The Wilderness Society v Wild Drake Pty Ltd
[2020] TASSC 34
•6 July 2020
[2020] TASSC 34
COURT: SUPREME COURT OF TASMANIA
CITATION: The Wilderness Society v Wild Drake Pty Ltd [2020] TASSC 34
PARTIES: THE WILDERNESS SOCIETY (TASMANIA) INC
TASMANIAN NATIONAL PARKS ASSOCIATION INC
WEBB, Richard and SMITH, Paul
v
WILD DRAKE PTY LTD
DIRECTOR, NATIONAL PARKS AND WILDLIFE
CENTRAL HIGHLANDS COUNCIL
FILE NO: 95/2020
DELIVERED ON: 6 July 2020
DELIVERED AT: Hobart
HEARING DATE/S: On the Papers
JUDGMENT OF: Estcourt J
CATCHWORDS:
Environment and Planning – Environmental planning – Development control – Management plan – Reserve land – Principles governing consent or approval – Reserve activity assessment – Requirements for development approval – Relationship between legislation and planning scheme in respect of regulation of reserve activity development – Appeal dismissed.
National Parks Reserves Management Act 2002 (Tas).
Land Use Planning and Approvals Act1993 (Tas).
Resource Management and Planning Approvals Act 1993 (Tas).
Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178, 260 FCR 1, referred to.
Aust Dig Environment and Planning [194]
Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Interpretation of planning scheme – Performance-based scheme – Whether tribunal has jurisdiction to assess compliance with management plan to be satisfied of scheme standards – Consistency between legislative and scheme provisions – No jurisdiction – Appeal dismissed.
National Parks Reserves Management Act 2002 (Tas).
Land Use Planning and Approvals Act1993 (Tas).
Resource Management and Planning Approvals Act 1993 (Tas).
Attorney-General of Tasmania v Estcourt and the Wilderness Society Inc (1994), 4 Tas R 355; State of South Australia v Tanner (1989) 166 CLR 161; Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania [2012] TASSC 20, 197 LGERA 1; Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282, referred to.
Aust Dig Environment and Planning [51]
REPRESENTATION:
Counsel:
Appellants: J Forsyth, R Muchinguri
First Respondent: S B McElwaine SC
Second Respondent: M O'Farrell SC
Third Respondent: No appearance
Solicitors:
Appellants: Environmental Defender's Office
First Respondent: S B McElwaine + Associates
Second Respondent: Solicitor General
Third Respondent: Dobson Mitchell and Allport
Judgment Number: [2020] TASSC 34
Number of paragraphs: 67
Serial No 34/2020
File No 95/2020
THE WILDERNESS SOCIETY (TASMANIA) INC, TASMANIAN NATIONAL PARKS ASSOCIATION INC, RICHARD WEBB and PAUL SMITH v
WILD DRAKE PTY LTD, DIRECTOR, NATIONAL PARKS AND WILDLIFE, CENTRAL HIGHLANDS COUNCIL
REASONS FOR JUDGMENT ESTCOURT J
6 July 2020
The issues
When is an "Acceptable Solution" not an "Acceptable Solution"?
This is the principal question, raised by ground 1 of this appeal from a decision of the Resource Management and Planning Appeal Tribunal (the Tribunal). As I apprehend it, the question may be framed as follows:
"When a use of land is permitted by a planning scheme, provided that it meets an 'Acceptable Solution' of being 'undertaken in accordance with a 'Management Plan' approved by the Governor under s 19 of the National Parks and Reserves Management Act 2002, (the NPRM Act) for 'the use, development and management' of any 'reserved land' under that Act, is the Tribunal's jurisdiction limited to the making a factual determination that a management plan exists and that the proposed use is being processed in accordance with it, or is it required to conduct a review of Management Plan itself and/or the 'Reserve Activity Assessment' already conducted under the Management Plan, up to the stage of 'external assessment' under the Land Use (Planning and Approvals) Act 1993 (the LUPA Act)."
The first ground of appeal asserts that:
"The Tribunal erred where it found that:
The only sensible interpretation of Clause 29.3.1 A1 is that the words 'in accordance with a reserve management plan' must relate to the assessment process under the Management Plan which has achieved Step 7 RAA approval. If such a determination has been made then, in the Tribunal's view, A1 is satisfied."
What are the Tribunal's jurisdictional limits as to the validity of a Management Plan?
The alternative question, raised by ground 2 of the notice of appeal, again, as I would frame it, is:
"Does the Tribunal have jurisdiction to conclude that a use is not undertaken in accordance with a Management Plan by determining that the 'Reserve Activity Assessment'[1] (RAA) provided for by the Management Plan was legally defective"?
[1] The RAA is an administrative process that is used by the Parks & Wildlife Service (the PWS) which is part of the Department of Primary Industries, Parks, Water and the Environment, in order to assess whether an activity, or use, proposed to be carried out in areas the subject of management plans approved under the NPRM Act is compatible with the relevant plan.
The second ground of appeal asserts that:
"The Tribunal erred in law by relying on the RAA Decision to satisfy Clause
29.3.1 A1 of the Scheme, when the RAA Decision was defective.Particulars
(a) The RAA Decision was defective because:
iit was made without providing a reasonable opportunity to be heard to persons affected by it, including the Appellants;
ii the Second Respondent and/or the Tasmanian Parks and Wildlife Service deferred aspects of its decision-making, including the assessment of impacts on wilderness values and character of the Tasmanian Wilderness World Heritage Area, to external assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth); and
iiithe definition of 'standing camp' used in the Management Plan was incorrectly applied to the First Respondent's proposed development by the Second Respondent and/or the Tasmanian Parks and Wildlife Service."
