King v Forest Practices Tribunal
[2008] TASSC 1
•14 January 2008
[2008] TASSC 1
CITATION: King v Forest Practices Tribunal [2008] TASSC 1
PARTIES: KING, John Michael
v
FOREST PRACTICES TRIBUNAL
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: 592/2007
DELIVERED ON: 14 January 2008
DELIVERED AT: Hobart
HEARING DATES: 31 October, 2 November 2007
JUDGMENT OF: Underwood CJ, Slicer and Tennent JJ
CATCHWORDS:
Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Forestry legislation – Effect of grant of permit for private timber reserve on capacity to access general planning system.
Forest Practices Act 1985 (Tas), ss5, 6, 7, 8(1), 8(2)(e) and (f), 12, 17, 18, 31.
Land Use Planning and Approvals Act 1993 (Tas), ss20(7), (7A), 51, 58, 61.
Attorney-General v Cameron [2007] TASSC 22, followed.
Hayward v Forest Practices Tribunal (2003) 13 Tas R 231, considered.
Aust Dig Environment and Planning [52]
Statutes – Acts of Parliament – Operation and effect of statutes – General matters – Other matters – Intent of Parliament when enacting legislation to control the conduct of forestry operations on private land.
Aust Dig Statutes [67]
REPRESENTATION:
Counsel:
Appellant: P W Tree SC
Forest Practices Authority: P Turner
Gunns Ltd: S B McElwaine
Solicitors:
Appellant: FitzGerald & Browne
Forest Practices Authority: Director of Public Prosecutions
Gunns Ltd: Shaun McElwaine
Judgment Number: [2008] TASSC 1
Number of Paragraphs: 85
Serial No 1/2008
File No 592/2007
JOHN MICHAEL KING v FOREST PRACTICES TRIBUNAL
REASONS FOR JUDGMENT UNDERWOOD CJ
SLICER J
TENNENT J
14 January 2008
Order of the Court:
Appeal dismissed.
Serial No 1/2008
File No 592/2007
JOHN MICHAEL KING v FOREST PRACTICES TRIBUNAL
REASONS FOR JUDGMENT UNDERWOOD CJ
14 January 2008
I agree with the reasons for judgment of Tennent J.
I would like to draw particular attention to par46 of those reasons, for it serves to illuminate the legislative intention. As forestry operations under the Meander Valley Planning Scheme ("the planning scheme") were a permitted use on the Porters' land they had, as Tennent J points out, two options:
(1)to apply for a permit under the planning scheme which must have been granted, albeit possibly subject to conditions; or
(2)to apply for a declaration that their land was a private timber reserve.
Had they chosen the first option, the appellant had no "rights" pursuant to the planning scheme or any related legislation, other than to apply to be made a party to an appeal in the event that the Porters appealed to the Resource Management and Planning Appeal Tribunal against the imposition of a condition or conditions to the permit. They did, of course, in common with everyone else, have a chance to lobby successfully the local authority to impose conditions on a permit or to change the planning scheme.
Had the Porters chosen the second option, the appellant had the legislative right to object to the making of a declaration that the land be declared a private timber reserve on the ground that they would be directly and materially disadvantaged if the declaration was made. This additional, but confined, right of objection, conferred upon adjoining landowners, was introduced into the Forest Practices Act 1985 ("the Act") by an amending Act, No 48/1998. Thus, the Parliament thereby conferred on an adjoining landowner a right that he or she did not have under the planning scheme, to object to forestry operations on adjoining land upon application for a permit that the land be declared a private timber reserve. The "trade-off" for that right is the loss of the chance to subsequently lobby successfully for a change in the planning scheme. The obligation on a successful applicant for a declaration is to use the land only for forestry operations and in accordance with the terms of the Forest Practices Code. See the Act, s12. That state of affairs must continue until the declaration is revoked as is provided by the Act, s13.
A consequence of a declaration that land be declared a private timber reserve (not of forestry operations per se) is that any planning scheme ceases to have effect over the land in respect of which the declaration was made. It is common ground that the consequential loss of the chance to successfully lobby for changes to the planning scheme without more, cannot constitute a direct and material disadvantage to an adjoining landowner. It seems to me very difficult to conceive of circumstances with respect to which the loss of the chance to successfully lobby for change will constitute a direct and material disadvantage to an adjoining landowner, but such circumstances will not of themselves constitute a direct and material disadvantage to the adjoining landowner.
I too would dismiss the appeal.
File No 592/2007
JOHN MICHAEL KING v FOREST PRACTICES TRIBUNAL
REASONS FOR JUDGMENT SLICER J
14 January 2008
The respondents, Mr and Mrs Porter, applied to the Forest Practices Authority ("FPA") for the declaration of land at Reedy Marsh in the Meander Municipality as a private timber reserve in accordance with the Forest Practices Amendment (Private Timber Reserves) Act 1998. At the time of the application there were timber purchase agreements in force between the Porters and Gunns Ltd covering over 62,000 tonnes of pulpwood and saw logs on the land and a further tripartite agreement between those parties and the Meander Valley Council. The land subject to the application had 30 adjoining titles, with some 20 different landowners, six of whom appealed the grant of declaration as "prescribed persons".
The application was assessed by Forest Practices Tasmania and following its recommendation and consideration of objection by the prescribed persons, a declaration was made. The declaration was appealed to the Forest Practices Tribunal ("the Tribunal") as provided for by the Forest Practices Act 1985, ("the Act"), s9. The Meander Valley Council and the Environment Association became involved in the Tribunal hearing which was conducted over some 17 days. Some 15 persons or entities appeared before the Tribunal and each was heard, or afforded the opportunity to be heard, and provided or relied on evidence on a myriad of matters and issues. Each of the "prescribed persons" adduced evidence and/or made submissions on the "direct and material disadvantage" each would suffer as a result of the declaration.
The Tribunal found "that it was not satisfied upon the evidence, that with respect to the application … any of the negative criteria in S8(2) of the Act exist."
The appellant sought review pursuant to the Judicial Review Act 2000, s17, claiming errors in law relevant to this appeal, in that:
"1The decision of the Tribunal involved an error in law in that the Tribunal, pursuant to s17(2)(f) of the Judicial Review Act 2000, directed itself that:
a) …
b) …
c) …
d) in determining whether the proposed PTR would produce a direct and material disadvantage to the applicant, it must approach the issue by comparing the likely impacts and issues arising from the proposed PTR declaration with the impacts and issues arising from 'forestry without a PTR'.
e) …
2The decision of the Tribunal involved an error of law in that the Tribunal, pursuant to s17(2)(f) of the Judicial Review Act 2000, found that:
a) that none of the contentions raised by the applicants relating to, amongst other things, visual impact, 1080 poison impacts, shooting impacts, chemical and aerial spraying impacts, water quality, noise, traffic and road safety impacts, smoke inhalation, weed infestation, could alone constitute a direct and material disadvantage to the applicant;
b) failed to consider whether the cumulative impacts of the contentions could cause direct and material disadvantage to the applicant;
3…
4…
5…
6…
7The Tribunal erred in law in that:
(a) at par 23 of the reasons it incorrectly found that pursuant to s27 Forest Practices Act, the summary provided to the local council identified where future forestry was planned and where re-afforestation measures were proposed;
(b) at par 23 of the reasons it incorrectly found that pursuant to s27 of the Act Gunns Ltd meets with councils at formal 3 yearly planning meetings where councils have input into the plans prior to their submission to the FPA;
(c) at par 24 of the reasons it incorrectly found that there were requirements as therein listed for the operator under a FPP to formally notify council of activity under a FPP;
(d) at par 43 of the reasons by failing to ask the correct question required by s8(2)(f) of the FPA as to the consequences for an owner (as therein confined) but rather determining that its perceived assessment of parliamentary intent meant that no declaration of a PTR could be refused (on the complaint of an individual owner as confined by the definition of 'prescribed person') on the basis of the loss of town planning input from council resulting from the grant of a PTR;
(e) at pars 51, 55, 61, 131 & 196 of the reasons to the extent those paragraphs conclude that council was unlikely to impose significant town planning conditions (i) as that finding was dependent upon the errors identified in (a) – (d) above; (ii) that finding is wholly inconsistent with or contradictory of the finding in par 55 that council's attitude to the present appeal has varied markedly and its determination in favour of the council on its complaints on general amenity grounds at pars 209 and 217 of the reasons."
