When characterising an existing use under s 106 of the EPA Act, the definition in the prohibiting instrument informs the initial question of whether the use is one that would be prohibited, but the existing use should be described at the appropriate level of generality in ordinary English rather than by adopting the defined term. The public waterway status of waters does not preclude concurrent use for marina purposes. Where a use requires a large area but only part is physically occupied at any one time (such as swing moorings), the whole area may be 'actually and physically used' within s 107(2)(b).
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