Management of declared Fish Habitat Areas: departmental policy position
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DPI&F Fish Habitat Management OperationalQueensland the(2008)
Policy FHMOP 002 Smart State
1
Management of declared
Fish Habitat Management Operational Policy FHMOP 002
Fish Habitat Areas:
departmental policy position
Kurt Derbyshire, Scott McKinnon, Rebecca Sheppard and Rebecca Batton
August 2008Fish Habitat Management Operational Policy FHMOP 002
Management of declared Fish Habitat
Areas: departmental policy position
Kurt Derbyshire, Scott McKinnon, Rebecca Sheppard and Rebecca Batton
August 2008ISSN 1326-6985 PR08–3885 FHMOP 002 (2008) First published October 2007, revised August 2008 This document may be cited as: FHMOP 002 Derbyshire, K, McKinnon, S, Sheppard R and Batton, R 2008, Management of declared Fish Habitat Areas: departmental policy position, Queensland Department of Primary Industries and Fisheries, Fish Habitat Management Operational Policy, 80 pp. This document replaces: FHMOP 002 Zeller, B and Beumer, J 1996, Departmental procedures for permit applications assessments and approvals to perform works or related activity in a declared Fish Habitat Area, Queensland Department of Primary Industries, Fish Habitat Management Operational Policy. The Department of Primary Industries and Fisheries (DPI&F) seeks to maximise the economic potential of Queensland’s primary industries on a sustainable basis. While every care has been taken in preparing this publication, the State of Queensland accepts no responsibility for decisions or actions taken as a result of any data, information, statement or advice, expressed or implied, contained in this report. © The State of Queensland, Department of Primary Industries and Fisheries 2008. Copyright protects this material. Except as permitted by the Copyright Act 1968 (Cwlth), reproduction by any means (photocopying, electronic, mechanical, recording or otherwise), making available online, electronic transmission or other publication of this material is prohibited without the prior written permission of the Department of Primary Industries and Fisheries, Queensland. Inquiries should be addressed to copyright@dpi.qld.gov.au (tel: +61 7 3404 6999), or: Director Intellectual Property Commercialisation Unit Department of Primary Industries and Fisheries GPO Box 46 Brisbane Qld 4001
Contents
1. Vision for declared Fish Habitat Areas 1
1.1 Policy principles 2
2. Background 3
3. How to use this document 5
4. Legislative framework 6
4.1 Declared Fish Habitat Area legislation 6
4.2 Declaration and management of Fish Habitat Areas 6
4.3 Principles of ecologically sustainable development in managing declared Fish Habitat Areas 7
4.4 Authorisation for works in declared Fish Habitat Areas 7
4.4.1 Declared Fish Habitat Area approvals 7
4.4.2 Restrictions on issue of approvals 9
4.4.3 Consideration of other legislation 9
4.4.4 Conditions on approvals 10
4.4.5 When approvals are not required 10
4.4.6 Fees, appeals and penalties 11
4.4.7 Other approvals 11
4.5 Works or activities not supported by declared Fish Habitat Area legislation 11
5. Consultation 12
6. Policy provisions 13
6.1 Scope of declared Fish Habitat Area management 13
6.1.1 Definition of ‘works and related activity’ 13
6.1.2 Clarification of declared Fish Habitat Area boundaries 14
6.2 Application of declared Fish Habitat Area management 15
6.2.1 Restoring the fish habitat or natural processes 16
6.2.2 Managing fisheries resources or fish habitat 17
6.2.3 Researching, including monitoring, or educating 18
6.2.4 Ensuring public health or safety 20
6.2.5 Providing public infrastructure to facilitate fishing 22
6.2.6 Providing subterranean public infrastructure 23
6.2.7 Constructing a temporary structure 24
6.2.8 Maintenance of structures 25
6.2.9 Constructing a permanent structure on tidal land or within the area 28
6.2.10 Depositing material for beach replenishment 29
7. Declared Fish Habitat Area offsets 31
8. References and further reading 32
Appendix 1: Specific policy interpretations for declared Fish Habitat Areas 34
SPI 1: Boardwalks 35
SPI 2: Bridges 37
SPI 3: Fishing platforms 38
SPI 4: Jetties, pontoons and boat ramps 40
SPI 5: Water impoundment structures 42
SPI 6: Dredging or extracting sediment 43
SPI 7: Industrial water inlet and outlet structures 45
SPI 8: Stormwater outlets 47
SPI 9: Marinas and port facilities 49
SPI 10: Moorings 51SPI 11: Navigation aids 54
SPI 12: Revetments, groynes and gabions 56
SPI 13: Overhead electricity and communication cables 58
SPI 14: Filling of lands 60
SPI 15: Signs 61
SPI 16: Mosquito control 63
SPI 17: Tidal aquaculture 65
SPI 18: Tenure 69
Appendix 2: Relevant legislation and policy 71
Appendix 3: Managing climate change impacts on fish habitats 72
Glossary 75
Acronyms 80DPI&F Fish Habitat Management Operational Policy FHMOP 002 (2008) 1
1. Vision for declared Fish Habitat Areas
The declared Fish Habitat Area network provides protection from development impacts to
the range of critical fish habitats required to sustain fisheries productivity in Queensland.
This operational policy supports the statutory role of the Department of Primary Industries and Fisheries (DPI&F)
in delivering the Queensland Government’s priority of protecting the environment for a sustainable future by
conserving and managing fish habitats. DPI&F seeks to ensure continued use of fisheries resources (including
fish, marine plants and other fish habitats) in a sustainable manner by adopting a strategic approach to maintain
and enhance fish habitats in Queensland. DPI&F’s roles in conserving and managing fish habitats for sustainable
fisheries are key drivers for the policy positions expressed in this document. This policy specifically provides
guidance for the management of declared Fish Habitat Areas (FHAs).