Ground 7(d), as amended before the learned primary judge, stated:
"(d)at par 43 of the reasons by failing to ask the correct question required by s 8(2)(f) of the FPA as to the consequences for an owner (as therein confined) but rather determining that its perceived assessment of parliamentary intent meant that no declaration of the PTR could be refused (on the complaint of an individual owner as confined by the definition of 'prescribed person') on the basis of the loss of town planning input from council resulting from the grant of a PTR".
The learned primary judge concluded that "No error of law on the part of the Tribunal has been identified", noting that it was "not a determination as to the merits of the appeal that was before the Tribunal" and that what he had decided was "… in the respects suggested, the Tribunal did not make any errors of law in its reasoning".
His Honour was correct in his conclusion and his dismissal of the application for review. Simply put, the Tribunal did not fall into any of the errors claimed. The Tribunal:
(1)compared the likely impacts and issues arising from the proposal;
(2)considered the likely or claimed impacts identified in ground 2(a) and did not ignore those cumulative effects;
(3)it considered and was entitled to find the matters identified in ground 2(a) to (c);
(4)it did not overlook the fact the limited extent to which the council might seek to impose controls beyond the term of the tripartite agreement and accepted the unchallenged evidence that "Councils do not normally include conditions which would limit the commercial operations necessary for forestry".
It noted that the controls which the council had sought to be imposed were embodied in the tripartite agreement. In particular, the Tribunal noted that matters of road junctions, sight distance, signage, road maintenance, and the like were "all matters which would potentially affect any person using the road system in the vicinity, not persons by virtue of the fact that they were prescribed persons because they adjoined the PTR land".
(5)As to the failing to ask the "correct question" required by the Act, s8(2)(f), the claim of error was misconceived, or if as reformulated at the hearing of this appeal, correctly answered. The Tribunal had stated in its reasons at pars41 – 43:
"It was contended for Council and the other appellants that adverse impacts on the public interest were intrinsic aspects of a PTR, because of the loss of the capacity of residents and the Council on their behalf, to affect the nature and extent of forestry once a PTR was declared. It was contended that therefore the declaration of a PTR was necessarily contrary to the public interest in virtually every case.
S20(7) of the Land Use Planning and Approvals Act 1993 above has the effect that in every case where a PTR [private timber reserve] is declared, the planning system will no longer apply. It is therefore inevitable that in every such case both the public and the neighbours will lose the opportunity for input through the planning system. It was contended on behalf of the appellants that this was contrary to the public interest, and in the case of the individual appellants constituted direct and material disadvantage.
If that result was contrary to the public interest then in every such case the declaration of the PTR would by definition, be contrary to the public interest and/or constitute a disadvantage to the neighbours. The consequence would be that every PTR would be in conflict with those criteria in section 8, and no PTR could ever be declared. Such a construction would defeat the obvious purpose of the system set up by the Forest Practices Act, which is that if appropriate, a PTR may be declared; and that the tests of appropriateness are stated in section 8. The Tribunal will accordingly determine the appeal upon the basis that a PTR is not, by definition alone, against the public interest. The factors which may or may not make it against the public interest have to be analysed in each case."
The loss of planning review under the excluded legislation Land Use Planning and Approvals Act 1993 ("the LUPA Act") required consideration of direct and material disadvantage to an adjoining landowner and analysis "in each case".
The grounds of appeal as originally formulated to this Court either repeat the original misconception or as "argued in part" at the hearing of this appeal, suggest that the learned primary judge misunderstood the argument as advanced by the appellant while concurrently and correctly determining the correct approach.
If I have understood the refined argument, counsel for the appellant did not rely on the proposition that:
"In every case involving an adjoining landowner, absence of recourse to LUPA would, without more, constitute a direct and material disadvantage requiring rejection of a declaration."
The proposition originated in an earlier, but different, contention advanced before the Tribunal that "the Forest Practices System was so inadequate that it would be unsafe to allow the proposed PTR because of the risk of adverse outcomes by breach of the system". That basic proposition was developed to mean that absence of other planning legislation or municipal schemes, itself was against the public interest to permit the "practices system" to govern the interests of adjoining landowners. The Tribunal certainly understood the consequences of the above-stated proposition when it stated at par42:
"It is therefore inevitable that in every such case both the public and the neighbours will lose the opportunity for input through the planning system. It was contended on behalf of the appellants that this was contrary to the public interest, and in the case of the individual appellants constituted direct and material disadvantage."
The learned primary judge dealt with the distinction between public and private rights and correctly understood the implications of that proposition in his reasons for judgment at par43, when he stated:
"At pars125 – 132 of its reasons, the Tribunal addressed the issues that had been raised before it in relation to weeds. It said the following at par131:
'131As previously noted, the extent to which there may be additional forestry because of a PTR is not shown to be at any significant level; and the Tribunal is not satisfied that a PTR will make a significant difference to the level of forestry on the land, or the nature of the controls applied to it'."
The grounds of appeal were amended at the commencement of the hearing of this appeal so as to read:
"1 That the learned primary Judge failed to determine ground 7(d) of the appellant's amended Originating Application according to law in that his Honour:-
(a)incorrectly attributed to the appellant a purported argument in support of that ground, namely that a loss of opportunity for input into the planning system (as identified by his Honour) 'always inevitably results in a landowner being directly and materially disadvantaged within the meaning of s8(2)(f)' of the Forest Practices Act 1985;
(b)correctly held that such a loss of opportunity, either alone or together with other factors, may justify a conclusion that an individual would be directly and materially disadvantaged, but incorrectly failed to identify that that was precisely the argument that was advanced by the appellant in support of ground 7(d); and
(c)on the basis of the incorrectly attributed argument, dismissed this ground for review, whereas had the correct argument been identified, ought to have upheld the ground for review."
I do not accept that the learned primary judge wrongly attributed to the appellant the purported argument. That was certainly how the Tribunal had seen it and it is consistent with the original application for judicial review. The arguments put to the learned primary judge are confusing. Counsel for Gunns provided two extracts from the transcript, namely:
"… that the loss of the right to seek to influence the town planning process, either of itself or in combination with the other concerns, resulted in a direct and material disadvantage to Mr King, quire owner. And that is not put on the basis that the Tribunal should have found that to be the fact, and therefore there’s an error of fact.
That is put on the basis that, particularly in determining the issue of the right to agitate town planning concerns, which remains if a PTR is not granted, the Tribunal asked itself the wrong question, and misdirected itself as to relevant legislation."
But even accepting that the argument was wrongly stated, it does not follow that substitution of the words "some" or "many" for "every" would produce a different test or outcome. (State of Tasmania v Muir-Wilson [2001] TASSC 30.) His Honour accepted that "there may even be situations in which that situation alone would justify such a conclusion."
The argument as advanced by counsel for the appellant was more refined. It commenced with the disjunctive nature of the Act, s8(2)(e) (public interest) and (f) (direct and material disadvantage), both of which were relied upon by the appellant before the Tribunal. The critique was that the Tribunal was wrong in concluding that "a declaration of a PTR would not constitute a significant impact upon the public interest … and would therefore not be against the public interest". I do not understand that passage in the sense stated by counsel in his written submissions. The full text states:
"232The public interest in the preservation of biological diversity, biophysical naturalness, and environmental integrity generally, is undoubted. All of the individual factors relevant to such factors have been identified and considered above.
