	Nelly Bay – Magnetic Island

Home Background Chronology Key Issues Engineering Report Legal Advice Magnetic Harbour 1998 Nelly Bay Proposal 1995 Magnetic Quay 1989 Magnetic Keys 1986 Win-Win Alternative EIA Process Public SEIS Responses State SEIS Response Federal SEIS Response Public FEIS Responses Nelly Bay Photographs Corporate Information State Marine Park Great Barrier Reef Region Photo: Brahminy Kite © Ian Montgomery www.birdway.com.au	Legal Advice Advice about the Nelly Bay re-development, the Marine Parks Act 1982, the Townsville-Whitsunday Marine Park, the Townsville-Whitsunday Marine Park Zoning Plan and the Marine Parks Regulation 1990. 1. Background Some works, including reclamation, are proposed in the Townsville-Whitsunday Marine Park for the purposes of construction of a development incorporating a residential canal estate. Complaints have been made about this proposal to the Ombudsman on two grounds. These are that - • the Queensland government intends to excise a section of the marine park through reclamation without complying with the process set out in s 22 Marine Parks Act 1982; and • the works proposed do not comply with the objectives of the Townsville-Whitsunday Marine Park Zoning Plan. The Ombudsman has received advice on these matters from the Environmental Protection Agency and the Department of State Development. The Environmental Protection Agency view on the matter is that '…reclamation does not constitute revocation of the setting apart and declaration of an area as a marine park as envisaged in section 22 of the Act, as the boundary of the marine park (high water mark) would not have changed subsequent to the reclamation as the boundary would still be the high water mark.' The view of the Department of State Development is that '…the Townsville-Whitsunday Marine Park Zoning Plan provides for reclamation works within the Marine Park subject to there being written permission from the Director of National Parks and Wildlife (now the Chief Executive). Approved reclamation work can, and will in this case, alter high water mark. The landward boundary of the Townsville-Whitsunday Marine Park is defined as being high water mark. It is not a surveyed boundary in acknowledgment of its movement with eroding or prograding [sic] shorelines. Should this boundary be altered by a permitted reclamation process, rather than by natural change, the same description of the new boundary will apply. It will still be designated as high water mark. Accordingly, advice to this Department from the Environmental Protection Agency has been that the reclamation does not sensibly require a revocation process. Indeed to revoke and redeclare [sic] necessarily using exactly the same wording is a nonsense.' The responses from the relevant government departments support a different interpretation of the legislation from that expressed by the complainant. The Ombudsman has now written to the complainant stating that she may wish to provide a legal opinion to support her position. To deal with these issues it is necessary to first state the relevant law. 2. The Law The relevant law is the Marine Parks Act 1982 and its subordinate legislation (the Marine Parks Regulation 1990.) The provisions of the Townsville-Whitsunday Marine Park Zoning Plan are also relevant. 2.1 The Marine Parks Act 1982 The relevant parts of the Act are the Long Title, and ss 11, 14, 16, 17, 22, 23, and 30. The Long Title of an Act usually gives an indication of the purpose for which the Act was enacted and consequently a hint of the contents of the statute. The Long Title is 'An Act to provide for the setting apart of tidal lands and tidal waters as marine parks and for related purposes.' Section 11 sets out the functions of the chief executive. It expresses the requirement for the chief executive to comply with the intention of parliament contained in the provisions of the Act. It states - 'Functions of chief executive 11. (1) The functions of the chief executive under this Act are – (a) to assess the suitability of tidal waters and tidal land for setting apart and declaration as marine park under this Act; and (b) to recommend to the Minister with respect to- (i) areas that should be set apart and declared as marine park; (ii) marine parks that have been set apart and declared, whether under this Act or [another] and their management and control; (iii) regulations that should be made under this Act in relation to marine parks or any of them; and (c) to prepare proposals for submission to the Minister with respect to the setting apart and declaration of marine parks or with respect to the revocation of the setting apart and declaration of any marine park; and (d) to prepare a zoning plan in respect of each area set apart and declared as a marine park; and (e) to undertake or to arrange for the undertaking of the management and control of marine parks; and (f) to do any act or thing that is incidental to the discharge of any of the foregoing functions or that is calculated to aid the proper discharge of any of those functions. '(2) In the discharge of the chief executive's functions under this Act the chief executive shall comply with the provisions of this Act and of relevant regulations made under this Act.' Section 14 deals with proposals for marine parks. Subsection (2) provides '(2) In preparing a proposal the chief executive shall have regard to the needs of conservation of, research in and reasonable use and enjoyment by persons of the area to which the proposal relates.' In s 17 certain prescriptive requirements of zoning plans are expressed. Section 17 (1)(d) states that the zoning plan must indicate the purpose or purposes for which any zone in the marine park may be entered or used. Subsection (3) states '(3) Any contravention of or failure to comply with a provision of a zoning plan that is for the time being approved by the Governor in Council under this Act shall constitute an offence.' A marine park may be revoked in whole or part by the process outlined in s 22, which states- 'Revocation of marine parks 22.(1). The Governor in Council may, by regulation, revoke the setting apart and declaration of a marine park in whole or part. (2) The regulation may be made only if the Legislative Assembly has, on a motion of which at least 14 sitting days' notice has been given, passed a resolution requesting the Governor in council to make the revocation.' Section 23 sets out the chief executive's powers that are necessary for the undertaking of the chief executive's functions regarding marine parks. The relevant parts of this section are- 'Chief executive's powers re [sic] marine parks 23.