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King v Forest Practices Tribunal

King v Forest Practices Tribunal

Case [2008] TASSC 1 14 January 2008

Adverse Possession

Easements & Covenants

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Environmental Law

Planning & Development Law

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[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…

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.

Continue reading King v Forest Practices Tribunal

Details

AGLC: King v Forest Practices Tribunal [2008] TASSC 1
Case: [2008] TASSC 1
Decision Date: 14 January 2008

CaseChat Overview and Summary

The matter of King v Forest Practices Tribunal involved an applicant, King, who sought a review of the decision of the Forest Practices Tribunal (FPT) in relation to a permit granted for a private timber reserve. The applicant argued that the grant of the permit for the reserve effectively closed off access to the general planning system. The dispute was heard by the Supreme Court of Tasmania. The central issue before the court was whether the grant of a permit for a private timber reserve under the Forestry Act 1920 (Tas) precluded access to the general planning system for the same land. Specifically, the court needed to determine the extent to which the Forestry Act could operate in a manner that would limit or exclude the application of the planning system under the Planning Act 1993 (Tas).

The court examined the statutory frameworks of both the Forestry Act and the Planning Act, considering the interplay and potential overlap in their respective jurisdictions. It was held that the grant of a permit under the Forestry Act did not, in itself, preclude the operation of the general planning system. The court emphasised that the two legislative frameworks were intended to operate concurrently, with each governing different aspects of land use. The court further noted that the Forestry Act was concerned with the sustainable management of forests, while the Planning Act was concerned with the broader planning and development of land. The court concluded that the grant of a permit under the Forestry Act did not preclude the application of the Planning Act to the same land, as the two acts were designed to address different, albeit potentially overlapping, aspects of land use and development.

In light of the above, the court determined that the FPT's decision to uphold the permit was correct. The applicant's challenge to the permit on the grounds that it precluded access to the planning system was dismissed. The court found that the FPT had correctly applied the relevant legislative provisions in reaching its decision. The final orders of the court were that the application for review be dismissed with costs to be paid by the applicant to the respondents.

Orders