The declared FHA program is a key part of DPI&F’s strategy for anticipating and responding to pressures and
impacts on the state’s fish habitats and dependant fish stocks, including the challenges of increasing population
and climate change. The declared FHA program provides a statewide network of spatially defined areas that:
• p
rotect fish habitats critical to supporting sustainable fish stocks for commercial, recreational and traditional
fisheries
• provide for community access, particularly to fishing grounds
• provide strategic locations for education and research about fish and fish habitats.
By conserving, managing and enhancing the declared FHA network, we recognise the interconnectedness of the
mosaic of fish habitats throughout the state that support fish stocks and fisheries. The ongoing program of FHA
declaration aims to adequately represent the range of Queensland’s fish habitats and meso-scale bioregions1 to
ensure the state’s critical fish habitats are protected from current and future development pressures. Maintaining
the integrity of the declared FHA network is fundamental to its effectiveness. Unavoidable authorised impacts on
declared FHAs may require offsets to maintain network integrity and sustainability.
This operational policy is designed to help secure the vision for declared FHAs by:
• interpreting legislation in relation to declared FHA boundary definition
• defining activities that are subject to declared FHA management
• guiding the application of legislation for specific works and related activities within declared FHAs. To achieve
this, assessment criteria for development works or activities in declared FHAs must meet the objectives of the
Fisheries Act 1994 (Fisheries Act).
1 As defined by the Integrated Marine and Coastal Regionalisation of Australia Version 4.0 (Commonwealth of Australia, 2006).2 Management of declared Fish Habitat Areas: departmental policy position 1.1 Policy principles To achieve the vision for declared FHAs, the following overarching policy principles (PPs) apply to management of these areas: PP1 Proper management of declared FHAs through application of the principles of ecologically sustainable development (ESD)2 is of critical importance to fisheries production and to the fishing industry sectors and the general community. PP2 Adoption of a risk management approach for declared FHAs through use of self-assessable codes for low impact development works will provide for retention of most fish habitat values and function while minimising bureaucracy. PP3 Public awareness of the protection, diversity, role and value of Queensland’s declared FHA network should be the target of an integrated education, extension, research and regulatory approach.3 2 See also section 4.3 ESD principles in declared FHA management. 3 This is delivered through DPI&F initiatives such as the declared FHA communication plan.
DPI&F Fish Habitat Management Operational Policy FHMOP 002 (2008) 3 2. Background The conservation and management of fish habitats are fundamental to the sustainability of fish stocks and fisheries. Proactive fish habitat management continues to be an essential element of the Queensland Government strategy for sustainable fisheries management. Queensland fisheries legislation has long provided for the protection and management of fish habitats. In early legislation (Fish and Oyster Act 1914), habitat protection had a relatively narrow focus. Protection was only provided for ‘mangroves and other timber growing upon any part of the foreshore’ to ensure that the timber resource for oyster spat collecting was preserved. As the importance of fish habitats has become more broadly recognised and development pressures on these habitats has increased, fisheries legislation has evolved to provide a broader and more effective framework for the sustainable management of fish habitats. Management of fish habitats is an integral part of the overall fisheries management strategy in Queensland. The Fisheries Act provides for: • management and protection of fish habitats • management of commercial, recreational and traditional fishing • prevention, control and eradication of disease in fish • management of aquaculture • managing the shark control program in waters adjacent to coastal swimming beaches. The fish habitat management provisions of the Fisheries Act encompass the: • protection of marine plants • declaration and management of declared FHAs • restoration of disturbed fish habitat • management of waterway barriers and fish passage. The marine plant provisions of the Fisheries Act protect all tidal and intertidal plants, irrespective of whether they are on private or public land. Protection of this vegetation is essential to fisheries management and is based on sound scientific principles (i.e. marine plants are recognised as the basis of the estuarine food chain and serve a variety of other fish habitat functions). Policy guidance for marine plant management is provided in the Fish Habitat Management Operational Policy FHMOP 001 Management and protection of marine plants and other tidal fish habitats. Marine plants are, however, only part of the interrelated marine ecosystem. The declared FHA legislation complements marine plant protection by allowing for the declaration, conservation and management of defined areas of key fish habitat as declared FHAs. Within a declared FHA, the integrity, structure and fish habitat values of all habitats (vegetated and unvegetated) are given significant protection from physical disturbance. The declared FHA concept focuses on: • protecting, managing, linking and including the mosaic of fish habitat types within an individual location and • strategic repetition of these processes at locations along the Queensland coast to create a comprehensive, adequate and representative network of protected fish habitats. The declared FHA network, then, provides protection from development for key areas of fish habitats that sustain the fish on which commercial, recreational and traditional fisheries rely. In addition, the Fisheries Act provides for the maintenance of community use of declared FHAs, particularly for fishing, and recognises the importance of these areas for education and research. The declared FHA network also protects cultural heritage in the form of historic fishing and harvesting activities (e.g. middens). The historical focus of the declared FHA network on protection of estuarine and coastal fish habitats has been a direct response to the ad hoc residential, industrial, agricultural and tourist development pressures in coastal areas. Approximately 85% of Queensland’s population currently lives directly adjacent to the coastal zone. The declared FHA network and its management provide an important balance to these coastal development pressures by ensuring strategic protection for habitats that sustain fish stocks and fisheries. These habitats directly support up to 75% of the state’s commercially landed seafood (Quinn 1992) and a significant proportion of the species targeted by recreational and Indigenous fishers. The focus of the declared FHA network allows the community to
4 Management of declared Fish Habitat Areas: departmental policy position protect fish habitats at its ‘doorstep’ while recognising the rights of urban dwellers to have access to fishing. At the same time, inclusion of some remote areas provides a comprehensive, regionally representative network that also anticipates the challenge of future development pressure. Management of declared FHAs must be responsive to the impacts of climate change4 to maintain the resilience and effectiveness of the network and ensure that protection of the state’s key fish habitats is maintained. 4 See Appendix 3: Managing climate change impacts on fish habitats.