(1) The chief executive may- (a) undertake or cause to be undertaken within a marine park, such works as the chief executive considers necessary or desirable, having regard to the relevant zoning plan, for the conservation, proper management, or as the case may be, public enjoyment of the park or of any zone thereof; and ……….. (d) do any thing incidental to the proper discharge of the chief executive's functions under this Act.' The regulation-making power is in s 30. The Governor in Council may make regulations for or about a number of matters relevant to marine parks. The list of matters is an exhaustive list. Relevant extracts of s 30 are – 'Regulations 30.(1) The Governor in Council may make regulations under this Act (2) A regulation may be made for or about the following – (a) the preparation, implementation and enforcement of zoning plans; (b) the preparation and implementation of management plans and programs of works for marine parks: (c) the manner in which any function, duty or power shall be discharged, performed or exercised for the purposes of this Act… ………. (i) services and facilities in, or in connection with, marine parks; (j) the preservation and protection of marine parks and property and things therein; ………………' 2.2 The Marine Parks Regulation 1990 Section 16 deals with management plans and programs of works in marine parks. Subsection (3) sets out the objectives of any management plan or program of works approved by the Minister. It states – '16(3) In the preparation of a management plan or program of works, the chief executive shall have regard to the following objectives – (a) the encouragement and regulation of the use and enjoyment of the marine park, zone or designated area by the public; and (b) the protection and conservation within the marine park, zone or designated area of marine products and objects and sites of significance.' 2.3 The Townsville-Whitsunday Marine Park Zoning Plan Zoning plans are prepared and approved under s 17 of the Act. The Townsville-Whitsunday Marine Park was declared and the Zoning Plan approved by the Governor in Council in October 1987. The relevant parts of s 5 of the Zoning Plan state – '5. General Use 'A' Zone 5.1 Objective To provide opportunities for reasonable general-use consistent with the conservation of the Marine Park. 5.2 Use and Entry Subject to … this clause sets out the only purposes for which the General Use 'A' Zone may be used or entered: (a) … (b) with the written permission of the Director or his delegate: … (xv) the dumping of spoil or the carrying out of reclamation works, beach protection works, harbour works, road building works or any other works: ……. (xviii) any purpose not listed in this clause consistent with the objective of the Zone.' 3. Consideration of Ground 1 The basis of Ground 1 of the complaint is – • the Queensland government intends to excise a section of the marine park through reclamation without complying with the process set out in s 22 Marine Parks Act 1982. Before proceeding further it is necessary to examine the term 'reclamation'. It is worth noting that reclamation is controlled under s 236 Transport Infrastructure Act 1994. This section states that ss 90 – 93 of the Harbours Act 1955 dealing with reclamation continue to have effect despite the repeal of the Harbours Act 1955. The Transport Infrastructure Act 1994 controls reclamation in all tidal waters (below mean high water spring tides) whereas the Townsville-Whitsunday Marine Park Zoning Plan made under the Marine Parks Act 1982, purports to control reclamation only in the Townsville-Whitsunday Marine Park. Any reclamation will require approval under the Transport Infrastructure Act 1994 as well as any approval that may be necessary under the Zoning Plan. The term 'reclamation' is not defined in legislation or under the Zoning Plan. It seems clear that the word 'reclamation' can be taken to have its general meaning. The Macquarie Dictionary defines 'reclamation' as 'the reclaiming of …submerged land for cultivation or other use.' Nowhere in the regulation authorising section of the Act (s 30) is there any express provision for a regulation to be made about reclamation works. Nowhere in the Act itself or the Regulation is there any express authority for reclamation works to occur in a marine park. However, the Townsville-Whitsunday Marine Park Zoning Plan contains a provision that allows the reclamation of lands in the 'A' Zone of the marine park. As this power which is purported to be exercised by the Director (the Chief Executive) or his delegate under the Zoning Plan, is not given under express authority in the Act, it may be that the power is outside the Act, and the Zoning Plan provision is therefore invalid. Is there any implied power in the Act to allow for the making of regulations and zoning plans that provide for the reclamation of land in the marine park? To come to a conclusion about this we need to consider the objects of the Marine Park Act 1982 and the purposes for which it authorises the chief executive to make decisions under it. There is no express statement of the object in the Act. The Act as a whole must therefore be examined particularly with reference to the Long Title. The Long Title gives a limited indication of the object of the legislation. Its wording implies that the Act's object is about conservation of areas as marine parks and that other purposes authorised under the Act must be related to that object of conservation. 'Park' is to take its general meaning, as it is not defined in the Act or Acts Interpretation Act 1954. The Macquarie Dictionary definition is 'Park 1. an area of land within a town, often with recreational and other facilities, which is set aside for public use; 2 a tract of land set apart, as by a city or a nation, to be preserved in its natural state for the benefit of the public' The implication is that a marine park may be declared over an area where there are conservation and research needs, but that the public should not necessarily be excluded. Section 11 invests the chief executive with certain powers. The chief executive is responsible for preparing proposals about declarations of areas as marine parks for submission to the Minister and for the management and control of marine parks and for preparation of zoning plans for areas set aside as marine parks. In carrying out these functions the chief executive may do any thing incidental to the proper discharge of the functions. When considering a proposal to make a recommendation for declaration of an area as a marine park, the chief executive must