233Again, with respect to the public interest, the test is the differential effect of the declaration of the PTR. As previously noted, the extent to which there may be additional forestry because of a PTR is not shown to be at any determinable level; and the Tribunal is not satisfied that a PTR will make a significant difference to the level of forestry on the land, or the nature of the controls applied to it.
234In its totality, the evidence does not satisfy the Tribunal that the difference made by declaration of a PTR would constitute a significant impact upon the public interest. It would therefore not be against the public interest."
In this case, as can be seen in a reading of the 290 paragraphs of the Tribunal's reasons, every argument concerning amenity, habitat, land use, social relationships, flora, hybridization, monoculture, weeds, fire, smoke, traffic, spraying, water quality and quantity, shooting, poison, business losses, visual impact, land values, climate change and natural justice, to name but some, was identified, considered and stated in the course of the hearing and dealt with in the reasons. The above passage complained of refers to "the difference" or differential considered by the Tribunal was that between forestry within or outside a PTR and its general ecological effect. To that extent the differential "engages" the public interest. The written submission provides:
"13Whilst it is difficult to penetrate the Tribunal's reasoning in relation to s8(2)(f), it appears as though what it at least attempted to do was:-
· discuss what comprised direct and material disadvantage as a matter of law (AB 21);
· identify what it believed to be the matters of direct and material disadvantage relied upon by the applicants generally;
· make conclusions in relation to each of these matters.
14Even on this benevolent approach to what the Tribunal did, it is plain that other than in paras41 to 43, it did not consider, from any individual's (and hence therefore the appellant's) perspective, any direct and material disadvantage which they might suffer by virtue of a loss of opportunity to seek input in relation to any conditions imposed upon the grant of approval under the relevant planning scheme. That appears to be because it regarded its reasoning in para43 as conclusively answering that contention."
It is more difficult to penetrate the appellant's argument.
Legislative scheme
The appeal has wider import. The appellant seeks to widen the basis on which an objector can oppose a declaration made under the Forest Practices Amendment (Private Timber Reserves) Act. The assumption is that the status afforded an adjoining landowner who claims a direct and material disadvantage entitles that person to advance both public and private rights in support of the objection. The Act provides otherwise. The object of the Act is stated as:
"An Act to ensure that all forest practices are conducted in accordance with the Forest Practices Code, to provide for the issue of that Code, to provide for the creation of private timber reserves, to provide for the constitution of the Forest Practices Tribunal, and to provide for incidental and consequential matters."
It establishes an authority with general objectives, specified in Sch7 as:
"The objective of the State's forest practices system is to achieve sustainable management of Crown and private forests with due care for the environment while delivering, in a way that is as far as possible self-funding –
(a) an emphasis on self-regulation; and
(b) planning before forest operations; and
(c) delegated and decentralized approvals for forest practices plans and other forest practices matters; and
(d) a forest practices code which provides practical standards for forest management, timber harvesting and other forest operations; and
(e) an emphasis on consultation and education; and
(ea) an emphasis on research, review and continuing improvement; and
(eb) the conservation of threatened native vegetation communities; and
(f) provision for the rehabilitation of land in cases where the forest practices code is contravened; and
(g) an independent appeal process; and
(h) through the declaration of private timber reserves – a means by which private land holders are able to ensure the security of their forest resources."
The Authority is required to "oversee the administration of private timber reserves by Private Forests Tasmania" (s45(f)), and to maintain compliance (s4G). Any person who wishes to have his or her land declared as a private timber reserve must make an application to the Authority which is required to give public notice (ss5 and 6). A prescribed person may object to any declaration by giving notice to the Authority. A prescribed person is deemed to be a relevant local or State Authority, a person with a legal or equitable interest in the land to be declared, or, as here:
"(d) a person who is the owner of land that adjoins, or is within 100 metres of, the boundary of the proposed private timber reserve."
An objection may not be entertained by the Authority unless it specifies the ground for the objection which in the case of an adjoining land owner is to be limited to those which would render him or her to be "directly and materially disadvantaged" (s8(2)(f)). The local or State Authority and a person with interest in the land is given wider grounds for objection, namely:
· lack of honesty or good faith;
· suitability of the land;
· disadvantage to the legal or equitable interest of a "co-owner", mortgagee and the like;
· through proscription of another Act of Parliament;
· public interest.
The Authority is not permitted to refuse an application unless:
(1)it has first given the applicant and any objector the opportunity to appear and make submissions at a hearing; and
(2)conducted such a hearing.
The Authority is required only to hear from an objector on the ground as formulated. It would be required to entertain an objection stating a direct and material disadvantage by reason of loss of planning rights, but absent anything further it would be required, or at least, entitled, to dismiss the objection. But it would be required to first conduct a hearing and receive submissions. If the objector claimed nothing other than the loss of recourse because he or she could not raise other matters, unspecified, the disadvantage could not be said to be material. If at the hearing or in the course of submissions the objector articulated that other matters of amenity or special interest specifically identified could be better determined or protected by that planning authority, the particular claim of specific disadvantage would require consideration by reference to those identified matters. Absent that claim, or reliance solely on the basis of loss of recourse would not involve any "direct disadvantage" by virtue of ownership of that land. Further, the Authority would not be required to entertain evidence or submissions unrelated to the land or its enjoyment by the owner which was said to be "solely" in the public interest.
Parliament has limited the class of persons who might object and inhibited the grounds of their intervention in the one statutory provision. In a separate enactment, it has excluded, through the LUPA Act, s20(7), private timber reserves from the more usual form of planning review. To that extent, there might be disadvantage to the landowners, but without more, that claimed disadvantage could neither be direct nor material. The Authority is required to grant the application unless it is affirmatively satisfied of any of the matters confined by the Act, s8(2). The discretion of the Tribunal is subject to the legislative provisions. The effect of the scheme is that:
(1)the Authority may not refuse an application unless it has conducted a hearing;
(2)it is required to only consider objections by persons who come within closely defined categories or specified statutory authorities;
(3)the grounds which may be advanced are limited, and an individual may not advance the "public interest" as a basis for objection;
(4)the authority must reject an application if it is affirmatively satisfied of any of the criteria or impacts provided by the Act, s8(2)(a) to (f).
The Act, s5, confines the category of a permitted objector. Section 7 confines the ground on which an objection might be made and imposes an evidentiary restriction on the material which might be submitted by an adjoining landowner, whilst s9 permits the appellate tribunal to expand the issues to be considered through the permitted addition of parties to the review hearing.
A person aggrieved as the applicant or objector has a right of review through the Tribunal. The Tribunal, in turn, is required to uphold the objection if it is affirmatively satisfied of the same criteria imposed on the Authority by s8. The terms "direct and material disadvantage" ought be given a wide meaning (Hayward v Forest Practices Tribunal (2003) 13 Tas R 231) but require a nexus between the land and that disadvantage. It does not extend to the loss of a "claimed" public right to have a review conducted by another tribunal.
Direct and material disadvantage
In Hayward (supra) the Tribunal had confined its consideration of the term "disadvantage" to loss of value in the land. I preferred a wider meaning, stating that the term was not restricted to "financial detriment to land value". Here the Tribunal permitted the appellant to argue matters at large because it was required to consider the criteria stated by the Act, s8(2). It was entitled to do so. It gave great latitude to all of the objectors and, through joinder, heard evidence and submissions made by the local authority. But it was not required to consider as a discrete and separate matter the removal by Parliament of the provisions of the LUPA Act. Nevertheless it permitted the raising of all and every identified matter(s) of substance raised by the appellant.