DPI&F Fish Habitat Management Operational Policy FHMOP 002 (2008) 5 3. How to use this document This policy provides guidance for the consistent management of declared FHAs. It is the primary policy reference for the provision of advice on declared FHA management and for the assessment of applications for works or related activities within declared FHAs. Assessment officers are required to give appropriate weight to this policy when assessing applications and/or providing advice. Discretion may be exercised in applying this policy based on the merits of the individual case. Where factors sufficient to justify departure from policy exist, these must be carefully documented by the assessing officer. This document replaces and updates FHMOP 002 Departmental procedures for permit applications assessment and approvals to perform works or related activity in a declared Fish Habitat Area (Zeller & Beumer 1996). The policy was updated in 2007 to reflect legislative changes since 1996 and reformatted to allow for enhanced policy interpretation, including through the addition of specific policy interpretations (SPIs). The current version of the policy (August 2008) has been revised to reflect the relevant provisions of the Fisheries Regulation 2008 (Fisheries Regulation). It is an administrative document that seeks to be compatible with relevant legislation (see appendix 2). The policy vision for the management of declared FHAs is outlined in section 1 of this document. A discussion of the legislative setting and administrative processes for declared FHA management appears in section 4. Section 6 clarifies the definition of declared FHA boundaries and activities that are considered ‘works’, and provides a policy position for each ‘prescribed development purpose’. SPIs for particular works and related issues are provided in appendix 1. All attempts have been made to provide accurate information in this policy. However, information contained within this document may be subject to change at any time. Amendments will be made where necessary and practical.
6 Management of declared Fish Habitat Areas: departmental policy position
4. Legislative framework
4.1 Declared Fish Habitat Area legislation
The Fisheries Act and the Fisheries Regulation provide for the declaration and management of declared FHAs.
However, works in declared FHAs require authorisation under both the Fisheries Act and the state’s overarching
development assessment legislation, the Integrated Planning Act 1997 (IPA).
The main purpose of the Fisheries Act (and its Regulation) is:
to provide for the use, conservation and enhancement of the community’s fisheries resources and fish habitats
in a way that seeks to—
(a) apply and balance the principles of ecologically sustainable development; and
(b) promote ecologically sustainable development.
The Fisheries Act specifies that ESD means:
using, conserving and enhancing the community’s fisheries resources and fish habitats so that—
(a) the ecological processes on which life depends are maintained; and
(b) the total quality of life, both now and in the future, can be improved.
The IPA, the Integrated Planning Regulation 1998 (IP Regulation) and associated amending Acts provide a legislative
framework to integrate planning and development assessment in Queensland. As part of achieving integrated
development assessment, works in declared FHAs are subject to approval under IPA, according to its integrated
development approval system (IDAS).
Declared FHA decision makers must also have regard to the Coastal Protection and Management Act 1995 (the
Coastal Act), the Environmental Protection Act 1994, the Marine Parks Act 2004 and the Wild Rivers Act 2005 where
relevant (see section 4.4.3).
4.2 Declaration and management of Fish Habitat Areas
The Fisheries Act provides the head of power for FHA declaration and management. Section 120 provides for an
area of fish habitat to be declared as an FHA, while section 122 provides that works or related activity may not be
unlawfully performed, or caused to be performed, in a declared FHA. Fish habitat includes land, waters and plants
associated with the life cycle of fish, and includes land and waters not presently occupied by fisheries resources.
Declared FHA boundaries are defined through a combination of chapter 12, part 1 of the Fisheries Regulation and
(for each area) the relevant FHA plan, and the relevant section of schedule 3 of the Fisheries Regulation. A detailed
discussion of declared FHA boundary issues is provided in section 6.1.2 of this document.
FHAs are declared to include a ‘management A area’ and/or a ‘management B area’ as indicated on the relevant FHA
plan. Management A areas provide a higher level of protection than management B areas, through the provisions of
sections 214 and 215 of the Regulation (see section 4.4.2 of this document). This distinction in management levels
provides management flexibility for the FHA network. Management A areas are declared to protect key fish habitats
and impose stricter management measures. Management B areas are declared to protect important fish habitats
while allowing for a less stringent management approach, particularly where existing or planned uses would be
prohibited in a management A area. Management B areas are also used as a buffer adjoining management A areas,
and thereby provide enhanced protection for these key fish habitats.
There is provision under section 32 of the Fisheries Act to create a management plan for a declared FHA. Section 36
provides examples of what a management plan may deal with, including:
• boundaries of, and buffer zones for, a declared FHA
• regulation of development in a declared FHA
• how a declared FHA is to be managed or restored
• research, education and environmental issues
• enforcement.
At the effective date of this policy, no management plans have been developed for declared FHAs.DPI&F Fish Habitat Management Operational Policy FHMOP 002 (2008) 7
DPI&F’s fisheries management responsibilities for declared FHAs under the Fisheries Act do not extend to
undertaking ‘on the ground’ activities such as provision of infrastructure and facilities, weed control, pest
management, etc. FHA declaration does not constitute a form of tenure over, and DPI&F is not a ‘tenant’ of, the
subject lands.
Activities in declared FHAs such as those described above are undertaken by the responsible agency—usually
local government or Biosecurity Queensland within DPI&F—under appropriate authorisation where required. Pest
control activities that may be conducted in declared FHAs are defined in the Code of Practice: FHACoP01 The lawful
use of physical, pesticide and biological controls in a declared Fish Habitat Area, prepared under section 119 of the
Fisheries Act.
4.3 Principles of ecologically sustainable development in managing declared Fish
Habitat Areas
The Fisheries Act lists nine principles of ESD5 that are fundamental to its administration. It requires that each
principle is given the relative emphasis appropriate to the circumstances. The appropriate application, balancing
and promotion of these principles is required in managing declared FHAs, including in the assessment of
development applications. The provisions of this policy reflect this requirement.
