Curran v Forest Practices Tribunal
[2008] TASSC 51
•5 September 2008
[2008] TASSC 51
CITATION: Curran v Forest Practices Tribunal [2008] TASSC 51
PARTIES: CURRAN, Robert
v
FOREST PRACTICES TRIBUNAL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 805/2007
DELIVERED ON: 5 September 2008
DELIVERED AT: Hobart
HEARING DATE: 27 August 2008
JUDGMENT OF: Slicer J
CATCHWORDS:
Environment and Planning – Courts and tribunals with environmental jurisdiction – Tasmania – Forest Practices Tribunal – Powers and duties on appeal.
St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15; King v Forest Practices Tribunal [2008] TASSC 1, considered.
Aust Dig Environment and Planning [596]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Respondent: Submitted to jurisdiction
Solicitors:
Appellant: S B McElwaine
Judgment Number: [2008] TASSC 51
Number of paragraphs: 20
Serial No 51/2008
File No 805/2007
ROBERT CURRAN v FOREST PRACTICES TRIBUNAL
REASONS FOR JUDGMENT SLICER J
5 September 2008
The applicant seeks review of a decision of the Forest Practices Tribunal ("the Tribunal") upholding an appeal by Ms T O'Neill against a declaration, in her favour, of a private reserve No 1844 on 110 hectares of land at Irishtown, by the Forest Practices Authority, pursuant to the Forest Practices Act 1985 ("the Act"), s8. In her initial objection, Ms O'Neill stated:
"1 there will be an increased probability of a reduction or termination of my domestic water supply either permanently or for significant periods during a year.
2 there will be a substantially higher fire risk to my property and person."
Ms O'Neill had appealed the making of the declaration as a "prescribed person" in accordance with the Act, s9. Ms O'Neill did not appear on the first return of this application made pursuant to the Judicial Review Act 2000, and this matter has proceeded in her absence. The Break O'Day Council, which had originally objected to the application to the Authority did not appear at the hearing of the appeal, nor pursue in any way its original objection.
The Tribunal has submitted to the jurisdiction and the Attorney-General, who was represented during the interlocutory phases of the application, has decided not to intervene in the hearing. The decision here is one strictly confined to the circumstances of this case and is intended to have no wider import.
Ms O'Neill had, through an agent, articulated the basis of her appeal in the following terms:
"The ground for appeal is that the appellant will be directly and materially disadvantaged as a result of the approval of the application. In particular, the application proposes a change in use of the land subject to the application, a change of a nature and magnitude that has a reasonable potential to reduce or terminate the water supply to her property permanently or for significant periods of a year by reason of its impact on the groundwater resource of the catchment within which it is located. Further that the change of land use proposed by the application from cleared pasture to a eucalypt plantation will generate a higher risk of damage or destruction of the appellants [sic] property by fire than is currently the case."
In her proof of evidence provided to the Tribunal, she developed her claimed disadvantage in the following terms:
"19 I believe that, within the unique combination of circumstances influencing the hydrology of the Margison Creek catchment, the conversion of cleared pasture land to forest plantation proposed in the application for a PTR will affect my water supply by reducing stream flow to such an extent and in such a way that there is a reasonable potential for the supply of water to my property to be reduced or terminated within the foreseeable future, either permanently or for significant periods of the year, to an extent that will cause me to be directly and materially disadvantaged as a result of the approval of the application. My direct and material disadvantage would result from the damage to the asset of my property by the reduction or termination of the flow of Margisons Creek on my property, the reduction in the amenity of my property, the reduced certainty of being able to pass on the property to my children in a condition adequate to maintain habitation, the reduction in my capacity to enjoy and develop my property due to lack of water or the ongoing financial constraints imposed by the capital and operating expense incurred to replace the existing water supply and maintain an adequate alternative supply, such as building a dam, digging a well, purchasing bulk water, buying bottled water, installing raintanks, etc. The disadvantage would flow to my children who in the normal course of events will inherit or take over the property."
Her position was supported by the evidence of Dr D Leaman, a hydrologist, who provided calculations of the effect of a plantation on water usage over its expected "life of 15 – 20 years and regrowth in thinned areas" in the light of "seasonal rains" on the catchment area.
In its submission to the Tribunal, Private Forests Tasmania contended that:
"… when determining whether a 'disadvantage' is likely to be experienced by the objector who owns adjoining land, it is necessary to establish the current situation and the likely situation if the application was granted, and then compare the two."