Disadvantage and loss of right
The appellant claims disadvantage through loss of right of an input into any planning decision which might be made by the Council or any other relevant planning body, either through loss of the right to make representations or influence the decision through normal political processes. The disadvantage was articulated as "loss of access", "capacity to influence outcome", or the opportunity to have protective conditions imposed by the local authority. Each could be described as a general or public right of involvement in a wider political process. Even accepting them as "rights" they do not directly or materially arise by virtue of his specific land. Even accepting them as rights, they are ones specifically removed or varied by Parliament. The appellant retains the right, with others, to replace the Parliament or sufficient of its numbers to alter its constitution. But the majority of that Parliament has enacted legislation specifically removing his "right" of access to prescribed planning authorities and provisions. That removal does not negate the more restrictive processes provided for by that Parliament in relation to forestry. The removal does not widen the ambit of the terms "prescribed person" or "direct and material disadvantage" to "an owner of land … that adjoins, or is within 100 metres of the boundary of the proposed private timber reserve". The disadvantage is not necessarily confined to the borders or boundaries of the land or the use of that land (Eaton & Sons Pty Limited v The Shire of Warringah (1972) 129 CLR 270) but must be something more than some inchoate claim. In Eaton, Barwick CJ did not find it necessary to consider the term "right" in the context of planning law, but Stephen J addressed the question in general terms in the following passage at 293 – 294:
"It may be a matter for debate whether the term 'right' is used in cl 65 (1) (b) in its wide sense as including any advantage or benefit which is in any manner conferred upon a person by a rule of law or in its narrower, stricter meaning as the correlative of a legal duty - Salmond on Jurisprudence, 10th ed (1947), pp 220 et seq. If given its wider meaning, 'right' would include the jurisprudential concepts of liberties, powers and immunities and there is some authority for the view that in a context such as the present the term should be given a wide meaning - Yorkshire Dyeware and Chemical Co Ltd v Melbourne and Metropolitan Board of Works [1968] VR 277, at p 282; Boyce v Hughes (1970) 91 WN 171 ; but see also Clyne v McDonald [1965] NSWR 161. (at p293)
Be that as it may, there are two features of consents granted under schemes such as those here in question which appear to me to make it inappropriate to speak of them as conferring either a 'right' in the narrow or wide sense or a 'privilege'. First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier. For this reason it appears to me to be inappropriate to regard such a consent as conferring rights or privileges in the sense in which I understand those words to be used in cl 65 (1) (b). It is well established that in provisions such as cl 65 (1) (b) no alleged right can be protected so long as it is one common to the community as a whole. As it was said in Abbott v Minister for Lands [1895] AC 425, at p 431, there must be an 'act done by an individual towards availing himself of that right' before it can be said to be 'a "right accrued" within the meaning of the enactment'. What are protected are rights which have been acquired by or have accrued to an individual; consents under the present schemes do not confer rights of this character. (at p294)
Secondly, I doubt whether it is proper to regard as a 'right' or 'privilege' acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to me to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law."
There, as here, the legislative scheme took away a liberty at general law, but enabled an exercise of right in a qualified way. The right to seek redress through disadvantage which might be claimed by the appellant is one which is "acquired" or "accrued" by reason of ownership and use of land. The barring by Parliament of a remedy, especially one procedural, is not deprivation of an accrued immunity or defence. There is no "right" unless provided for in a Constitution or overriding legislation to exemption or immunity from legislative action (Mathieson v Burton (1971) 124 CLR 1; Robertson v City of Nunawading (1973) 29 LGRA 44). While a statute ought not be construed as to change the legal character or consequences of rights or obligations by reference to past events (Ku-ring-gai Municipal Council v Attorney-General NSW (1957) 2 LGRA 268), procedural restrictions do not operate to enlarge the meaning or import of words employed in different legislation.
In Hayward v Forest Practices Tribunal (supra) I attempted to provide expansive examples of matters which might constitute "disadvantage". Those matters referred to the land and the "human condition" and my attempt included at 247:
"The term 'disadvantage' refers to the land and the 'human condition' which optimistically is not confined to accumulation or maintenance of wealth. Ownership of land has a financial component but to an owner/occupier it includes amenity. Amenity in land has long been recognised by the law through easements or prescriptive rights of light (Swansborough v Coventry (1832) 9 Bing 305), lateral support (Hunt v Peake (1860) Johns 705), peaceable enjoyment against subsistence, Spoor v Green (1814) Law R 9 Exch 99), water courses ex jure natural (Broadbent v Ramsbothom (1856) 11 Exch 602; Carlyon v Lovering (1857) 1 H – N 754), fishing (Wickham v Hawker (1840) 7 M & W 63, Ewart v Graham (1859) 7 H L Ca 331) and protected by the laws of trespass (Star v Rooksby (1711) 1; Salkfeld 335, Case of Thorns (1446) YB 6 Ed 4 fo 7, pl 18 including inconvenience (Waters v Maynard (1924) 24 SR(NSW) 618 and nuisance (see generally, Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536; Hunter v Canary Wharf Ltd [1997] AC 655; Winfield Nuisance as a Tort, (1932)). Amenity is recognised in most modern legislation dealing with planning, development and use of land."
The list was not, nor intended to be, exhaustive. But each required a nexus with the land and the "prescribed person" who was limited by statute in his grounds of objection.
I would dismiss the appeal.
File No 592/2007
JOHN MICHAEL KING v FOREST PRACTICES TRIBUNAL
REASONS FOR JUDGMENT FULL COURT
TENNENT J
14 January 2008
A Mr and Mrs Porter applied to the Forest Practices Authority ("FPA"), pursuant to the Forest Practices Act 1985 ("the Act"), s5, to have their land at Reedy Marsh declared a Private Timber Reserve ("PTR"). The FPA duly advertised the application and considered objections. One of the objectors was the appellant in the present proceedings. The FPA made the declaration sought. The appellant then appealed the making of that declaration to the Forest Practices Tribunal ("FPT"). On 13 October 2006, the FPT dismissed the appeal. The appellant sought a review of the FPT's decision under the Judicial Review Act 2000. A single judge of this Court dismissed the application for review. It is from that decision the appellant now appeals.
The Court heard argument from counsel for the appellant, counsel who appeared for both Mr and Mrs Porter and the company to whom they had assigned rights to conduct operations on their land, Gunns Ltd, and counsel for the FPA. I have loosely described Mr and Mrs Porter, Gunns Ltd, and the FPA, as the respondents to the appeal.
Grounds of appeal
The grounds of appeal pursued are as follows:
"1That the learned primary judge failed to determine ground 7(d) of the appellant's amended Originating Application according to law in that his Honour:-
(a)incorrectly attributed to the appellant a purported argument in support of that ground, namely that a loss of opportunity for input into the planning system (as identified by His Honour) 'always inevitably results in a landowner being directly and materially disadvantaged within the meaning of s8(2)(f)' of the Forest Practices Act 1985;
(b)correctly held that such a loss of opportunity, either alone or together with other factors, may justify a conclusion that an individual would be directly and materially disadvantaged, but incorrectly failed to identify that that was precisely the argument that was advanced by the appellant in support of ground 7(d); and
(c )on the basis of the incorrectly attributed argument, dismissed this ground for review, whereas had the correct argument been identified, ought to have upheld the ground of review.
3His Honour erred in that, as a result of his finding in regard to ground 7(d) of the appellant's Amended Originating Application he rejected ground 2(a) and (b) of the said Application on the basis that the Tribunal's findings were findings of fact. If the Tribunal applied the wrong test as to the effect of s8(2)(f) of the FPA to individual appellants by treating their loss of town planning input on a global basis 'In every case' then it misapprehended the law in assessing the extent to which each individual objector might be 'directly and materially disadvantaged' whereby the determinations of the Tribunal the subject of ground 2(a) and (b) of the said Application should have been set aside and remitted to the Tribunal for review."