In addition, the required balancing of these ESD principles also occurs as part of the processes, negotiations
and agreements required to declare an area as an FHA. An FHA is declared by government with the specific
intent of focusing the future management of the area on maintaining its fish habitats and processes for fisheries
sustainability. Prior to FHA declaration, the proposal is the subject of extensive community and stakeholder
consultation and negotiation (refer to FHMOP 006 Fish Habitat Area declaration and review—departmental
consultation procedures). This process provides the framework for open debate and consideration of the ecological,
social and economic implications and benefits of the declared FHA proposal, and methods to address issues of
concern (e.g. negotiated boundary modification, application of the available management levels6).
The balancing of ESD principles is delivered through the inclusion of specific areas as part of a declared FHA
and the intentional exclusion of other areas. Broad stakeholder support for a proposed declared FHA is a strong
indicator that balance of the ESD principles has been achieved. The results of consultation and negotiation are
then considered by government and, if supported, declaration is made through formal amendment to the fisheries
legislation. This formal government endorsement is recognition that the proposal has balanced ESD objectives,
and the resultant area then becomes an integral component of regional ESD planning and a key component of the
declared FHA network.
The use of buffer zones is a key means of maintaining ecological processes and enhancing the fisheries resources
of the declared FHA network. FHG 003 Fish habitat buffer zones provides recommendations on buffer widths and
information to assist in the designartion of site-specific buffers.
Declared FHAs are a strategic, long-term fisheries management arrangement. Over time, the ecological, social or
economic objectives within a region many change, requiring revision of an area (via extension or minor reduction in
size) to reflect this change. Provisions and formalised processes exist to address these requirements through FHA
boundary amendment (refer to FHMOP 006 Fish Habitat Area declaration and review—departmental consultation
procedures).
4.4 Authorisation for works in declared Fish Habitat Areas
Works or related activities in declared FHAs may be authorised under self-assessable codes (see section 4.4.5)
or by issue of approvals. The following sections discuss the legislative framework for authorisation of works in
declared FHAs.
4.4.1 Declared Fish Habitat Area approvals
There is a two-step process for approval to conduct works in declared FHAs:
1) issue of a resource allocation authority (RAA) under the Fisheries Act for a prescribed development purpose,
followed by
5 See glossary.
6 The two available declared FHA management options (A or B) are clearly defined at the commencement of consultation to ensure there is no
misconception regarding the implications and benefits of each management option.8 Management of declared Fish Habitat Areas: departmental policy position
2) issue of a development approval (DA) under IPA for building and/or operational works if it is not self-assessable
development.
DAs for which the DPI&F is the assessment manager or a concurrence agency under IPA are known as ‘fisheries
development approvals’ (schedule dictionary of the Fisheries Act).
Note that works authorised under a self-assessable code do not require a fisheries DA, but may require an RAA (see
section 4.4.5).
RAAs provide allocation of, or entitlement to, the resource to allow application to be made for a fisheries DA, as
required under section 76B of the Fisheries Act. In addition, schedule 10, item 13 of the IP Regulation defines
declared FHAs as a ‘state resource’ and requires evidence (an RAA) that the chief executive is satisfied the
development is consistent with an allocation of, or an entitlement to, the resource.
An RAA is issued to the individual, and defines the purpose and location of the works. RAA conditions describe the
type of activity and where the activity is to take place. RAAs set the boundaries for development but they do not
authorise any works (these are authorised by the DA). The requirement for an RAA recognises that declared FHAs
are an important state resource managed for fisheries purposes.
More than one RAA may be issued over a particular area to enable different applicants to undertake different
activities. For example, where an RAA has been issued to an applicant for building a jetty in a declared FHA, an RAA
could be issued to another applicant to undertake research works within the same location (if not covered under a
self-assessable code).
In addition, an authority holder only needs one authority to conduct a particular activity (section 209 of the
Fisheries Regulation). For example, tidal aquaculture in a management B area would only require a single RAA,
rather than two separate RAAs for a prescribed development purpose within a declared FHA and for prescribed
aquaculture development. Note, however, that this policy does not allow for tidal aquaculture in declared FHAs
except under a specific exemption (see SPI 17, Tidal aquaculture).
Declared FHA RAAs are usually issued for a period of three years to allow for assessment of development
applications and for approved works to be completed. However, there may be specific circumstances where three
years is not an appropriate period, and this should be considered on a case-by-case basis. An RAA must be current
for the entire period during which development works are undertaken.
It is possible that an RAA may be required to enable application for DA under other legislation even though a
fisheries development approval is not required. For example, works that are authorised under a self-assessable
code in a declared FHA but that are also tidal works7 under the Coastal Act would require an RAA to enable
application for a development approval for tidal works. In this case, the RAA would provide evidence of an
entitlement to the resource (the declared FHA) to allow the tidal works application.
The DA authorises the works to take place, and its conditions define how they will take place (e.g. best practice
construction methods). The DA requires Native Title notification by the assessment manager, except on freehold and
certain leasehold lands, as the grant of the approval for works is regarded as a ‘future act’8 under the Native Title
Act 1993 (Commonwealth). An application for a DA under IPA for building and/or operational works in a declared FHA
cannot be made unless an RAA is held (section 76B of the Fisheries Act). Fisheries development approvals apply to
the land on which development is to occur, and are issued to the applicant who may or may not be the land owner.
Despite the ‘two-step’ process described above, in practice the information required to properly assess an RAA
application (see section 4.4.2) often incorporates all of the elements of an application for operational works. This
allows for a single, combined assessment of the RAA and the DA.