have regard to the matters in s 14(2) and 'shall have regard to the needs of conservation of, research in and reasonable use and enjoyment by persons of the area to which the proposal relates'. Section 23 sets out the chief executive's powers concerning marine parks. They relate generally to the proper management or conservation of, or public enjoyment in, a marine park and allow the chief executive to do works for these purposes in a marine park so long as they are consistent with the relevant zoning plan. A regulation may be made for or about the powers in s 23 (1)(a)(d); see s 30(b)(c). The implication in this analysis of the Act is that the primary object of the marine park is one of conservation and research coupled with the public right to enjoy the park. There is no power express or implied in the Act that authorises the purpose in the Townsville-Whitsunday Marine Park Zoning Plan of reclamation. The Marine Parks Act 1982 extends seaward over tidal waters from the highest astronomical tide mark (HAT). No land above HAT can be included in a marine park when it is declared. If an area in a marine park is reclaimed above HAT, then that part of the marine park can no longer meet the criteria that it originally had for inclusion in the marine park. The question that must be asked is - did parliament intend to set criteria for the inclusion of an area in a marine park but also intend that once the area was included in the marine park it was then possible to modify the area (eg by reclamation) so that it no longer possessed the criteria necessary for the initial inclusion in a marine park but could now stay in the marine park? One would think not. One must come to the conclusion that the Act does not provide for reclamation to take place within a marine park. When one looks at the legislation and the zoning plan one finds that the sole purported authority for carrying out reclamation is contained in the zoning plan. The zoning plan provides for reclamation whereas the Act itself does not contemplate reclamation; nor does the Act provide for the making of regulations for reclamation. The only conclusion that can be reached is that the Zoning Plan is invalid to the extent that it allows for reclamation, and therefore the reclamation proposed cannot occur unless the area is first excised from the marine park. Furthermore, there is a fundamental flaw in the Departments' argument as set out in the extracts above. Where does one draw the line on reclamation? If the Departments' views are correct then it is possible to carry out progressive reclamation in a marine park by starting at the high water mark boundary and continuing the reclamation until the whole of the park has been reclaimed. When the reclamation is completed it is clear (according to the Departments' reasoning) that the landward boundary and the original seaward boundary will be coterminous. This leads to the conclusion that it is possible to reclaim the whole of a marine park so that the final area of the park is zero. Such an argument does not warrant further examination. It is a clear illustration of the legal maxim reductio ad absurdum. I cannot see how parliament could ever have had such an intention. It is my view that reclamation is not a proper purpose under the Zoning Plan. In other words the Director (the chief executive) cannot give permission for a person to enter the 'A' Zone of the Zoning Plan for the purpose of carrying out reclamation works. Before any reclamation work is carried out, the area in which it is going to take place must first be excised from the marine park. 4. Consideration of Ground 2 The basis of the complaint in ground 2 is that: the works proposed do not comply with the objectives of the Townsville-Whitsunday Marine Park Zoning Plan. It has already been established that some of the proposed works, consisting of reclamation, are not consistent with the purposes of the Act, and that any zoning plan that purports to allow reclamation is invalid to that extent. However, the real question here is whether the use of the works, as opposed to the works themselves, comply with the Zoning Plan. The development proposal is to use the reclamation works for private residential purposes. Is such a use contemplated by the Act and the Zoning Plan, bearing in mind that the Marine Parks Act 1982 has as an object the use and enjoyment by the public of an area declared as a marine park? A case on point is Woollahra Municipal Council v Minister for Environment (1991) 24 ALD 752. The facts were these. The Director of National Parks and Wildlife in NSW had recommended to the Minister that approval be given for a private university to be established at South Head in the Sydney Harbour National Park. Dilapidated buildings were to be renovated and a licence was to be granted to the university administration to operate for 4 years. The Director and the Minister were motivated in reaching their decisions by the opportunity to restore the historical buildings and improve the surrounding land as a recreational area at no cost to the government. Development consent was not obtained from the council because the view was held that development may be carried out on land in a national park without council consent if the development constitutes a use of the land for a purpose authorised by the National Parks and Wildlife Act 1974. Woollahra Municipal Council appealed against the Director's decision, but Cripps J dismissed the appeal in the Land and Environment Court. The Court of Appeal upheld the council's further appeal in holding that the use of national park land by a private university was not a use consistent with the purposes of a national park. Kirby J said 'It is clear from the foregoing provisions of the Act that it does not, in express terms, authorise development within a national park amounting to the use of land and buildings for a private university for the teaching of business administration. (1) It is not, as such, relevant to the purposes of 'conservation and recreation'. (2) It is not incidental to recreation, in the accepted sense, being by implication, a place of disciplined study not rest recreation and renewal. (3) It is not, of its nature, open to the public at large or to all manner of people visiting the national park… (4) The provision of such a facility for private profit in a national park, available to some members only of the public has nothing to do, as such, with the park's purposes. …So far as the park is concerned it is just another private business. It is true that … the Director is given in wide terms the care, control and management of … national parks. But this power is not uncontrolled. As with any power or discretion conferred by parliament it is not granted to the Director to be exercised at his whim or for purposes, however worthy, which are not properly characterised as being for the attainment of the objects for which the power has been conferred. Those objects, unless exceptionally stated in express terms, must be derived from the general structure of the legislation, the terms of relevant provisions and the purposes for the attainment of which the legislation has been enacted. It is this principle which restrains the donee of a statutory power from exercising that power for a purpose which is not properly classified as being for the attainment of the objects for which the statutory power was conferred….. In some cases, development for a particular purpose will clearly fall outside the purposes authorised by the Act. … any purported approval of such development would be invalid. The invalidity derives not from the unreasonable exercise of power conferred upon the director… The invalidity derives from the want of power itself. Other cases will clearly fall within power. A tourist resort run for profit is a clear example.' As can be seen from this passage, by analogy with the present circumstances, an approval for private residential dwellings in a marine park is not a purpose within the Act. Only certain persons are able to use the facilities, not the general public. As the works are for private and not public use, the use of the works does not comply with the provisions of the Act. Therefore it is irrelevant whether the use complies with the Zoning Plan. Section 5.2 of the Zoning Plan headed 'Use and entry' does not expressly provide for private residential use either as of right or with the written permission of the Director or his delegate. While s 5.2(b)(xviii) of the Zoning Plan allows use for any purpose not previously listed consistent with the objects of the Zone, section 5.2(b)(xviii) cannot be interpreted to include private residential development as the object of the Act does not allow private residential development in a marine park. The park is not declared for such a purpose. Of note also is the motive behind the Director of National Parks and the Minister's approval in that work would be undertaken at no cost to the public. Kirby J said that the motives are irrelevant. He said- 'Can the objectives of zones set aside for national parks (being for conservation and recreation purposes) be changed for purposes having nothing to do with conservation and recreation simply because of a promise, incidentally, to provide funds and do certain things of benefit to the park? … If parliament wishes to provide that private business concerns can purchase effectively exclusive occupation of parts of national parks, then so be it. But until such provision is clearly made, I do not believe that it is a purpose which the court should spell out of the generality of the language by which parliament has conferred powers on the minister and the director. …In such circumstances, it is not for the minister or the director, however well motivated, to go beyond such purposes.' This point needs to be borne in mind when reading the passage in the letter from the Director of Coastal Management in the Final EIS – 'Tourism and marina developments which allow the public to access and enjoy marine parks are considered to be compatible with the General Use zones in the Townsville-Whitsunday Marine Park, provided these are appropriately sited and planned. The original Magnetic Quay proposal was approved on this basis. In the case of the Nelly Bay Harbour proposal, the site has been subject to major disturbance. The Queensland Government's present objective is to achieve a satisfactory development of the disturbed site which achieves stabilisation of the area and a socially acceptable and environmentally satisfactory outcome. In view of the exceptional circumstances which apply to the Nelly Bay Harbour project, if a satisfactory outcome were to be dependent for its financial success on some private residential component, such a proposition would not be ruled out.' Note also the following passage from the letter to the ombudsman from the Director–General of the Department of State Development, Mr Ross Rolfe- '…it is reasonable to argue that if a satisfactory outcome for the current Nelly Bay site requires some residential housing component, then this would be in the public interest and not inconsistent with what is acceptable in a General Use 'A' Zone.' Therefore any opinions that the Departments have about the justification of private residential development on the basis that it is needed for the financial success of the project, or that a 'satisfactory outcome' requires a residential housing component, are irrelevant to the issue of whether private residential development is allowed at law under the Zoning Plan. In summary, it is my opinion that both the works themselves and the use of the works for the purposes intended are not permitted under the Marine Parks Act 1982, and the use of the works is not permitted under the Zoning Plan. 5. Conclusion Both ground 1 and ground 2 are legitimate complaints and the arguments put forward by the departments in support of their proposed actions do not withstand legal analysis. As the law currently stands, before any reclamation is undertaken in the relevant area, that area must be excised from the marine park. Once excised from the marine park the use of the area for private residential development does not come within the provisions of the Marine Parks Act 1982. As a final point, it should be noted that it appears that some of the area in question may lie within the Central Section of the Great Barrier Reef Marine Park, which has been declared under the Great Barrier Reef Marine Park Act 1975. If this is the case, the development is subject to the Zoning Plan for the area under that Act. The better view is that the Commonwealth legislation covers the whole field because of the operation of s 109 of the Constitution of the Commonwealth of Australia. That is, the Marine Parks Act 1982 is not valid within the Great Barrier Reef Marine Park (GBRMP). The GBRMP extends to low water mark (LWM). Therefore approval under the Marine Park Act 1982 is required only for that part of the development between LWM and HAT. Ros Macdonald BA, LLB (Hons), GradDipLegalPrac, LLM Faculty of Law, QUT .................................................... Home \| Contact Us \| Resources \| Sitemap Nelly-Bay.com © 2006. All Rights Reserved – Nelly Bay Legal Advice