Evidence provided included the conclusion that:
"The establishment of the plantation would result in a decline of runoff to the catchment for the O'Neill property of 7.6% of the current total water volume."
The Chief Forest Practices Officer had advised the Tribunal on behalf of the Authority that:
"The board was satisfied that adequate assessments were made by its staff and the officers who have been involved in the preparation of applications for a private timber reserve and a forest practices plan over this property. In contrast the applicant has not provided any evidence to demonstrate that the granting of a private timber reserve would cause a direct and material disadvantage due to hydrological or fire management factors. In fact the harvesting and planting of trees is a permitted activity under the planning scheme and there is no impediment to the certification of a forest practices plan beyond the normal requirements of the Forest Practices Code, which apply irrespective of whether the land is declared as a private timber reserve or not. The granting of a private timber reserve therefore has no effect on whether trees can be planted or harvested upon the property. It therefore follows that the granting of a private timber reserve can have no effect on any potential impacts that the planting or harvesting of trees may have upon the appellant, the granting of a private timber reserve simply being a device to establish an ongoing right to use the land for forestry purposes that may not otherwise exist under a planning scheme at some time in the future. Parliament has specifically provided private timber reserves as a way of providing security for landowners to invest in the long term management of land for forestry purposes."
The technical evidence and opinions provided to the Tribunal showed that there would be a reduction of water flowing into the catchment area, but not significantly so, or at least, not until 13 to 15 years into the life of the plantation. The Tribunal concluded that:
"12It was also common ground and accepted by the experts, the plantation as proposed would decrease the runoff from the Private Timber Reserve land, by a maximum of 10.2 per cent in year 13 after the establishment, which would give an estimated annual flow in Margison's Creek, of 1,318,00 cubic metres (1.318 ML) in an average rainfall year.
…
15The substantial difference between the expert witnesses was that Dr Leaman considered that likely periods of minimum flow, would become periods with no flow, that is, that Margison's Creek would dry up during dry periods."
and inclined to accepting:
"… Dr Leaman's opinion that there are likely to be relatively dry periods, and that in those periods there will be little if any flow in Margison's Creek, towards the end of the 13-year rotation life of the plantation. The Tribunal accordingly finds that it is reasonably likely that there will be periods of weeks up to months at a time, towards the end of the 13-year growth period of the plantation, when there is no useful flow in Margison's Creek at the Appellant's land."
The Tribunal determined that "the proposed Private Timber Reserve would result in a direct and internal disadvantage" to the adjoining landowner on the basis that:
"18Given the likely effects of the proposed plantation under the Private Timber Reserve, on Margison's Creek, the Tribunal infers that the Appellant would therefore need to store up to a maximum of several months of her water volume usage, in the later years of the plantation. That would be a storage requirement of approximately 1909 litres by, say, 2 months, 8 weeks, which is a result of over 15,000 litres. The Tribunal is satisfied that would be a 'direct' result of the Private Timber Reserve. The cost of such a storage and the maintenance of it were not specified, but not in the Tribunal's opinion be 'immaterial'. It would, being a cost impost on the Appellant, be a 'disadvantage' to the Appellant."
The grounds of review relied upon by the applicant state:
"(a)The Respondent erred in law in that in its finding that the proposed Private Timber Reserve would result in a direct and material disadvantage to T B O'Neill (the Appellant) it refused the application without considering whether the direct and material disadvantage would be a consequence of the declaration of the land the subject of the application as a Private Timber Reserve as required by Section 8(2) of the Forest Practices Act 1985 (the Act);
(b)The Respondent erred in law in that in considering the requirements of Section 8(2) of the Act, it failed to ask itself the correct question namely whether the direct and material disadvantage found by it would be a consequence of the growing of trees on the land or would be a consequence of the declaration of the Private Timber Reserve;
(c)The Respondent erred in law in failing to undertake any assessment or analysis as to whether growing trees on the land would occur with or without the declaration of a Private Timber Reserve and whether the growing of such trees would have the direct and material disadvantage found by the Respondent, whether or not the land was declared as a Private Timber Reserve; and or
(d)The Respondent erred in law in its application of Section 8(2) of the Act, it failed to consider whether the direct and material disadvantage found by it would be a consequence of the declaration of the Private Timber Reserve or would occur in any event, that is to say even if such a Private Timber Reserve were not to be declared in respect of the land the subject of the application."