Relevant parts of originating application
To put the grounds of appeal in context, grounds 2(a), (b) and 7(d) of the amended originating application for review provided:
"2The decision of the Tribunal involved an error of law in that the Tribunal, pursuant to s17(2)(f) of the Judicial Review Act 2000, found that:
(a)that none of the contentions raised by the applicants relating to, amongst other things, visual impact, 1080 poison impacts, shooting impacts, chemical and aerial spraying impacts, water quality, noise, traffic and road safety impacts, smoke inhalation, weed infestation, could alone constitute a direct and material disadvantage to the applicant;
(b)failed to consider whether the cumulative impacts of the contentions could cause a direct and material disadvantage to the applicant;
…
7The Tribunal erred in law in that:
……
(d)at par43 of the reasons by failing to ask the correct question required by s8(2)(f) of the FPA as to the consequences for an owner (as therein confined) but rather determining that its perceived assessment of parliamentary intent meant that no declaration of a PTR could be refused (on the complaint of an individual owner as confined by the definition of 'prescribed person') on the basis of the loss of town planning input from council resulting from the grant of a PTR;"
Trial judge's reasons in respect of grounds of review
The learned trial judge dealt with grounds 2(a) and (b) at pars11 - 14 of his reasons, where he said:
"The Tribunal considered each of the issues listed in par(a) of ground 2. In considering whether the applicant and other appellants would be directly and materially disadvantaged, the Tribunal addressed the issues of visual impact (at pars77 – 83 of its reasons), 1080 poisoning (pars90 – 94), shooting (pars95 and 96), chemical and aerial spraying (pars97 – 103), water quality (pars104 – 106), noise (pars108 – 111), traffic and road safety impacts (pars112 – 117), fire and smoke (pars118 – 124), and weeds (pars125 – 132). The Tribunal considered each of those issues individually, and reached conclusions to the effect that each of those matters could not alone result in the individuals in question being directly and materially disadvantaged. Those conclusions have not been challenged on the hearing of the present application. However, taking ground 2 as a whole, the applicant contends that the Tribunal should have considered the impact of a declaration of a private timber reserve in all those respects in the aggregate, that it did not do so, and that it erred in law by not doing so.
After considering all the issues that I have referred to, and a number of others, the Tribunal said the following under the heading 'General amenity':
'208 It was contended by the appellants, and they gave evidence, that primary aspects of their enjoyment of the Reedy Marsh area, were appreciation and enjoyment of naturalness, wildlife, natural visual qualities, and an absence of factors, such as noise, adversely affecting rural residential amenity.
209 The Tribunal considers that the appellants have established all of those matters, and accepts that they are matters of great significance for the appellants. The specific factors upon which those matters of general amenity depend, are those considered above relating to direct and material disadvantage as those individual topics together comprise all aspects of amenity which were relied upon.
210 The crucial question which arises with respect to general amenity is the same as for those specific matters; the differential effect of a PTR; and the answer is necessarily the same.'
I think that in those paragraphs the Tribunal considered the aggregate impact that the declaration of a private timber reserve would have in relation to all the issues that it had addressed, including the issues listed in par(a) of ground 2. Ground 2 must therefore fail.
Furthermore, I think that a finding as to whether an individual would be directly and materially disadvantaged is a question of fact, and that ground 2 asserts only that the Tribunal used defective reasoning in making a finding of fact. In my view that could not amount to an error of law. See St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15 at pars46 – 54."
He dealt with ground 7(d) in his reasons, commencing at par37, where he said:
"This ground concerns the impact of the Land Use Planning and Approvals Act, s20(7), whereby the provisions of a planning scheme do not affect forestry operations on land declared to be a private timber reserve. In pars42 and 43 of its reasons, the Tribunal said the following:
'42 S20(7) of the Land Use Planning and Approvals Act 1993 above has the effect that in every case where a PTR [private timber reserve] is declared, the planning system will no longer apply. It is therefore inevitable that in every such case both the public and the neighbours will lose the opportunity for input through the planning system. It was contended on behalf of the appellants that this was contrary to the public interest, and in the case of the individual appellants constituted direct and material disadvantage.
43 If that result was contrary to the public interest then in every such case the declaration of the PTR would by definition, be contrary to the public interest and/or constitute a disadvantage to the neighbours. The consequence would be that every PTR would be in conflict with those criteria in section 8, and no PTR could ever be declared. Such a construction would defeat the obvious purpose of the system set up by the Forest Practices Act, which is that if appropriate, a PTR may be declared; and that the tests of appropriateness are stated in section 8. The Tribunal will accordingly determine the appeal upon the basis that a PTR is not, by definition alone, against the public interest. The factors which may or may not make it against the public interest have to be analysed in each case.'"
He then set out ground 7(d) and said at par39:
"When s20(7) does not apply, individuals have opportunities for input into planning decisions by councils and other authorities at a number of different stages and levels. They may make representations in relation to proposed planning schemes or amendments to planning schemes. They may make representations in relation to applications for planning permits. They may appeal to the Resource Management and Planning Appeal Tribunal, or take part in appeals to that tribunal instituted by others. They may lobby councillors as to matters coming before councils. But it must be remembered that the only ground upon which a person in the applicant's position may object to the declaration of land as a private timber reserve is that he or she 'would be directly and materially disadvantaged if the application was granted': Forest Practices Act, s8(2)(f). Perhaps it can be said that the loss of the opportunity for input into the planning system will ordinarily result in disadvantage to some degree. That factor, together with others, might sometimes justify a finding that an individual would be directly and materially disadvantaged by the granting of an application for a private timber reserve. Perhaps there may even be situations in which that factor alone would justify such a conclusion. But it has been argued on behalf of the applicant that such a loss of opportunity always inevitably results in a landowner being directly and materially disadvantaged within the meaning of s8(2)(f). I reject that submission. That would be an absurd result, and one that Parliament cannot possibly have intended. If that were the position, it would be possible to defeat every application for land to be declared a private timber reserve, unless no planning scheme applied to that land, or there was no privately owned land adjacent to it or within 100 metres of it. The suggested interpretation does not promote the purpose or object of the Forest Practices Act. A different interpretation should therefore be preferred: Acts Interpretation Act 1931, s8A. I think this ground must fail."
Legislative scheme in respect of forestry operations on the Porters' land and generally
At all relevant times, forestry operations was a permitted use for the Porters' land.
If, therefore, they wished to conduct forestry operations on their land, they had two options. They could either apply for a development permit pursuant to the Land Use Planning and Approvals Act 1993 ("LUPA Act") or apply for the declaration of a PTR pursuant to the Act. In either case, the Act, PtIII, encompassing ss17 - 29, applied. The Act, s17, provided that an owner of land, or any person to whom that owner had assigned rights, must not carry out any of the following activities on that land unless a certified forest practices plan existed, namely the establishment of forests, the harvesting of timber, the clearing of trees, the clearance and conversion of a threatened native vegetation community and the construction of a road in connection with some of those activities. Section 18 provided for an application for certification of such a plan by the FPA and provided for what it was to contain. It also provided that the specifications in it accord with the Forest Practices Code ("the FPC"). There was an offence created if the terms of a plan, once certified, were breached. Compliance reports were required on a regular basis. The FPA had the capacity to monitor compliance beyond simply reviewing the compliance reports required.
The Act, s31, set out the purpose of the FPC. It provided:
"31 ¾ (1) The Forest Practices Code shall prescribe the manner in which forest practices shall be conducted so as to provide reasonable protection to the environment.
(2) Without limiting the generality of subsection (1), the Forest Practices Code shall prescribe the manner in which the following forest practices shall be conducted:
(a) the establishment and maintenance of forests including standards to be complied with in the restocking of land with trees;
(b) the harvesting of timber or the clearing of trees;
(c) the construction of roads and other works connected with the establishment of forests, the clearing of trees or the growing or harvesting of timber.