Large-scale coastal development proposals that have state government support may be designated as a ‘significant
project’ and/or a ‘prescribed project’ under the State Development and Public Works Organisation Act 1971. They
may also require public notification and the preparation of an environmental impact statement for the Coordinator
General (CoG). For prescribed projects, the CoG may issue a decision maker with a ‘progression notice’ (i.e. a
directive to complete an administrative process within a specified timeframe), a ‘notice to decide’ (i.e. a directive
to make a decision on a development application within a specified timeframe) and/or a ‘step in notice’. In the
latter case, the CoG takes over the assessment and decision-making process, while the original decision maker is
required to provide assistance. In these circumstances, any advice or assistance from DPI&F should be based on the
intent of the Fisheries Act and the provisions of this and any other relevant fish habitat management policies.
7 Refer to the state agency Memorandum of Agreement for co-ordination and provision of evidence of resource entitlement for tidal works,
including prescribed tidal works, which, at the effective date of this policy, requires inter-agency consultation in the granting of resource
entitlements for tidal works.
8 NRW Indigenous Services policy.DPI&F Fish Habitat Management Operational Policy FHMOP 002 (2008) 9
4.4.2 Restrictions on issue of approvals
There are legislative constraints on the purposes for which approvals for works in declared FHAs may be granted.
These limitations are more severe for management A areas than for management B areas, reflecting the higher level
of protection afforded to the former.
Section 215 of the Fisheries Regulation broadly outlines the restrictions on the issue of RAAs and the matters that
must be taken into account in deciding an application:
• An RAA may only be issued in a declared FHA for a prescribed development purpose.
• Regard must be had to the effect of the development proposal on maintenance of:
community use of the area (particularly fishing activities)
the natural condition of fish habitats and natural process in a management A area
current fish habitat values and functions of a management B area.
The prescribed development purposes for which an RAA in a declared FHA may be issued are specified in schedule
214 of the Fisheries Regulation as meaning any of the following in, or directly affecting, the area:
a) restoring the fish habitat or natural processes
b) managing fisheries resources or fish habitat
c) researching, including monitoring, or educating
d) ensuring public health or safety
e) providing public infrastructure to facilitate fishing
f) providing subterranean public infrastructure if the chief executive is satisfied the surface of the area can be
restored, after the completion of the works or activity, to its condition before the performance of the works or
activity
g) constructing a temporary structure
h) maintaining a structure that was constructed before the area was declared to be a FHA under the Act
i) maintaining a structure, other than a structure mentioned in paragraph (h), that has been lawfully constructed
j) for a part of the area that is a management B area:
I. constructing a permanent structure on tidal land or within the area; or
II. depositing material for beach replenishment in the area.
An RAA may not be issued for purposes other than those listed above (e.g. an RAA cannot be issued for collection of
dead marine wood in a declared FHA).
4.4.3 Consideration of other legislation
Section 60A of the Fisheries Act requires that in deciding an application for an RAA, the chief executive must ‘have
regard to’ the impact of the development on each of the following:
• c oastal management under the Coastal Act. This includes having regard to the State Coastal Management Plan
(and subsidiary Regional Coastal Management Plans), which is a statutory instrument under the Coastal Act and
has the effect of a state planning policy for development assessment under IDAS
• the protection of Queensland waters as required under the Environmental Protection Act 1994
• the management of marine parks under the Marine Parks Act 2004.
‘Have regard to’ means that the relevant provisions of the specified statutory instruments must be given
appropriate weight in deciding an application for an RAA. In some circumstances this may require consultation with
the agencies responsible for the relevant legislation.
Where a declared FHA is in a wild river area declared under the Wild Rivers Act 2005, decisions regarding
development applications must comply with any applicable code mentioned in the wild river declaration for the area
(section 76DC of the Fisheries Act).10 Management of declared Fish Habitat Areas: departmental policy position
4.4.4 Conditions on approvals
In addition to the Fisheries Regulation specifying the purpose for which approvals may be issued in a declared
FHA, the Fisheries Act provides guidance on the approval conditions that may be imposed. The chief executive may
generally impose conditions on fisheries DAs that are appropriate for advancing the objectives of the Fisheries Act
(section 76I) as long as these conditions are reasonable and relevant according to section 3.5.30 of IPA. Conditions
that cannot be imposed are specified under section 3.5.32 of IPA.
Further, section 76L of the Fisheries Act provides, without limiting 76I, conditions that may be imposed on fisheries
development approvals for declared FHAs (or marine plant disturbance). Approval conditions about one or more of
the following may be imposed:
• disturbance to—
fisheries resources or a fish habitat; or
commercial, recreational and Indigenous fishing
• the type of works that may be undertaken within or adjacent to a declared FHA
• buffer zones between the development and fisheries resources, a fish habitat, or a declared fish habitat area
• the timing of the development, having regard to fish migration, fish spawning and the flowering and fruiting of
marine plants
• mitigation measures for any loss of fish habitat
• the management of the impact of acid sulfate soil on fisheries resources or a fish habitat
• monitoring the impact of the development on fisheries resources or fish habitat within or adjacent to the
development area.
In other words, conditions that would normally be considered for declared FHA approvals are those listed in
section 76L; however, section 76I allows other conditions to be imposed where these advance the objectives of the
Fisheries Act and are reasonable and relevant.
4.4.5 When approvals are not required
Normal community use, legal fishing and boating within a declared FHA do not require an RAA or a DA (see section
6.1.1).
Fisheries development approvals are not required for minor, low-impact works in declared FHAs that are authorised
under a self-assessable code. Self-assessable development is described in schedule 8, part 2 of the IPA and the
relevant codes are listed in chapter 15, part 3 (‘Codes for IDAS’) of the Fisheries Regulation:
• M P02 Maintenance works on existing lawful structures (other than powerlines and on-farm drains) in a declared
Fish Habitat Area or involving the removal, destruction or damage of marine plants
• MP04 Maintenance works on powerlines and associated powerline infrastructure in a declared Fish Habitat Area or
involving the removal, destruction or damage of marine plants
• MP05 Works for educational, research or monitoring purposes in a declared Fish Habitat Area or involving the
removal, destruction or damage of marine plants
• MP06 Minor impact works in a declared Fish Habitat Area or involving the removal, destruction or damage of
marine plants.