Legal Advice

Advice about the Nelly Bay re-development, the Marine Parks Act 1982, the Townsville-Whitsunday Marine Park, the Townsville-Whitsunday Marine Park Zoning Plan and the Marine Parks Regulation 1990.

1. Background

Some works, including reclamation, are proposed in the Townsville-Whitsunday Marine Park for the purposes of construction of a development incorporating a residential canal estate.

Complaints have been made about this proposal to the Ombudsman on two grounds. These are that -

• the Queensland government intends to excise a section of the marine park through reclamation without complying with the process set out in s 22 Marine Parks Act 1982; and

• the works proposed do not comply with the objectives of the Townsville-Whitsunday Marine Park Zoning Plan.

The Ombudsman has received advice on these matters from the Environmental Protection Agency and the Department of State Development.

The Environmental Protection Agency view on the matter is that

'…reclamation does not constitute revocation of the setting apart and declaration of an area as a marine park as envisaged in section 22 of the Act, as the boundary of the marine park (high water mark) would not have changed subsequent to the reclamation as the boundary would still be the high water mark.'

The view of the Department of State Development is that

'…the Townsville-Whitsunday Marine Park Zoning Plan provides for reclamation works within the Marine Park subject to there being written permission from the Director of National Parks and Wildlife (now the Chief Executive). Approved reclamation work can, and will in this case, alter high water mark. The landward boundary of the Townsville-Whitsunday Marine Park is defined as being high water mark. It is not a surveyed boundary in acknowledgment of its movement with eroding or prograding [sic] shorelines. Should this boundary be altered by a permitted reclamation process, rather than by natural change, the same description of the new boundary will apply. It will still be designated as high water mark. Accordingly, advice to this Department from the Environmental Protection Agency has been that the reclamation does not sensibly require a revocation process. Indeed to revoke and redeclare [sic] necessarily using exactly the same wording is a nonsense.'

The responses from the relevant government departments support a different interpretation of the legislation from that expressed by the complainant. The Ombudsman has now written to the complainant stating that she may wish to provide a legal opinion to support her position.

To deal with these issues it is necessary to first state the relevant law.

2. The Law

The relevant law is the Marine Parks Act 1982 and its subordinate legislation (the Marine Parks Regulation 1990.) The provisions of the Townsville-Whitsunday Marine Park Zoning Plan are also relevant.

2.1 The Marine Parks Act 1982

The relevant parts of the Act are the Long Title, and ss 11, 14, 16, 17, 22, 23, and 30.

The Long Title of an Act usually gives an indication of the purpose for which the Act was enacted and consequently a hint of the contents of the statute. The Long Title is

'An Act to provide for the setting apart of tidal lands and tidal waters as marine parks and for related purposes.'

Section 11 sets out the functions of the chief executive. It expresses the requirement for the chief executive to comply with the intention of parliament contained in the provisions of the Act. It states -
'Functions of chief executive

11. (1) The functions of the chief executive under this Act are –
(a) to assess the suitability of tidal waters and tidal land for setting apart and declaration as marine park under this Act; and

(b) to recommend to the Minister with respect to-
(i) areas that should be set apart and declared as marine park;

(ii) marine parks that have been set apart and declared, whether under this Act or [another] and their management and control;

(iii) regulations that should be made under this Act in relation to marine parks or any of them; and

(c) to prepare proposals for submission to the Minister with respect to the setting apart and declaration of marine parks or with respect to the revocation of the setting apart and declaration of any marine park; and

(d) to prepare a zoning plan in respect of each area set apart and declared as a marine park; and

(e) to undertake or to arrange for the undertaking of the management and control of marine parks; and

(f) to do any act or thing that is incidental to the discharge of any of the foregoing functions or that is calculated to aid the proper discharge of any of those functions.

'(2) In the discharge of the chief executive's functions under this Act the chief executive shall comply with the provisions of this Act and of relevant regulations made under this Act.'

Section 14 deals with proposals for marine parks. Subsection (2) provides
'(2) In preparing a proposal the chief executive shall have regard to the needs of conservation of, research in and reasonable use and enjoyment by persons of the area to which the proposal relates.'

In s 17 certain prescriptive requirements of zoning plans are expressed. Section 17 (1)(d) states that the zoning plan must indicate the purpose or purposes for which any zone in the marine park may be entered or used. Subsection (3) states
'(3) Any contravention of or failure to comply with a provision of a zoning plan that is for the time being approved by the Governor in Council under this Act shall constitute an offence.'

A marine park may be revoked in whole or part by the process outlined in s 22, which states-
'Revocation of marine parks

22.(1). The Governor in Council may, by regulation, revoke the setting apart and declaration of a marine park in whole or part.

(2) The regulation may be made only if the Legislative Assembly has, on a motion of which at least 14 sitting days' notice has been given, passed a resolution requesting the Governor in council to make the revocation.'