(3) Without limiting the generality of subsection (1), the provision of reasonable protection to the environment includes landscape management and the control of soil erosion.
(4) The Forest Practices Code may apply generally or in specified areas or may apply differently according to such factors as may be specified in the Code or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified.
(5) The Forest Practices Code may authorize any matter or thing to be from time to time determined, applied, or regulated by a forest practices officer."
In the absence of any development permit or PTR, the appellant might have, had he wished, made representations to the relevant planning authority to amend its planning scheme to either remove forestry operations as a permitted use altogether or perhaps make it a discretionary use. There is no material before this Court to suggest the appellant did this.
Had the Porters applied to the planning authority for a permit, that authority had to grant the permit (the LUPA Act, s58), although it might have imposed conditions or restrictions. Such conditions or restrictions had to be, however, "with respect to any matter specified in the relevant planning scheme or special planning order."(the LUPA Act, s51(4)). Such an application would not have had to be advertised. Had he become aware of any such application, the appellant might have sought to lobby the local council in relation to the imposition of conditions. However, if the permit were granted absent conditions the appellant might have hoped for, the appellant would have had no right of appeal (the LUPA Act, s61). The only obvious way the appellant might have been involved in any appellate process was if a condition had been imposed to which the Porters took objection and they appealed. In that situation the appellant may have been able to be heard on that appeal (but not generally to seek conditions not the subject of the appeal). He might also have had the capacity, if he were able to establish he was aggrieved by a decision of a planning authority, to apply for a judicial review of planning authority decisions.
In the present case, the Porters did not utilize the planning process under the LUPA Act but, instead, applied pursuant to the Act, s5, to the FPA for the declaration of a PTR in respect of their land. By doing so, they faced the prospect, if successful, of being bound by the Act, s12, which provided that, where land has been declared a PTR, it must be used only for establishing forests, or growing or harvesting timber in accordance with the FPC. They would not have been so restricted had they sought a permit under the LUPA Act.
The Act, s6, required the FPA to advertise an application for a PTR generally and to give notice of it to the relevant local authority. The Act, s7, then made provision for objections to such applications to be made by prescribed persons, a group defined to include in subs4(d):
"a person who is the owner of land that adjoins, or is within 100 metres of, the boundary of the proposed private timber reserve;".
There was no dispute that the appellant in this case, who was the owner of land adjoining that in respect of which the PTR had been declared, was a prescribed person.
The Act, s7(1)(a), confined the grounds of objection available to a prescribed person by virtue of s7(4)(d) to "the ground specified in paragraph (f) of section 8(2) as it applies to that person".
The Act, s8, relevantly provided:
"(1) Where an application for the declaration of land as a private timber reserve complies with section 5, the Authority shall, except where the application is refused as provided in subsection (2), grant the application as soon as is reasonably practicable after …
(2) An application for a declaration of land as a private timber reserve shall be refused if the Authority is satisfied that–
…
(e) it would not be in the public interest to grant the application; or
(f) an owner of land referred to in paragraph (d) of the definition of 'prescribed person' in section 7(4) would be directly and materially disadvantaged if the application was granted."
By virtue of these provisions, the appellant's only basis for an objection was by reference to s8(2)(f).
The LUPA Act, s20(7) and (7A), also relevantly provided:
"7 Nothing in any planning scheme or special planning order affects – (a) forestry operations conducted on land declared as a private timber reserve under the Forestry Practices Act 1985;
7A In subsection (7)(a), 'forestry operations' includes the processes and works connected with –
(a) the establishment of forests; and
(b) the growing of timber; and
(c) the harvesting of timber; and
(d) land clearing, land preparation, burning off, road construction and associated quarry works conducted in relation to an activity specified in paragraph (a), (b) or (c)."
The practical effect of those LUPA Act provisions was that, once a PTR was declared in respect of any land, the forestry operations conducted on the land were controlled by forestry legislation. No permits were needed to conduct forestry operations under planning schemes or legislation and persons who may have had the capacity to have input in respect of the use of the land through the local council or other planning authority did not have any such capacity.
Some further aspects of the legislative regime are relevant to this appeal. The Act itself was introduced in 1985. It was described as:
"An Act to ensure that all forest practices are conducted in accordance with the Forest Practices Code, to provide for the issue of that Code, to provide for the creation of private timber reserves, to provide for the constitution of the Forest Practices Tribunal, and to provide for incidental and consequential matters."
Part II of the Act, being that Part which dealt with Private Timber Reserves, came into force on 21 November 1987.
The body then tasked with dealing with declarations of PTRs in the first instance was the Forestry Commission. Applications for declarations of PTRs were made pursuant to s5 of the Act. Section 7 provided, as it does now, for objections. Initially it made no provision for an objection by an adjoining landowner, confining objectors to prescribed persons who were defined as local authorities, state authorities and persons with a legal or equitable interest in the land the subject of the application. Section 8 provided the Commission "shall" grant the application except where a ground set out in the then subsection 2 was made out.
By the Forest Practices Amendment (Private Timber Reserves) Act 1998, ss7 and 8 were amended with effect from 18 December 1998. By the time of these amendments, the body tasked with dealing with applications for PTRs was the FPA. These sections were amended to, inter alia, add to the list of prescribed persons "a person who is the owner of land that adjoins, or is within 100 metres of, the boundary of the proposed private timber reserve;" and to confine an objector who fell within that definition to a single ground of objection, namely that they would be directly and materially disadvantaged if the application for a PTR were granted.
The LUPA Act came into force in 1993. By s20(7)(a), it then relevantly provided:
"7 Nothing in any planning scheme or interim order affects-
(a) the management of land declared as a private timber reserve under the Forest Practices Act 1985; or"
When the Act was amended in 1998, LUPA Act, s20, was also amended by the Land Use Planning and Approvals Amendment (Private Timber Reserves) Act 1998. Subsection (7)(a) was amended to read as it does now, and s20(7A) was inserted.
The second reading speech of the relevant Minister at the time the 1998 amendments to both Acts were put before Parliament sheds some light on what Parliament may have intended when it introduced the legislation. He said:
"Earlier this year, questions were raised in regard to the relationship between private Timber Reserves and the requirements of planning schemes. A decision of the Supreme Court in March of this year had the effect of invalidating a large number of Private Timber Reserves, highlighting a deficiency in the legislation. The Bills presently before the House clarify the relationship between Private Timber Reserves and planning schemes and improve the provisions which relate to the declaration of land as a Private Timber Reserve.
The Bills clarify that a requirement to obtain a permit or other form of approval from a council in order to establish forests or grow or harvest timber is not to be taken as a prohibition of those activities. This means that a landowner will not have to obtain a permit or approval from a council in order to have land declared as a Private Timber Reserve. This provision will also apply retrospectively, meaning that an existing Private Timber Reserve will not be invalid where a requirement for a permit or approval to be obtained under a planning scheme was not met."
There had, of course, by that time been other amendments to the two Acts. Counsel made reference to the second reading speech I have just quoted. However that of the relevant Minister in relation to the 1994 amendments to forestry legislation, is also illuminating. He said:
"… private timber reserves to encourage private owners to manage their forests on a long-term basis …
The key features of the [forestry] system are:
The provision of the declaration of private timber reserves –these provide the means by which private land-holders are able to ensure the security of their forestry investments."
Ground 1
The assertion in ground 1 is that the learned trial judge failed to determine ground 7(d) of the application to review before him according to law because he made a number of errors. Specifically counsel for the appellant submitted, by reference to par(a) of ground 1, that the learned trial judge incorrectly attributed to the appellant an argument:
"… that such a loss of opportunity always inevitably results in a landowner being directly and materially disadvantaged within the meaning of s8(2)(f)."
and then rejected it. Having rejected it, he concluded ground 7(d) should fail.