Simply put, the grounds claim:
(1)The growing of trees on the applicant's land was a permitted right, irrespective of the status of the land as a "Private Timber Reserve".
(2)Those trees would "take up" an equivalent quantity of water over the same period, impacting on the catchment area in an equivalent manner.
(3)Strategic impact on the wider area remained the province of the Break O'Day Council as the relevant planning authority.
(4)The impact stated in (2) could not constitute a "direct and material disadvantage" to the adjoining landowner.
(5)The Tribunal had posed to itself an incorrect question and adopted a wrong test of consequence.
Counsel for the applicant articulated the question in the following terms:
"The more refined proposition must be this. On the facts of this case the relevant inquiry must be, what would be the effect of growing trees absent to PTR? What would be the effect of growing trees with the PTR and how is it that the PTR has caused this direct and material disadvantage?"
The applicant, through counsel, disavows any claim that the Tribunal was neither permitted nor required to consider the consequences of a commercial operation, as distinct from the planting and maintenance of stands of trees. This judgment seeks only to resolve the particular disposition of a specific determination.
The Break O'Day Planning Scheme 1996, cl 10, provides for the use of a "Natural Resources Zone". It relevantly provides through subcl 4:
"objective - To ensure Council’s involvement in where and how timber harvesting occurs, having regard to the adequacy of road infrastructure, impacts on water supply catchments and the water quality function of rivers and visibility of scenic ridgelines from important tourist routes.
acceptable solution
performance criteria
4.1 Commercial forest operations on private land outside State Forest land not declared a Private Timber Reserve
4.1 Commercial forest operations on private land not declared a Private Timber Reserve
a) A Forest Practices Plan prepared in accordance with S. 18 of the Forest Practices Act 1985 is required for;
(i) commercial forest harvesting operations on land outside State Forest or land not declared as a Private Timber Reserve; or
(ii) land clearance involving a total area greater than 1ha or an amount greater than 100t in any one calendar year; or
(iii) vulnerable land as defined in the Forest Practices Code.
a) No performance criteria.
b) Commercial forest harvesting on land not declared as a Private Timber Reserve is not to be visible from a tourist road.
b) Where commercial harvesting on land not declared as a Private Timber Reserve will be visible from tourist roads, the applicant is to demonstrate that the development will not detrimentally impact on the scenic and landscape qualities available from a tourist road."
The planning scheme permits the planting and growth of trees in areas not declared to be a "Private Timber Reserve". It is open to a planning authority with a similar scheme to contend to either the Authority or Tribunal that the declaration of a private timber reserve would impact on "water supply catchments and the water quality functions of rivers" generally. The Act, s7(4)(a), permits a "local authority exercising jurisdiction over the land" to advance "suitability" (s8(2)(b)) or "public interest" (s8(2)(e)) as a basis for objection. An adjoining landowner is restricted to a claim of "direct and material disadvantage" (ss7(2)(ab), 8(2)(f)).
The legislative scheme has been considered in this jurisdiction in some detail (St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15; King v Forest Practices Tribunal [2008] TASSC 1). The effect of the operation of the Act is to remove from an adjoining landowner recourse to other planning instruments or statutory provisions as a basis for objection (King (supra)). Here the direct and material disadvantage to the adjoining landowner was the declaration of a private timber reserve, not the growing of trees simpliciter. The "absorption of water" by trees, without more, did not constitute a "direct and material disadvantage". It remained, and remains, open for Ms O'Neill to advance the impact of "commercial operations" with its attendant risks of intensive use, presence of equipment and transport vehicles, erosion, and effect on water quality, as bases for objection. It remained, and remains, open for the Tribunal to uphold the appeal on those bases. But its decision must be based on the impact of the declaration, not the effect of an equivalent ecological process arising from natural and permitted use. The question is as formulated by Ms O'Neill in her initial objection and subsequent appeal, and restated by the Chief Forest Practices Officer, of comparison, rather than equivalence.
The determination of the Tribunal ought be quashed and the matter remitted to the Tribunal for reconsideration in accordance with the above formulation of the appropriate approach. Given that no complaint is made about the factual findings, there is no reason why the same tribunal ought further consider disposition. If such be impractical, there is no reason why a tribunal, differently constituted, should not have regard to the primary material already provided. In either case, Ms O'Neill and Private Forests Tasmania ought be afforded the opportunity to make further representations in relation to disposition.
The application for judicial review is upheld and the order of the Tribunal quashed. The matter is remitted to the Tribunal to be determined in accordance with law.
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