Section 23 sets out the chief executive's powers that are necessary for the undertaking of the chief executive's functions regarding marine parks. The relevant parts of this section are-
'Chief executive's powers re [sic] marine parks

23.(1) The chief executive may-
(a) undertake or cause to be undertaken within a marine park, such works as the chief executive considers necessary or desirable, having regard to the relevant zoning plan, for the conservation, proper management, or as the case may be, public enjoyment of the park or of any zone thereof; and

………..

(d) do any thing incidental to the proper discharge of the chief executive's functions under this Act.'

The regulation-making power is in s 30. The Governor in Council may make regulations for or about a number of matters relevant to marine parks. The list of matters is an exhaustive list. Relevant extracts of s 30 are –
'Regulations

30.(1) The Governor in Council may make regulations under this Act
(2) A regulation may be made for or about the following –
(a) the preparation, implementation and enforcement of zoning plans;

(b) the preparation and implementation of management plans and programs of works for marine parks:

(c) the manner in which any function, duty or power shall be discharged, performed or exercised for the purposes of this Act…

……….

(i) services and facilities in, or in connection with, marine parks;

(j) the preservation and protection of marine parks and property and things therein;

………………'

2.2 The Marine Parks Regulation 1990

Section 16 deals with management plans and programs of works in marine parks. Subsection (3) sets out the objectives of any management plan or program of works approved by the Minister. It states –
'16(3) In the preparation of a management plan or program of works, the chief executive shall have regard to the following objectives –
(a) the encouragement and regulation of the use and enjoyment of the marine park, zone or designated area by the public; and

(b) the protection and conservation within the marine park, zone or designated area of marine products and objects and sites of significance.'

2.3 The Townsville-Whitsunday Marine Park Zoning Plan

Zoning plans are prepared and approved under s 17 of the Act. The Townsville-Whitsunday Marine Park was declared and the Zoning Plan approved by the Governor in Council in October 1987. The relevant parts of s 5 of the Zoning Plan state –
'5. General Use 'A' Zone

5.1 Objective
To provide opportunities for reasonable general-use consistent with the conservation of the Marine Park.

5.2 Use and Entry
Subject to … this clause sets out the only purposes for which the General Use 'A' Zone may be used or entered:
(a)

…

(b) with the written permission of the Director or his delegate:

…
(xv) the dumping of spoil or the carrying out of reclamation works, beach protection works, harbour works, road building works or any other works:

…….

(xviii) any purpose not listed in this clause consistent with the objective of the Zone.'

3. Consideration of Ground 1

The basis of Ground 1 of the complaint is –

• the Queensland government intends to excise a section of the marine park through reclamation without complying with the process set out in s 22 Marine Parks Act 1982.

Before proceeding further it is necessary to examine the term 'reclamation'. It is worth noting that reclamation is controlled under s 236 Transport Infrastructure Act 1994. This section states that ss 90 – 93 of the Harbours Act 1955 dealing with reclamation continue to have effect despite the repeal of the Harbours Act 1955.

The Transport Infrastructure Act 1994 controls reclamation in all tidal waters (below mean high water spring tides) whereas the Townsville-Whitsunday Marine Park Zoning Plan made under the Marine Parks Act 1982, purports to control reclamation only in the Townsville-Whitsunday Marine Park. Any reclamation will require approval under the Transport Infrastructure Act 1994 as well as any approval that may be necessary under the Zoning Plan.

The term 'reclamation' is not defined in legislation or under the Zoning Plan. It seems clear that the word 'reclamation' can be taken to have its general meaning. The Macquarie Dictionary defines 'reclamation' as 'the reclaiming of …submerged land for cultivation or other use.'

Nowhere in the regulation authorising section of the Act (s 30) is there any express provision for a regulation to be made about reclamation works. Nowhere in the Act itself or the Regulation is there any express authority for reclamation works to occur in a marine park. However, the Townsville-Whitsunday Marine Park Zoning Plan contains a provision that allows the reclamation of lands in the 'A' Zone of the marine park.

As this power which is purported to be exercised by the Director (the Chief Executive) or his delegate under the Zoning Plan, is not given under express authority in the Act, it may be that the power is outside the Act, and the Zoning Plan provision is therefore invalid.

Is there any implied power in the Act to allow for the making of regulations and zoning plans that provide for the reclamation of land in the marine park? To come to a conclusion about this we need to consider the objects of the Marine Park Act 1982 and the purposes for which it authorises the chief executive to make decisions under it. There is no express statement of the object in the Act.

The Act as a whole must therefore be examined particularly with reference to the Long Title. The Long Title gives a limited indication of the object of the legislation. Its wording implies that the Act's object is about conservation of areas as marine parks and that other purposes authorised under the Act must be related to that object of conservation. 'Park' is to take its general meaning, as it is not defined in the Act or Acts Interpretation Act 1954. The Macquarie Dictionary definition is

'Park 1. an area of land within a town, often with recreational and other facilities, which is set aside for public use; 2 a tract of land set apart, as by a city or a nation, to be preserved in its natural state for the benefit of the public'

The implication is that a marine park may be declared over an area where there are conservation and research needs, but that the public should not necessarily be excluded.