Counsel for the appellant submitted that neither the ground of review nor the submissions made to the learned trial judge in support of it accorded with the argument attributed to the appellant. The misunderstanding by the learned trial judge of the source of the argument he identified as the appellant's contributed to his error. Counsel referred to the submissions made by counsel for the appellant at the hearing before the learned trial judge which appear at 131 of the appeal book 2, where he said:
"The extent Mr McElwaine put that I had submitted to your honour loss of a town planning input could or would automatically grant a right – or direct a material disadvantage I disagree with that characterisation of my submissions and I do not do so. It is directly contrary to the individual nature of the statutory tests which we seek to activate."
Counsel on the appeal submitted this laid squarely before the learned trial judge what the position of the appellant was which was contrary to the argument attributed by the learned trial judge to the appellant.
As a starting point I should say that, having read the transcript of counsel for the appellant's submissions before the learned trial judge, I found them confusing and very difficult to follow. I also found the wording of ground 7(d) itself convoluted. The thrust of the appellant's argument is clearer if regard is had to the written submissions which appear at 52 - 62 of appeal book 1. It is apparent, when regard is had to those submissions and the statement at 131, that the learned trial judge did indeed incorrectly attribute an argument to the appellant.
Counsel for the appellant then asserted there was a second error. In par(b) of ground 1, the appellant asserted that the learned trial judge "correctly held" a certain thing, but failed to identify it as the appellant's argument. With respect, his Honour's comments in par39 as identified cannot on any basis be construed as a definitive finding or his having "held" anything. All he was there doing was postulating that certain things may occur and what he referred to accorded with the appellant's argument.
In par(c) of ground 1, counsel referred to a third error. This was that the learned trial judge rejected the ground of review, having relied on an argument not that of the appellant. Had he identified the appellant's correct argument, he ought to have upheld the ground of review. In par39 of his reasons, the learned trial judge accepted that Parliament could never have intended that an objector who argued a loss of opportunity to have input into the planning system automatically would suffer direct and material disadvantage within the meaning of the Act, s8(2)(f). As I understand the arguments put on this appeal, no party has any quarrel with that view. He also appeared to accept that the loss of opportunity to have input either alone or together with other factors might sometimes justify a finding that an individual would be directly and materially disadvantaged. As I understand the argument from the appellant, he says that view is correct. Ultimately, however, the learned trial judge dismissed the ground of review and the question for this Court is, was he correct in so doing?
The appellant's submissions were directed to the basic premise that the FPT should have identified that it needed to ask, did the loss of opportunity to have input through the planning system in the appellant's case amount to direct and material disadvantage for him? The FPT did not ask the correct question in the first place and certainly did not answer that question. Therefore their decision was wrong. Hence the learned trial judge made an error.
In support of this contention, counsel for the appellant began by addressing the meaning of direct and material disadvantage. He referred to Hayward & Anor v Forest Practices Tribunal& Anor (2003) TASSC 60. At pars36 - 43, Slicer J, considered the meaning of the words "direct and material disadvantage" in the context of the Act. Commencing at par37, he said:
"The word 'disadvantage' can be equated with 'prejudice', 'under a disadvantage', or 'inexpedience'.
…..
The term 'direct' would attach the disadvantage to the ownership and use of the land, which includes access. It requires a nexus between the land which permits a right of objection and the 'disadvantage'. The term 'material' means not insignificant. To give it a meaning of 'pertaining to or concerning' would be to render the use of the word 'direct' otiose."
Slicer J went on in par42 to quote some remarks by Debelle J in Adelaide Development Co Pty Ltd v Corporation of the City of Adelaide (1991) 74 LGRA 15 where his Honour discussed the expression "will directly affect" and highlighted the need for a causal relationship between one thing and another and that the causal effect should be direct and immediate. Counsel in the present case submitted that the loss of opportunity being considered met all these criteria and he identified the "rights" which he said were the components of the loss of opportunity suffered by the appellant as:
-the loss of capacity to have input into a development application, that is to influence the mind of the decision-maker (the council) and to argue for conditions,
-the loss of the right to seek a judicial review of any council decision,
-the loss of access to broader enforcement mechanisms under the LUPA Act than were available under the Act, and
-the loss of the right to argue in the Resource Planning and Appeal Tribunal in relation to conditions imposed on any development permit granted to the Porters (where the Porters may have appealed the granting of them).
Counsel for the respondents argued that these losses were not "rights" and that the scope of direct and material disadvantage, as discussed in Hayward's case (supra), was far more confined and could not include the type of loss contended for by the appellant. Counsel for the respondents submitted that a direct and material disadvantage had to be limited to an identifiable impact on an individual owner which was not remote and was of substance. Further, it had to be a consequence of the declaration of the PTR and not a consequence of forestry operations which might be undertaken quite legally subject to conditions pursuant to a development permit.
The effect of the LUPA Act, s20(7), is that upon the declaration of the PTR to the Porters, the appellant was effectively precluded from accessing the planning system by any of the means referred to in pars9 and 10. It is illogical to assume that Parliament would have enacted that provision unless it intended that result. The purpose of the Act is clear. The purpose of amendments to the Act and the LUPA is also clear. Parliament intended to create a system pursuant to which landowners could establish forestry operations within a controlled system; a system which would allow a landowner who chose the path of a PTR to have the security of knowing that his investment in forestry operations could not later be interfered with by changes to planning schemes; a system whereby a landowner could elect, in return for that security, to give up the ability to use their land for purposes other than forestry operations; a system which allowed for limited rights of objection by adjoining owners if they could demonstrate a direct and material disadvantage to themselves because of their ownership of that adjoining land. Parliament could not have intended that such an adjoining landowner could defeat the declaration of a PTR by complaining of the loss of a "right" which Parliament quite deliberately took away.
The appellant says that is not the argument. He says it is the loss of that right as it applies to him not generally which was not considered. Having said that, he did not identify any aspect of the loss which might be said to be directly relevant to him as opposed to adjoining landowners in general. I am unable to see that there is any particular aspect that would not, for example, be able to be brought within the direct and material disadvantage ground independently of the general loss of opportunity to input the planning system claim of disadvantage.
If I am wrong as to Parliament's intention, the underlying question is, was his Honour wrong to dismiss ground 7(d)? Regard must be had to the decision of the FPT to determine this. It should be remembered that the FPT was dealing with a number of different objectors who relied on different grounds of appeal. The hearing ran over approximately 17 sitting days stretching over some months. The written decision ran to 290 paragraphs over 47 pages. There were numerous headings, and a careful analysis of what appears under those headings shows at times the FPT did not strictly put only directly relevant material under particular headings.
The approach to be adopted by a court in reviewing reasons of an administrative decision-maker was identified in Attorney-General v Cameron [2007] TASSC 22 where, at pars55 - 56, Blow J said:
"There are many reported cases as to the approach that should be taken by a court reviewing the reasons of an administrative decision-maker. One such case was Collector of Customs v Pozzolanic (1993) 43 FCR 280, in which the Full Court of the Federal Court collected a number of the relevant authorities. At 287, the Court (Neaves, French and Cooper JJ) said (omitting case references):
'The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts … The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error …'.
That passage was cited with approval by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In that case at 291 – 293, Kirby J set out a number of principles to guide review and appellate courts, beginning with the following:
'1 The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law …
2 This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker.'"
In the present case what the appellant has done instead of looking at the decision of the FPT as a whole, is to focus on the wording of specific paragraphs, in particular pars41 - 43 which appear under the heading "Relevance of effect of a declaration of a PTR on application of the planning scheme". The appellant made scant reference to other parts of the decision. For example, at par5 the FPT identified that there were a number of appellants and that different considerations applied to some. It identified the different grounds upon which each could appeal, noting that the appellant was one of six prescribed persons whose ground of appeal was direct and material disadvantage. It identified, at pars25-28, the possible ways in which persons such as the appellant could access the planning system. It identified, at par34, certain consequences which would flow from a declaration of a PTR which included loss of opportunity to influence planning matters.