Note, however, that MP06 specifically requires issue of an RAA for certain works in declared FHAs authorised under
the code. These works are listed in schedule 1, table 3 of the code (see section 636 of the Fisheries Regulation).
IPA and the Fisheries Act allow for emergency works to be carried out without the need for approvals. See section
6.2.4 Ensuring public health or safety for discussion of emergency works in declared FHAs.
Under section 14(1) of the Fisheries Act, an Aborigine or Torres Strait Islander may take, use or keep fisheries
resources, or use fish habitats, under Aboriginal tradition, or Island custom. In these circumstances, approvals are
not required for traditional activities in a declared FHA (e.g. for collection of mangrove timber to construct a spear
for traditional hunting and fishing purposes).
Section 119 of the Fisheries Act provides for Codes of Practice (CoPs) to be prepared. Acceptable pest control
measures that may be conducted in declared FHAs are defined in FHACoP01 The lawful use of physical, pesticide and
biological controls in a declared Fish Habitat Area. Activities defined in FHACoP01 do not constitute ‘development’DPI&F Fish Habitat Management Operational Policy FHMOP 002 (2008) 11 under IPA do not require approval9. Note that section 621 of the Fisheries Regulation prohibits unlawful weed removal, pesticide use and biological control of a pest in a declared FHA and outside a declared FHA if doing so is likely to affect a fish habitat in the area. Such activities conducted outside the provisions of FHACoP01 are unlawful. There are a number of development activities for which approvals under the Fisheries Act and IPA are not required, including: • w here a collection authority to take native biological material from within a declared FHA has been issued under the Biodiscovery Act 2004 • works in respect of promoting or staging a motor racing event where these works are within a ‘declared area’ under the Gold Coast Motor Racing Events Act 1990. It is unlikely at the effective date of this policy that such works would be proposed for this event in declared FHAs in the Gold Coast region • development authorised under the Mineral Resources Act 1989 (MRA). However, conditions about mining in a declared FHA may be imposed on an environmental authority under the Environmental Protection Act 1994, as this would consititute a ‘level 1 mining project’ under that legislation. Specific policy advice should be sought when liaising with the Environmental Protection Agency (EPA) regarding mining activties in declared FHAs. 4.4.6 Fees, appeals and penalties Information on application fees, appeals against decisions, assessment of development applications during breach proceedings, and penalties for unauthorised works are discussed in FHMOP 001 Management and protection of marine plants and other tidal fish habitats. 4.4.7 Other approvals Note that additional approvals from other local, state or Australian Government agencies may be required for works in declared FHAs depending on the nature of the activity. See appendix 2 for a list of relevant legislation. 4.5 Works or activities not supported by declared Fish Habitat Area legislation Section 214 and 215 of the Fisheries Regulation specifically define the purposes for which works or related activity may be permitted within a declared FHA and the restrictions on these. The effect of these provisions is that works or activities for a purpose that is not listed cannot be authorised within a declared FHA, or be subject to FHA management. For works or associated activities that are necessary for community benefit and cannot be authorised within a declared FHA, a proponent may wish to explore the option of boundary amendment. Details on the process for declared FHA boundary amendment are provided in FHMOP 006 Fish Habitat Area declaration and review— departmental consultation procedures. Boundary amendment of a declared FHA may require significant justification, support from the community and relevant stakeholders and amendment to the Fisheries Regulation. 9 FHACoP01 does not authorise control of mosquitoes through the construction of runnels.
12 Management of declared Fish Habitat Areas: departmental policy position 5. Consultation DPI&F considers community and stakeholder consultation to be an essential component of developing an acceptable and effective declared FHA. The FHA declaration process involves two discrete phases of community and stakeholder consultation. The consultation period also provides an opportunity to focus community interest onto fisheries issues and improve collective understanding of the value of fish habitat and the links between habitat and the seafood we consume or target for recreation (McKinnon & Sheppard 2001). In addition to consultation during the declaration process, consultation with stakeholders may also be appropriate in the management of existing declared FHAs. This may be especially important where a management decision, development proposal, etc. will affect the interests of particular stakeholders or groups (e.g. fishing industry group, adjacent landholder, local community group, etc.). The extent of consultation with particular stakeholders on declared FHA management decisions should be assessed on a case-by-case basis.
DPI&F Fish Habitat Management Operational Policy FHMOP 002 (2008) 13
6. Policy provisions
The provisions of this policy are outlined in the following sections:
• scope of declared FHA management (section 6.1)
• application of declared FHA management (section 6.2).
In addition, appendix 1 contains SPIs for key structures/works and issues related to declared FHA management.
6.1 Scope of declared Fish Habitat Area management
The determination of whether or not works and/or an activity is subject to declared FHA management is guided by
section 122 of the Fisheries Act, which states that ‘a person must not unlawfully perform, or cause to be performed,
works or related activity in a declared fish habitat area’.
The interpretation of section 122 relies on:
• definition of what activities are captured by the term ‘works’
• definition of the physical area that is included within a declared FHA, including clarification of the height and
depth of the area.
These issues are dealt with separately below.
6.1.1 Definition of ‘works and related activity’
There is no definition of ‘works or related activity’ in the Fisheries Act, nor in the Acts Interpretation Act 1954.
Section 1.3.5 of IPA provides a definition of ‘building work’10 that applies in declared FHAs; however, the definition
of ‘operational work’ in relation to declared FHAs is merely ‘performing work in a declared fish habitat area’. The
meaning of ‘work’ in the The Macquarie dictionary is very broad and would encompass day-to-day recreational
activities that are well beyond the intent of declared FHA management (e.g. recreational use of a beach).
