A Whitsunday scenic-flight business has been stopped from running commercial flights from the privately owned Whitsunday Coast Airport after the Supreme Court found the Council had a strong enough case that the business operation required the consent of the regional airport without permission.
Whitsunday Regional Council owns and operates the “uncontrolled” airport near Proserpine.
Whitsunday Air Tours operates tourist joy flights over the Whitsunday Islands and the Great Barrier Reef.
In July 2024, the Council granted the company a 12-month licence to occupy part of the airport and carry out activities associated with scenic tours.
But in March 2025 there were two alleged “near-misses” – one of them on the runway – and in April there was an inflight incident in the absence of aircraft to aircraft radio communication about which Qantas and Jetstar had concerns.
That prompted the Council to give the operator notice that the licence would end the following month.
It put strong safety enforcement as its primary focus and despite having tried working with the operator, it claimed the relationship had become untenable.
The company had also habitually been late in payment of its licence fees.
The operators disputed the safety allegations saying that isolated incidents did not reflect their culture.
The Civil Aviation Authority had in any event exonerated them of negligence over about the lack of radio calls.
To the Council’s chagrin, the business continued operating more than 230 scenic flights from the airport despite the licence having been terminated.
It successfully applied to the court in August 2025 for a temporary injunction to prevent the company using its airport which it claimed involved trespass.
When the contest resumed – in an effort to have the injunction lifted – the operator argued the airport was a certified, publicly used aerodrome and that because it held an air operator’s certificate (AOC) issued by the Civil Aviation Safety Authority, it was entitled to conduct scenic flights from the council’s airport.
It contended that as a result, no separate contract or airport licence was required to alight or land at the facility or to load and unload passengers.
Justice Paul Smith noted that Civil Aviation Regulations did not expressly entitle aircraft operators any right to use an owner’s land for aviation related activity.
Further – he said – there was significant difference between merely flying a general aviation aircraft on the one hand and operating a commercial scenic-flight business on the other.
The operator’s argument nevertheless convinced the judge there should be a trial to decide whether the AOC overrode the landowner’s right to decide who conducted business from its airport.
Should though, the injunction remain in force pending trial?
The judge considered the council’s safety concerns to be justified in the context of an “uncontrolled” airport where pilots use see and avoid measures and radio comms to maintain separation.
Taken with the absence of evidence that the operator was suffering any financial harm by being denied use of the airfield, and the council having the stronger case, Justice Smith ruled that “balance of convenience” favoured the status quo being maintained.
The injunction was varied to allow the operator’s aircraft to use the airport for re-fuelling, maintenance and emergencies.
The issue is likely to be resolved at a trial in the coming months.
In the meantime, the operator may well seek permission to use the small privately owned airport Airlie Beach for the conduct of its Whitsunday Islands and Great Barrier Reef air tours.