In pars41-43, the FPT dealt generally with the loss of opportunity issue by reference to both the public interest and direct and material disadvantage criteria. That was clear from the closing words of par42. It then reached a conclusion as to the basis upon which it would proceed, which is set out in the last two sentences of par43. The FPT said at par43, after identifying the effect of the LUPA Act, s20(7), and the arguments about the impact of loss of opportunity that:
"If that result was contrary to the public interest, then in every such case the declaration of the PTR would by definition be contrary to the public interest and/or constitute a disadvantage to the neighbours. The consequence would be that every PTR would be in conflict with the criteria in section 8, and no PTR could ever be declared."
The tribunal was quite clearly making its comments by reference to the loss of opportunity argument as it related to all objectors whether they be relying on the public interest or direct and material disadvantage basis for objection. It concluded:
"Such a construction would defeat the obvious purpose of the system set up by the Forest Practices Act which is that if appropriate, a PTR may be declared; and the tests of appropriateness are stated in section 8."
Again the tribunal is clearly applying its comments generally and not confining its interpretation to public interest appellants only.
The tribunal then states its ultimate position. It refers, however, only to public interest. If regard is had to the preceding parts identified, I would take the view that the tribunal's conclusion, although not perhaps clearly stated, was that a declaration of a PTR, by definition alone, could not be contrary to public interest nor constitute a direct and material disadvantage. There had to be more and "The factors which may or may not make it against … have to be analysed in each case."
With respect, ground 7(d) was misconceived in the first place because the Tribunal did not determine in, par43, that no declaration for a PTR could be refused on complaint by an individual on the basis of the loss of town planning input. What it concluded was that the declaration of a PTR by definition alone could not constitute a direct and material disadvantage and that the factors which might make it so had to be analysed in each case. It simply identified that Parliament could not have intended that the mere making of a PTR declaration would be contrary to public interest such as to always result in a successful review of a decision to grant such a declaration and that the factors in each case, which might make it contrary to public interest or otherwise bring it within the direct and material disadvantage ground, had to be analysed in each case. That is, as I understand the appellant's argument, what he says was the approach the FPT should have taken. On that basis it could not be correct to say the FPT asked itself the wrong question and, while his Honour may have attributed an incorrect argument to the appellant, it would follow his conclusion that ground 7(d) should fail was correct.
What follows from that is the question, if the FPT asked itself the correct question, did it answer it? The appellant says it did not and that, while it canvassed a number of other identified claimed disadvantages, it did not deal with the loss of opportunity disadvantage claimed by the appellant relative to him.
To determine this question, again regard must be had to the decision of the FPT itself with the approach identified in Cameron's case (supra) firmly in mind. At par6 of its reasons, the FPT said:
"6The appeals by the prescribed persons each raised aspects of direct and material disadvantage, as they applied to their own properties. Those aspects of direct and material disadvantage were each the subject of evidence and submissions relating to the individual prescribed persons. It is however possible and most convenient to consider each of those aspects on the basis that it potentially applies to all of the prescribed persons; taking account of their individual situations where necessary. The separate categories of direct and material disadvantage are accordingly considered individually and collected under that heading below."
The FPT went on, in par8, to deal with aspects of the appellant's case and identified that the appellant's principal stated concern was visual impact. At pars25 - 28, the FPT recognised what the situation would be for the appellant and the Porters under the planning system absent a PTR. At pars30 - 34, under the heading "The Essential Test", the FPT said:
"30When determining the existence of any of the criteria in section 8(2) which are relevant in the present appeals, it is important to bear in mind that what has to be evaluated is the existence and effect of each difference between the existing situation on the one hand, and on the other hand the situation which would arise with declaration of the PTR."
It then set out what objectors might do under the planning scheme and said at par32:
"32The existing situation also involves control under the Forest Practices System. The evidence with respect to the extent of control which Council has in the past exercised over development applications with respect to development the subject of an FPP, is set out elsewhere in this decision; but in substance was minimal by comparison with the extent of control under the Forest Practices System. Without a PTR, it is not unreasonable to expect that will continue to be the case."
At par34, the FPT then set out a number of matters which it said were the likely result of the declaration of a PTR. This list included some of the opportunities the appellant claims will be lost to him.
At pars49 and 50, the FPT said:
"49A PTR is designed to facilitate forestry by removing the uncertainties inherent in the potential for refusal of forestry or imposition of controls arising from application of the Resource Management and Planning System, through the land being subject to the Land Use Planning and Approvals Act 1993. The Meander Valley planning scheme will no longer apply to the land if a PTR is declared. What is the consequence of that?
50… As noted below, Council's approach to date, as exemplified by the provisions of its planning scheme and strategies, and the nature of conditions it has imposed on forestry development applications to date, and the matters to which it has agreed in the tripartite agreement, do not provide a basis for envisaging any significant interference by planning conditions upon forestry upon this land."
In pars55 and 56, the FPT said:
"55Given the permitted status of forestry under the planning scheme, any development application for forestry would have to result in a permit, with the only opportunity for control by Council being by the imposition of conditions. The Tribunal finds nothing in the evidence which makes it likely that Council would impose any conditions which would substantially add to what is in the agreement and any FPP; … In the present case, Council has already participated in the existing planning scheme, making forestry a permitted use. The limited extent to which Council went in stipulating controls in the tripartite agreement is also indicative of how far it was prepared to go. Further, Council's attitude to conduct of the present appeal has [not] varied markedly, giving no basis for an expectation of or confidence in, a likelihood of Council imposing conditions additional to those which would be imposed by any FPP and also affecting the appellants.
56An additional factor is the general tenor of the evidence given on behalf of Council, and the lack of evidence to the contrary, to the effect that Council does not have officers with specialist forestry operations expertise sufficient to enable them to carry out meaningful supervision of the day-to-day operation of forestry on the land; and the lack of any evidence that Council has the resources to devote any staff to such tasks. This decreases the likelihood that Council would see it as appropriate to impose conditions which it would not be in a position to itself enforce; and therefore, decreases the likelihood that Council would impose conditions significantly affecting either the public interest or the appellants alleging direct and material disadvantage."
The conclusion reached in that particular part of the FPT's reasons indicates that it was considering objections by individuals but as a matter of convenience, in effect, dealt with them together. It is plain from the tribunal's remarks that I have highlighted that it was conscious that the declaration of a PTR and the consequent removal of the Porters' land from the planning system would have consequences for prescribed persons such as the appellant, and that what it sought to do was examine the nature of those consequences and the likelihood of them being particularly significant. In the context of the FPT needing to be satisfied that a claimed disadvantage was a direct and material one, this examination was necessary. If in the words of counsel for the FPA any claimed loss was illusory, it could not be said to be direct and material.
Counsel for the FPA referred to a number of other parts of the decision of the FPT and I do not pause to refer to them all. However, it is apparent from reading them that, while the setting out of the decision insofar as ensuring that all material logically appeared under the correct heading might leave something to be desired, the FPT did indeed deal with the appellant's claimed disadvantage.
In all the circumstances ground 1 should, in my view, fail.
Counsel for the appellant told the Court that ground 3 need only be considered in the event that ground 1 succeeded, and conceded that ground 4 was not a proper ground of appeal, but more in the nature of a general complaint that the learned trial judge got it wrong. In the circumstances it is unnecessary to proceed further to deal with grounds 3 and 4.
I would, in all the circumstances, dismiss the appeal.
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