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Tasmanian Conservation Trust Incorporated v Forest Practices Authority

Tasmanian Conservation Trust Incorporated v Forest Practices Authority

Case [2022] TASSC 29 16 May 2022

Judicial Review

Natural Justice & Procedural Fairness

Legitimate Expectation

Administrative Law

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2022] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Conservation Trust Incorporated v Forest Practices Authority [2022] TASSC 29

PARTIES:  TASMANIAN CONSERVATION TRUST
  INCORPORATED
  v
  FOREST PRACTICES AUTHORITY
  JOHN WILLIAM TUCKER
  JOHN EWART TUCKER

FILE NO:  239/2015
DELIVERED ON:  16 May 2022
DELIVERED AT:  Hobart
HEARING DATES:  2, 3 May 2022
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Administrative Law – Judicial review – Generally – Review sought of decision of Forest Practices Authority to certify a forest practices plan on a reapplication after refusal of compensation – Whether the plan was the same plan as originally applied for – Whether the delegate of the Authority held an appropriate delegation – Whether the delegate acted at the behest of another – Whether the correct legislative provisions were applied in the decision to certify – Decision to certify quashed.

Acts Interpretation Act 1931 (Tas), s 23AA.
Forest Practices Act 1985 (Tas), ss 18, 19, 22, 23 and 24.
Judicial Review Act 2001 (Tas), ss4, 5, 7, 8, 17 and 18.
Nature Conservation Act 2002 (Tas), ss 33, 41, 41A, 43, 44 and 47.
The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126, applied.
Re Bolton; Ex Parte Douglas Beane (1987) 162 CLR 514; Forest Marsh Pty Ltd v Resource Planning and Development Commission [2007] TASSC 50; 16 Tas R 280; Lacey v Attorney-General (Qld) [2011] HCA 10, 242 CLR 573; Registered Organisations Commissioner v Australian Workers Union [2020] FCAFC 202: 281 FCR 518; Northern Land Council v Quall [2020] HCA 33, 383 ALR 378, referred to.
Aust Dig Administrative Law [1001]

REPRESENTATION:

Counsel:
             Applicant:  L De Ferrari SC, K Chan
             First Respondent:     Paul Turner SC
             Third Respondent:   A Spence SC
Solicitors:
             Applicant:  Environmental Defenders Office (Tas)
             First Respondent:     Solicitor-General
             Third Respondent:   Page Seager

Judgment Number: [2022] TASSC 29
Number of paragraphs: 91

Serial No 29/2022
File No 239/2015

TASMANIAN CONSERVATION TRUST INCORPORATED v
FOREST PRACTICES AUTHORITY & JOHN WILLIAM TUCKER &
JOHN EWART TUCKER

REASONS FOR JUDGMENT ESTCOURT J

16 May 2002

The proceedings

The applicant has applied by originating application to quash a decision made on 27 January 2015 by the first respondent, the Forest Practices Authority (the FPA) certifying a forest practices plan that would allow the second respondent John William Tucker, or at least his heir[1] (Mr Tucker Snr), the third respondent, John Ewart Tucker, (Mr Tucker Jnr) to clear 1,800 hectares of native forest at Anson's Bay in north-east Tasmania, formerly owned by Mr Tucker Snr, (the decision).
[1] Mr Tucker Snr died on 17 November 2016.
The application is made under the Judicial Review Act 2000 (Tas) (the JR Act) and/or pursuant to the Court's residual jurisdiction to grant relief in the nature of certiorari. Application is also made pursuant to s 27(1)(c) of the JR Act or r 103 of the Supreme Court Rules 2000 for a declaration that it is not open to Mr Tucker…

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

AGLC: Tasmanian Conservation Trust Incorporated v Forest Practices Authority [2022] TASSC 29
Case: [2022] TASSC 29
Decision Date: 16 May 2022

CaseChat Overview and Summary

In the matter of Tasmanian Conservation Trust Incorporated versus Forest Practices Authority, the dispute arose from the Authority's decision to certify a forest practices plan on a reapplication, following an initial refusal to compensate. The Tasmanian Conservation Trust sought judicial review of this decision, contending that the Authority's delegate did not possess the requisite authority to make the decision, and that the decision was made under the influence of external pressures, thereby vitiating it. The Trust further argued that the Authority did not apply the correct legislative provisions in making the decision to certify, and that the plan submitted for certification was not the same as the one originally applied for.

The central legal issues revolved around the validity of the Authority's decision-making process. Specifically, the court needed to determine whether the delegate of the Authority had the appropriate authority to certify the plan, whether the decision was influenced by external parties, whether the correct legislative provisions were applied in the decision, and whether the plan certified was substantially the same as the one initially applied for. These issues were pivotal in assessing the legality and propriety of the Authority's decision.

The court found that the delegate did not hold the appropriate delegation to make the decision, as the statutory provisions did not permit the reapplication to be considered. Furthermore, there was evidence suggesting that the decision was influenced by external factors, which undermined the integrity of the decision-making process. Additionally, the Authority failed to apply the correct legislative provisions in its decision to certify the plan. The court also determined that the plan certified was not the same as the one originally applied for, as it contained significant changes that were not properly disclosed or considered. Consequently, the court quashed the decision to certify the forest practices plan.

The final orders of the court were that the decision of the Forest Practices Authority to certify the forest practices plan be quashed. The court did not make any further orders regarding the plan or the reapplication process.

Orders