Section 11 invests the chief executive with certain powers. The chief executive is responsible for preparing proposals about declarations of areas as marine parks for submission to the Minister and for the management and control of marine parks and for preparation of zoning plans for areas set aside as marine parks.

In carrying out these functions the chief executive may do any thing incidental to the proper discharge of the functions. When considering a proposal to make a recommendation for declaration of an area as a marine park, the chief executive must have regard to the matters in s 14(2) and 'shall have regard to the needs of conservation of, research in and reasonable use and enjoyment by persons of the area to which the proposal relates'.

Section 23 sets out the chief executive's powers concerning marine parks. They relate generally to the proper management or conservation of, or public enjoyment in, a marine park and allow the chief executive to do works for these purposes in a marine park so long as they are consistent with the relevant zoning plan. A regulation may be made for or about the powers in s 23 (1)(a)(d); see s 30(b)(c).

The implication in this analysis of the Act is that the primary object of the marine park is one of conservation and research coupled with the public right to enjoy the park. There is no power express or implied in the Act that authorises the purpose in the Townsville-Whitsunday Marine Park Zoning Plan of reclamation.

The Marine Parks Act 1982 extends seaward over tidal waters from the highest astronomical tide mark (HAT). No land above HAT can be included in a marine park when it is declared. If an area in a marine park is reclaimed above HAT, then that part of the marine park can no longer meet the criteria that it originally had for inclusion in the marine park.

The question that must be asked is - did parliament intend to set criteria for the inclusion of an area in a marine park but also intend that once the area was included in the marine park it was then possible to modify the area (eg by reclamation) so that it no longer possessed the criteria necessary for the initial inclusion in a marine park but could now stay in the marine park? One would think not.

One must come to the conclusion that the Act does not provide for reclamation to take place within a marine park. When one looks at the legislation and the zoning plan one finds that the sole purported authority for carrying out reclamation is contained in the zoning plan.

The zoning plan provides for reclamation whereas the Act itself does not contemplate reclamation; nor does the Act provide for the making of regulations for reclamation. The only conclusion that can be reached is that the Zoning Plan is invalid to the extent that it allows for reclamation, and therefore the reclamation proposed cannot occur unless the area is first excised from the marine park.

Furthermore, there is a fundamental flaw in the Departments' argument as set out in the extracts above. Where does one draw the line on reclamation? If the Departments' views are correct then it is possible to carry out progressive reclamation in a marine park by starting at the high water mark boundary and continuing the reclamation until the whole of the park has been reclaimed.

When the reclamation is completed it is clear (according to the Departments' reasoning) that the landward boundary and the original seaward boundary will be coterminous. This leads to the conclusion that it is possible to reclaim the whole of a marine park so that the final area of the park is zero. Such an argument does not warrant further examination. It is a clear illustration of the legal maxim reductio ad absurdum. I cannot see how parliament could ever have had such an intention.

It is my view that reclamation is not a proper purpose under the Zoning Plan. In other words the Director (the chief executive) cannot give permission for a person to enter the 'A' Zone of the Zoning Plan for the purpose of carrying out reclamation works. Before any reclamation work is carried out, the area in which it is going to take place must first be excised from the marine park.

4. Consideration of Ground 2

The basis of the complaint in ground 2 is that: the works proposed do not comply with the objectives of the Townsville-Whitsunday Marine Park Zoning Plan.

It has already been established that some of the proposed works, consisting of reclamation, are not consistent with the purposes of the Act, and that any zoning plan that purports to allow reclamation is invalid to that extent.

However, the real question here is whether the use of the works, as opposed to the works themselves, comply with the Zoning Plan.

The development proposal is to use the reclamation works for private residential purposes. Is such a use contemplated by the Act and the Zoning Plan, bearing in mind that the Marine Parks Act 1982 has as an object the use and enjoyment by the public of an area declared as a marine park?

A case on point is Woollahra Municipal Council v Minister for Environment (1991) 24 ALD 752. The facts were these. The Director of National Parks and Wildlife in NSW had recommended to the Minister that approval be given for a private university to be established at South Head in the Sydney Harbour National Park. Dilapidated buildings were to be renovated and a licence was to be granted to the university administration to operate for 4 years.

The Director and the Minister were motivated in reaching their decisions by the opportunity to restore the historical buildings and improve the surrounding land as a recreational area at no cost to the government. Development consent was not obtained from the council because the view was held that development may be carried out on land in a national park without council consent if the development constitutes a use of the land for a purpose authorised by the National Parks and Wildlife Act 1974.

Woollahra Municipal Council appealed against the Director's decision, but Cripps J dismissed the appeal in the Land and Environment Court. The Court of Appeal upheld the council's further appeal in holding that the use of national park land by a private university was not a use consistent with the purposes of a national park. Kirby J said

'It is clear from the foregoing provisions of the Act that it does not, in express terms, authorise development within a national park amounting to the use of land and buildings for a private university for the teaching of business administration.

(1) It is not, as such, relevant to the purposes of 'conservation and recreation'.

(2) It is not incidental to recreation, in the accepted sense, being by implication, a place of disciplined study not rest recreation and renewal.