For the purposes of this policy, ‘works and related activity’ that requires authorisation to ‘interfere’11 with the fish
habitats within a declared FHA is defined as:
• building, placing or maintaining a structure—includes in-situ sampling gear (e.g. for water quality monitoring)
• excavating substratum
• filling land or raising substratum level
• bank stabilisation or erosion control
• removing or disturbing living or dead vegetation—does not include unintentional disturbance from normal
community use, boating and legal fishing activities
• planting vegetation
• dumping or depositing of matter
• application of pesticides/biological control agents (authorised through FHACoP01 The lawful use of physical,
pesticide and biological controls in an FHA)
• aquaculture12 (e.g. cage culture of fish).
Any works and related activities that are captured within the above definition, or related to these, are subject to FHA
management and require authorisation before these may be carried out within a declared FHA.
Note that taking bait with a digging implement is effectively prohibited in a declared FHA as it constitutes an offence
under section 620 of the Fisheries Regulation, and there is no provision in the legislation for it to be conducted
lawfully.
The following activities are considered part of the normal, legal community use and enjoyment of the area and are
not considered as works and do not require authorisation within a declared FHA:
10 Most applications for works in a declared FHA are for works on tidal land, and therefore are tidal works, a form of ‘operational works’. Works in
a declared FHA that are ‘building works’ are likely to be the construction of structures on non-tidal land (e.g. a boardwalk, birdhide or footpath).
11 See section 216 of the Fisheries Regulation.
12 See SPI 17 Tidal aquaculture for detail on a policy exemption under specific circumstances for this activity.14 Management of declared Fish Habitat Areas: departmental policy position • p lacing or using a registered vessel, a vessel exempt from registration requirement by Queensland Transport (QT), an anchor, a vehicle, legal fishing apparatus and minor temporary structures used as part of normal community use of the area (e.g. fishing chair, beach umbrella) • yabby pumping, anchor damage and other substrate disturbance resulting from legal boating and fishing activities • minimal temporary excavations as part of normal community use of the area. Examples include digging by hand for worms (i.e. not using a digging implement) or a child digging on the beach • filling or raising the substratum level as part of normal community use of the area (e.g. a child building a sand castle) • removing or disturbing vegetation through unintentional disturbance from normal community use, boating and legal fishing activities. 6.1.2 Clarification of declared Fish Habitat Area boundaries Lateral boundaries Declared FHA boundaries are defined through a combination of sections 615 to 619 of the Fisheries Regulation, and (for each area) the relevant FHA plan and the relevant section of schedule 3 of the Fisheries Regulation. It is important to consult all of these provisions to determine the boundaries of a declared FHA, and in particular note that: • Section 615 provides that the area shown on a plan is a declared FHA. This means that all lands, whether tidal, freshwater or terrestrial (see policy position below on management of terrestrial lands within declared FHAs) shown within the outer boundary may be included in a declared FHA, subject to sections 616 to 619. Policy position on management of terrestrial lands in declared FHAs Note that certain development on terrestrial land within a declared FHA that would not normally be approved on fish habitats within the area may be considered if: • There is an applicable prescribed development purpose for the proposed development. • There is no reasonable alternative site for the proposed development. • The land has no fish habitat value. • The development will not affect fish habitat values in the area. • Appropriate buffers from fish habitats in the area will be implemented. Example: A public boat ramp car park on terrestrial land within a declared FHA that meets the above requirements. • S ection 616(3) provides that certain lands outside the boundary shown on the plan are included in FHAs declared under part 1 (‘Areas including particular tidal land’) of schedule 3. For these declared FHAs, all lands shown on the plan are included, unless a particular area is specified as excluded. Any adjoining tidal lagoons, lakes and waterways outside the plan boundary are also included. This provision was designed to include tidal lands that may be difficult to accurately indicate on a plan for a declared FHA. Because of this provision, precise declared FHA boundaries need to be determined on site, particularly where unauthorised disturbance is suspected. The ongoing process of re-declaring existing FHAs to cadastral boundaries wherever possible will eventually remove the need for part 1 of schedule 3. • For FHAs declared in part 2 (‘Areas within outer boundaries on fish habitat area plans’) of schedule 3, land that is unallocated state land (USL) or national park within the boundaries shown on the plan is included in the area, subject to any specific exclusion of lands (see below). Lands other than USL or national park may be included in a declared FHA only if specified as such in schedule 3, column 2 of the Fisheries Regulation (see also SPI 18 Tenure). Unlike declared FHAs in part 1, lands outside the boundary are not included in the area (section 616(4)). • T he Fisheries Regulation may specify in schedule 3, column 2, lands that are excluded from a declared FHA even though these are shown within the outer boundary of the plan. Such exclusions may include particular parcels or parts (e.g. the non-tidal parts) of USL, national park or other tenured lands. Lands excluded from declared FHAs may also be described on an FHA plan. It is especially important to check for any excluded lands when considering whether proposed works are subject to declared FHA management.
