspended from the floats with the inner net containing the fish while the outer net is designed to exclude predators such as sharks and seals. ...

In the initial stages of the proposed development, there will be one sea cage per lease expanding to 6 sea cages in 2 years. One cage measures 19.5 metres in diameter. Stanchions extend above the sea surface to 1.2 metres. The net falls from the stanchions to approximately 5 metres below the sea surface. The minimal distance between the seabed and the cage is 3 metres. This increases in other areas of the sites. Each cage will be moored by four 300 kg railway wheels which has proved successful on the research and development sea cage in operation."

Whether the applications were for development that is hypothetical

5. Since 2002 the Aquaculture Act 2001 is the law regulating marine aquaculture. Aquaculture may only be carried on pursuant to an aquaculture licence (s17) but a licence may not be granted in respect of a particular marine location unless that location is the subject of an aquaculture lease which has been granted by the Minister (s19). There are four classes of aquaculture lease, including pilot leases, development leases, production leases and emergency leases: s26. The Minister may make an aquaculture policy which may identify an aquaculture zone, a prospective aquaculture zone, an aquaculture exclusion zone and/or an aquaculture emergency zone: s11. Neither a development lease nor a production lease may be granted for a site which is not within an aquaculture zone. Neither application site on the matters before us is located within an aquaculture zone.

6. The transitional provisions set out in Part 2 of the Schedule to the Aquaculture Act do not address the situation before us where a person had an appeal pending in respect of a refusal to grant consent to aquaculture development, at the time of the coming into operation of the Aquaculture Act. If the appellant presently held a pilot lease for the proposed sites, located as they are outside an aquaculture zone, there is the possibility that the pilot lease could be upgraded to a development lease in the future: s34. However no pilot lease is held by the appellant.

7. In the absence of any transitional provisions covering the situation in which the appellant finds himself, his proposed development can proceed no further because he does not hold a lease under the Aquaculture Act and therefore cannot obtain a licence to carry on aquaculture. Further there was evidence that there is no present prospect that the appellant would obtain a licence, as a result of the opinion held by the Environment Protection Authority, which body must approve the grant of a licence: s50(1).

8. It follows that the appellant has no reasonable prospect of being able to implement the proposed developments within a reasonable period and thus we cannot further consider the applications the subject of the appeals. The applications are hypothetical: Peel v DAC [2003] SAERDC 67 and Hackney Hotel Pty Ltd v Corporation of the Town of St Peters & Ors (1984) 36 SASR 265.

9. For the sake of completeness, we should also address the relevance of s53(1) of the Development Act 1993 to the appeals before us. That subsection provides as follows:

"Where an application is made for a development authorisation under this Act, the law to be applied in deciding the application and the law to be applied in resolving any issues arising from the decision in any proceedings (whether brought under this Act or not) is the law in force as at the time the application was made."

The subsection appears to suggest that in this case, the (later) Aquaculture Act is not to be applied to the determination of these appeals. However, the subsection applies to the determination of the appeals on their merits. It is not possible for the Court to deal with the appeals on their merits, for the reasons already expressed. From the time of its coming into operation, the Aquaculture Act, by its terms, governed all aquaculture operations or intended operations. On the facts, this puts a consent under the Development Act, out of the reach of the appellant. Accordingly, this Court cannot now decide the applications upon a hearing de novo, nor can it now resolve any issues arising from the decision of the Development Assessment Commission on each application because of its determination that the appeal proceedings are in relation to hypothetical applications.

Further comments

10. While we cannot consider the applications on their merits, there are some comments we consider should be made.

11. The consequences of the delays that allowed these appeals to languish without being heard, while new legislation was enacted and came into operation, do underline the importance of appeals being heard and determined promptly after lodgement. While we acknowledge that it is rare indeed for the law with respect to a particular kind of development to change, these matters show that it can, and has, to the possible detriment of the appellant.

12. We are aware, as a result of the lengthy history preceding the decision on the applications provided to us by the appellant and supported by the documents, of the background to the determination of these applications by the Development Assessment Commission. It is not appropriate in these proceedings for us to make any decision as to the acts, courses of action or omissions by any person. The history is complex.

13. It is clear that aquaculture was a relatively new industry to South Australia in the early to mid 1990s. We suspect, although we do not find as it is unnecessary to do so, that the appellant's evidence that he was encouraged to apply for planning consent to establish aquaculture operations, was true. We suspect that environmental monitoring of research and development aquaculture sites was in its infancy. It may be the case that the appellant did not appreciate the detail of his obligations upon the grant of a research and development consent. It may be that the appellant erred in allowing his brother to effectively take over the appellant's licensed site for his own operations. It may be the case that the relevant Government department did not clearly communicate to the appellant and did not tell him that a licence had been granted to him until close to the expiry date of the licence. At the end of the day, we do not have to determine any of these matters, because they are not relevant to the proceedings before us.

14. Even if the appellant can make out a case that he was treated shabbily by the relevant Government department or departments, that is of no relevance to what we have to decide. If the appellant considers that he has not been treated by relevant authorities in accordance with the law, his remedy lies in another Court. This Court is not able to address these matters.

Conclusion

15. Having concluded that the appeals before this Court are hypothetical, we have no jurisdiction to deal further with them. There will be an order in each matter that the appeal be dismissed.