(3) It is not, of its nature, open to the public at large or to all manner of people visiting the national park…

(4) The provision of such a facility for private profit in a national park, available to some members only of the public has nothing to do, as such, with the park's purposes. …So far as the park is concerned it is just another private business.

It is true that … the Director is given in wide terms the care, control and management of … national parks. But this power is not uncontrolled. As with any power or discretion conferred by parliament it is not granted to the Director to be exercised at his whim or for purposes, however worthy, which are not properly characterised as being for the attainment of the objects for which the power has been conferred. Those objects, unless exceptionally stated in express terms, must be derived from the general structure of the legislation, the terms of relevant provisions and the purposes for the attainment of which the legislation has been enacted. It is this principle which restrains the donee of a statutory power from exercising that power for a purpose which is not properly classified as being for the attainment of the objects for which the statutory power was conferred…..

In some cases, development for a particular purpose will clearly fall outside the purposes authorised by the Act. … any purported approval of such development would be invalid. The invalidity derives not from the unreasonable exercise of power conferred upon the director… The invalidity derives from the want of power itself.

Other cases will clearly fall within power. A tourist resort run for profit is a clear example.'

As can be seen from this passage, by analogy with the present circumstances, an approval for private residential dwellings in a marine park is not a purpose within the Act. Only certain persons are able to use the facilities, not the general public.

As the works are for private and not public use, the use of the works does not comply with the provisions of the Act. Therefore it is irrelevant whether the use complies with the Zoning Plan. Section 5.2 of the Zoning Plan headed 'Use and entry' does not expressly provide for private residential use either as of right or with the written permission of the Director or his delegate.

While s 5.2(b)(xviii) of the Zoning Plan allows use for any purpose not previously listed consistent with the objects of the Zone, section 5.2(b)(xviii) cannot be interpreted to include private residential development as the object of the Act does not allow private residential development in a marine park. The park is not declared for such a purpose.

Of note also is the motive behind the Director of National Parks and the Minister's approval in that work would be undertaken at no cost to the public. Kirby J said that the motives are irrelevant. He said-

'Can the objectives of zones set aside for national parks (being for conservation and recreation purposes) be changed for purposes having nothing to do with conservation and recreation simply because of a promise, incidentally, to provide funds and do certain things of benefit to the park?

… If parliament wishes to provide that private business concerns can purchase effectively exclusive occupation of parts of national parks, then so be it. But until such provision is clearly made, I do not believe that it is a purpose which the court should spell out of the generality of the language by which parliament has conferred powers on the minister and the director. …In such circumstances, it is not for the minister or the director, however well motivated, to go beyond such purposes.'

This point needs to be borne in mind when reading the passage in the letter from the Director of Coastal Management in the Final EIS –
'Tourism and marina developments which allow the public to access and enjoy marine parks are considered to be compatible with the General Use zones in the Townsville-Whitsunday Marine Park, provided these are appropriately sited and planned. The original Magnetic Quay proposal was approved on this basis.

In the case of the Nelly Bay Harbour proposal, the site has been subject to major disturbance. The Queensland Government's present objective is to achieve a satisfactory development of the disturbed site which achieves stabilisation of the area and a socially acceptable and environmentally satisfactory outcome.

In view of the exceptional circumstances which apply to the Nelly Bay Harbour project, if a satisfactory outcome were to be dependent for its financial success on some private residential component, such a proposition would not be ruled out.'

Note also the following passage from the letter to the ombudsman from the Director–General of the Department of State Development, Mr Ross Rolfe-

'…it is reasonable to argue that if a satisfactory outcome for the current Nelly Bay site requires some residential housing component, then this would be in the public interest and not inconsistent with what is acceptable in a General Use 'A' Zone.'

Therefore any opinions that the Departments have about the justification of private residential development on the basis that it is needed for the financial success of the project, or that a 'satisfactory outcome' requires a residential housing component, are irrelevant to the issue of whether private residential development is allowed at law under the Zoning Plan.

In summary, it is my opinion that both the works themselves and the use of the works for the purposes intended are not permitted under the Marine Parks Act 1982, and the use of the works is not permitted under the Zoning Plan.

5. Conclusion

Both ground 1 and ground 2 are legitimate complaints and the arguments put forward by the departments in support of their proposed actions do not withstand legal analysis. As the law currently stands, before any reclamation is undertaken in the relevant area, that area must be excised from the marine park. Once excised from the marine park the use of the area for private residential development does not come within the provisions of the Marine Parks Act 1982.

As a final point, it should be noted that it appears that some of the area in question may lie within the Central Section of the Great Barrier Reef Marine Park, which has been declared under the Great Barrier Reef Marine Park Act 1975. If this is the case, the development is subject to the Zoning Plan for the area under that Act.

The better view is that the Commonwealth legislation covers the whole field because of the operation of s 109 of the Constitution of the Commonwealth of Australia. That is, the Marine Parks Act 1982 is not valid within the Great Barrier Reef Marine Park (GBRMP). The GBRMP extends to low water mark (LWM). Therefore approval under the Marine Park Act 1982 is required only for that part of the development between LWM and HAT.

Ros Macdonald
BA, LLB (Hons), GradDipLegalPrac, LLM
Faculty of Law, QUT