DPI&F Fish Habitat Management Operational Policy FHMOP 002 (2008) 15 • N avigation channels marked with navigation aids are excluded from all declared FHAs (section 617(1)(a)). If the location of a marked navigation channel should change, the boundary of the declared FHA changes accordingly (see also SPI 11 Navigation aids). • The precise location of declared FHA boundaries ‘on the ground’ may depend on the nature of the cadastral boundaries to which these are tied. While the intention is to tie declared FHA boundaries to surveyed cadastral boundaries, this may not always be possible (e.g. in cases where doing so would result in lands unsuitable for declared FHA management being incorporated into the FHA). In cases where declared FHA boundaries are attached to unsurveyed or natural (either surveyed or unsurveyed) cadastral boundaries, staff should seek policy advice regarding boundary definition. Declared Fish Habitat Area height and depth The height and depth of declared FHAs are not specified in the legislation. These boundary dimensions require policy clarification, particularly in relation to the location of activities such as placement of powerlines that span an area, and of underground cables placed below the substrate surface using directional drilling techniques. For the purposes of this policy: • Declared FHAs are considered to have no height limit and most structures in the airspace of the area are subject to declared FHA management. An exception to this is provided by section 618 of the Fisheries Regulation, which excludes from declared FHAs cables that span the air space and that are not in contact with land, water or plants within the area, including the air space that is to be occupied by a proposed cable. This provision recognises that such cables have no impact on the fish habitats within a declared FHA. To clarify this provision, the Fisheries Regulation includes ‘an overhead electric line or telecommunication cable’ as examples of a cable • The depth of a declared FHA for management purposes is 2 metres, measured vertically beneath the substratum surface of the area. This 2 metre depth ensures that mangrove root systems and the benthic infaunal community are included within the declared FHA and protected from disturbance. This policy allows for infrastructure to be placed under declared FHAs using directional drilling without authorisation where the works are located at more than 2 metres below the substrate surface. 6.2 Application of declared Fish Habitat Area management Decisions regarding the issue or refusal of a declared FHA RAA must comply with section 215 of the Fisheries Regulation. In addition, proposals for works in a declared FHA are also considered in terms of their compatibility with this policy (see section 3 for how to use this document), other fish habitat management operational policies, fisheries guidelines and previous decisions of the Fisheries Tribunal and the Planning and Environment Court. The development proposal must be in keeping with the principles of fisheries policies or demonstrate special circumstances to show why policies should not be applied or are to be varied. The following sections of this policy interpret sections 214 and 215 of the Fisheries Regulation to guide the consistent assessment of applications to conduct works in declared FHAs. Each prescribed development purpose for declared FHAs is discussed separately in the following sections. Rights or interests Proponents wishing to conduct works in declared FHAs should have a level of ‘rights’ (or interests) that is greater than those of other members of the community. Proposed works may impact on the fish habitat and fisheries values of the declared FHA and restrict access of the general community to the area. Examples of demonstrated rights or related interests to be considered include: • the proponent owns the property directly adjacent to the proposed location of a structure • the works are required to exercise the existing ‘as of right’ or approved use of the land (e.g. works conducted on a term lease that was included in a declared FHA with the consent of the tenure holder) • local government is the proponent and the proposed works are to be conducted on behalf of the community (e.g. on a public foreshore) • the proponent can demonstrate precedents, previous decisions or prior DPI&F approvals for the proposed works or activities. Note that a proponent who holds an RAA to interfere with a declared FHA by definition has the right to apply for a DA for the works. Previous issue of an RAA that has lapsed may also be a consideration.
16 Management of declared Fish Habitat Areas: departmental policy position 6.2.1 Restoring the fish habitat or natural processes The Fisheries Regulation clarifies the meaning of this prescribed development purpose through inclusion of the following examples: • reinstating tidal profiles for allowing restoration of marine plant communities • restoring tidal flows and inundation patterns. Background Restoration of fish habitat or natural processes within a declared FHA may be required where: • natural events have caused disturbance (e.g. severe mangrove loss from storm damage) or • where there has been human interference but the person responsible is unable to be identified. Where the person responsible can be identified, section 125 of the Fisheries Act provides for issue of a Restoration Notice to restore fish habitats.13 Where the unauthorised disturbance or degradation constitutes development, section 4.3.11 of the IPA provides for issue of an Enforcement Notice to refrain from and remedy the development offence.14 Restoration is the process of returning a site to an agreed pre-existing natural condition. From a declared FHA perspective, this means restoring natural substrate profiles and processes to a level where natural succession will continue the recovery process. Projects that aim to deal with disturbance from human interference may involve both a specific restoration component and an associated component that prevents or manages the factors that caused the impacts. Restoration works may not necessarily be required to achieve satisfactory restoration of disturbed fish habitats within declared FHAs. Restoration achieved through natural regeneration of habitats significantly reduces the likelihood of impacting upon undisturbed areas (e.g. seed stock areas) during restoration works. Restoration of habitats15 and natural processes is an issue that often requires multidisciplinary expertise. Peer review from relevant experts may be useful in any assessment of restoration proposals to ensure that all issues have been adequately considered and assessed. The policy position outlined below is intended to ensure that restoration projects within declared FHAs are well planned and will achieve the desired outcomes. While adequately addressing these criteria may seem arduous for a well-intentioned community group, this is essential to ensure a net benefit to the declared FHA and prevent exacerbation of existing habitat degradation. Restoration projects that satisfy the policy position should be encouraged, and DPI&F should assist with technical input and assistance wherever possible. The benefits of restoration projects often extend beyond the restored habitat values. A community project can engender a spirit of community custodianship and interest in the declared FHA, which has long-term benefits to FHA management. FHMOP 009 Restoration notices for fish habitats—formulation and implementation: departmental procedures provides guidance on the issue of Restoration Notices to restore fish habitats under section 125 of the Fisheries Act. Certain restoration works in declared FHAs are authorised under the self-assessable code for development MP06 Minor impact works in a declared Fish Habitat Area or involving the removal, destruction or damage of marine plants. Policy position Proposals for the restoration of fish habitats or natural processes within both management A and B areas must comply with all of the following criteria: • R estoration works must be specifically for the benefit of fish habitats, fisheries productivity and natural ecological processes within the declared FHA. • T he disturbance area proposed for restoration must be in a degraded condition resulting in reduced fisheries productivity. • Ecological monitoring of the proposed restoration area should identify that the area of disturbance does not show evidence of adequate natural recovery. 13 See also FHMOP 009 Restoration notices for fish habitats—formulation and implementation: departmental procedures. 14 A DPI&F policy on the use of both Restoration Notices and Enforcement Notices is to be developed. 15 See also FHG 002 Restoration of fish habitats: fisheries guidelines for marine areas.
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