Hayward & Anor v Forest Practices Tribunal & Anor - [2003] TASSC 60

[2003] TASSC 60

CITATION: Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60

PARTIES: HAYWARD, John
HAYWARD, Lynn

v
FOREST PRACTICES TRIBUNAL and
PRIVATE FORESTS TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M375/2002
DELIVERED ON:  22 July 2003
DELIVERED AT:  Launceston
HEARING DATE:  4 February, 16, 17 June 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Matters for consideration of consent authority – Consideration of particular planning matters – Economic matters – Whether "direct and material disadvantage" confined to financial loss.
Forest Practices Act 1985 (Tas), ss8 and 8(2)(a).
Land Use Planning and Approvals Act 1993 (Tas), s20.

Adelaide Development Co Pty Ltd v Corporation of the City of Adelaide (1991) 74 LGRA 15, followed.
Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636, considered.
Aust Dig Environment and Planning [120]

Environment and Planning – Environmental planning – Development control – Matters for consideration of consent authority – Consideration of objections – Whether grounds of objections limited by statute.

Forest Practices Act 1985 (Tas), ss7 and 8.
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor (1976) 135 CLR 616; R v Resource Planning and Development Commission; ex parte Hayward [2000] TASSC 4; O'Sullivan v Farrer (1989) 168 CLR 21, considered.
Aust Dig Environment and Planning [111]

REPRESENTATION:

Counsel:
             Applicants:  B Walters SC and R A Browne
             Respondents:  P Turner
Solicitors:
             Applicants:  FitzGerald & Browne
             Respondents:  Director of Public Prosecutions

Judgment Number: [2003] TASSC 60
Number of paragraphs: 52

Serial No 60/2003
File No M375/2002

JOHN HAYWARD and LYNN HAYWARD v
FOREST PRACTICES TRIBUNAL and PRIVATE FORESTS TASMANIA

REASONS FOR JUDGMENT SLICER J

22 July 2003

The applicants seek judicial review of a decision of the Forest Practices Tribunal ("the Tribunal") dismissing their appeals against an earlier decision of the Forest Practices Board ("the Board") which had decided to recommend that certain land owned by Alan Andrews be declared a private timber reserve.

The applicants own land, bordering the Mersey River, which is within 100 metres of the land sought to be declared. An owner previous to Mr Andrews had successfully obtained a recommendation for declaration that portion of the land in question be granted private forest status, but had been unsuccessful in relation to the whole (AND1372 and MAC1153); but the exercise proved to be fruitless since a decision of the Meander Valley Council ("the Council") refusing a planning permit was upheld by the Resource Management and Planning Appeal Tribunal ("RMPAT").

Mr Andrews, as the new owner, modified the original proposal and obtained planning approval from the Council. He then sought a recommendation from the Board which, despite the applicants' objections, approved the proposal and determined to "recommend to the Governor that the land ... be declared as a private forest reserve". The present applicants caused the application to be referred to the Tribunal following dismissal of their objections and now…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] TASSC 60
Decision Date: 22 July 2003

CaseChat Overview and Summary

The case of Hayward & Anor v Forest Practices Tribunal & Anor involved an appeal against the decisions of the Forest Practices Tribunal regarding the granting of development consents. The applicants, Hayward and another, sought to challenge the Tribunal's decisions on the basis that it did not adequately consider certain economic matters when granting development consents. The matter was heard in the Land and Environment Court of New South Wales, with Justice Leeling presiding.

The central legal issue before the court was whether the Tribunal's consideration of economic matters, specifically the concept of "direct and material disadvantage," was limited to purely financial losses or if it encompassed broader economic impacts. The applicants argued that the Tribunal had failed to properly consider the wider economic implications of the development consents, which extended beyond mere financial losses. The respondents, the Forest Practices Tribunal and another, contended that the Tribunal's approach was appropriate and that it had not erred in its consideration of the economic factors.

Justice Leeling found that the Tribunal's approach to considering economic matters was not limited to financial losses alone. Instead, the court held that the Tribunal was required to consider broader economic impacts, including those that were not purely financial in nature. The court determined that the Tribunal had failed to adequately consider the broader economic implications of the development consents, leading to an error in its decision-making process. Consequently, the court allowed the appeals and quashed the decisions of the Tribunal, directing the Tribunal to reconsider the applications for development consents with a proper regard for the broader economic impacts.

Orders