October 24th 2007
AAT dismissive of GBRMPA & CASA over Red Baron
The future of the Red Baron Seaplane, owned and operated by Islanders Paul and Carol Mills, who run the scenic flights around Magnetic Island, remains in doubt following the release of an "interlocutory" decision by the Administrative Appeals Tribunal (AAT) after the permits issued by the Great Barrier Reef Marine Park Authority (GBRMPA) authorising the flights were challenged by Horseshoe Bay residents Tanina and Logan Connolly.
The interlocutory decision is not final but rather preliminary or intermediate in that it indicates Justice Garry Downes and Senior Tribunal Member Ms Josephine Kelly's determinations to this point but calls for further evidence.
Their "Preliminary Determination" reads, "... we are concerned about the safety and noise impact of the operation on people. We wish to hear further evidence from the Civil Aviation Safety Authority (CASA) about its assessment of the safety of the operation and receive further submissions in relation to additional conditions to reduce the noise impact before we finally decide this matter."
A closer reading of the determination reveals that the Tribunal was quite dismissive of arguments put forward by GBRMPA as well as CASA.
One included a GBRMPA permit regulation in which the Authority must consider various effects on, "... nearby areas; and the likely effects of the proposed use on adjoining and adjacent areas,"
The AAT refer to GBRMPA's Legal Council Mr Warren Fellows who, 'conceded that the Connollys' home and the land, air and waters generally of Magnetic Island and Cleveland Bay are encompassed by the phrase "nearby area,"' but that, '"he argued that they did not constitute adjoining and adjacent areas"'.
In an almost Monty Python-like passage the Tribunal set out to provide dictionary definitions of these terms, as in, "The Macquarie Dictionary defines the relevant words as follows: Nearby: close at hand; not far off; adjacent; neighbouring; Adjoining: bordering; contiguous; Adjacent: lying near; close, or contiguous; adjoining; neighbouring." The Tribunal reasoned, "We can see no basis upon which the residential areas close to the waters of Horseshoe Bay or the other bays would not be "adjacent" to the Marine Park when they were well within its sight and sound,"
Noise was the major issue which led to the hearing and the Tribunal explained how it only found the sound measurements of one acoustics consultant, Garry Hall, of assistance. These recordings, "allows a comparison of the aircraft noise and the ambient noise level at particular times in two locations,"
According to the AAT, "At the two residences where he conducted noise monitoring, Mr Hall concluded that the aircraft noise was approximately 25 decibels above the noise levels of jet-skis and outboard dinghies; that is, subjectively six times louder. On the evidence, the noise generated by the aircraft is considerably louder than that of any other use of Horseshoe Bay from the perspective of those residences."
The AAT also refers to attempts to reduce the engine noise.