The background
The first respondent, Wild Drake Pty Ltd (Wild Drake), sought a permit from the third respondent, the Central Highlands Council (the Council), to develop an accommodation facility on Hall's Island, which is land in the Environmental Management Zone under the Central Highlands Interim Planning Scheme 2015 (the Planning Scheme).
The details of the proposal are set out in the decision of the Tribunal under appeal, Wild Drake Pty Ltd v Central Highlands Council [2019] TASRMPAT 21 at [2] to [7]. It is not necessary to recount them for the purposes of this appeal.
The use was characterised as "visitor accommodation". Under cl 29.2 of the Planning Scheme, "visitor accommodation" was a permitted use only if a reserve management plan applies. The Tasmanian Wilderness World Heritage Area Management Plan 2016 (the Management Plan), applied to Hall's Island and thus the use was a permitted use in the zone.
The Council refused the permit application and Wild Drake appealed to the Tribunal under s 61(4) of the LUPA Act. At the appeal hearing, the only Planning Scheme provision in issue was cl 29.3.1. That clause provides as follows:
Acceptable Solution
Performance Criteria
A1
Use is undertaken in accordance with a reserve management plan
P1
Use must satisfy all of the following:
(a) be complementary to the use of the reserved land;
(b) be consistent with any applicable objectives for management of reserved land provided by the National Parks and Reserves Management Act 2002;
(c) not have an unreasonable impact upon the amenity of the surrounding area through commercial vehicle movements, noise, lighting or other emissions that are unreasonable in their timing, duration or extent.
The Tribunal decided that it needed to determine the extent of any inquiry it was itself authorised to undertake pursuant to cl 29.3.1 A1, in view of the employment in the table, of the words, "use is undertaken in accordance with a reserve management plan".
At [108] of its reasons the Tribunal concluded, as follows:
"It is inescapable that the Management Act and the Management Plan provide for a separate regime for assessment incorporating consideration of matters specifically identified in the Management Act and some matters not ordinarily identified in the LUPA Act. An interpretation of Clause 29.3.1 A1 which disallows a planning authority to undertake a separate assessment of compliance with a Management Plan is, in the Tribunal's view, necessary when regard is had to the following:
a) A merits assessment would, in effect, be a review, or a de novo consideration, of the Management Plan approval process. No power is conferred on this Tribunal to undertake such a review under the Management Act. S 5(2) of the Resource Management & Planning Appeal Tribunal Act 1993 (the RMPAT Act) provides: S5(2) The Appeal Tribunal has such jurisdiction as may be conferred on it by any other Act.
b) The Management Act and the Management Plan operate as the particular development, use and management control that applies to Reserved Land. In the Tribunal's view, this is consistent with the interpretation that the Acceptable Solution does not permit a review and (sic) the objective to provide for use consistent with any strategies for the protection and management of Reserved Land. An interpretation allowing no separate assessment is therefore not inconsistent with the relevant Objective.
c) Such an interpretation does not render the Performance Criteria meaningless. If no applicable management plan existed, then the inquiry to determine compliance with the Performance Criteria is capable of being undertaken.
d) As submitted by the Appellants, the activity that is regulated pursuant to the Management Plan includes, but is broader than, the assessment of use and development pursuant to the LUPA Act. A detailed consideration of the RAA illustrates this point.
e) The Management Plan identifies subject matter considerations that are not normally within the province of councils and, on appeal, this Tribunal. As submitted by the Appellants, many provisions of the Management Plan require an assessment against criteria not normally related to land use, planning and development. The following examples are provided:
• Cultural values management (Part 4 of the Management Plan);
• Visitation (Clause 6.1 of the Management Plan);
• Diversity and quality of experience (Clause 6.2 of the Management Plan);
• Access (Clause 6.3 of the Management Plan);
• Aircraft use (Clause 6.3.3 of the Management Plan);
• Commercial tourism (Clause 6.8 of the Management Plan);
• Visitor safety (Clause 6.9 of the Management Plan);
• Information, interpretation, education (Clause 6.10 of the Management Plan); and
• Economic viability of the Proposal (Clause 1.2 of the Management Plan).
The Tribunal accepts the Appellant's submission that a merits review of much of the matters identified above are in many respects foreign to the regulation of land use and development contemplated by the LUPA Act.
f) If a merits review were permissible, what in essence this Tribunal would be required to do on a hearing de novo is to undertake a consideration of compliance with the Management Plan having regard to all of the evidence presented at the hearing of this appeal. In this appeal, that evidence was extensive. Such a consideration constitutes an entirely different assessment than that undertaken under the RAA process in accordance with the Management Plan. As already noted, the Management Act does not grant a right of appeal or review to this Tribunal. Indeed, the Management Act provides for no right of appeal associated with the approvals process or decisions of the Director."
Accordingly, at [111] the Tribunal then held that "upon a purposive and contextual interpretation of the LUPA Act and the Scheme, and adopting an approach to interpretation that enables both the Management Act, Management Plan, the LUPA Act and the Scheme to continue to operate within their own sphere", all that it was required to determine was whether a management plan existed and whether the use was, "in accordance with the use and development assessment process as provided for in that management plan."
The Tribunal noted that:
"The Management Plan itself contemplates the applicability of the LUPA Act and relevant planning scheme. Part 3.3 of the Management Plan states:
'Where the plan allows for a use to potentially occur (for example, new visitor infrastructure), that activity may be subject to a number of assessment and approval processes …The relevant assessment and approval processes determine if a specific proposal is compatible with the Vision and Management Objectives set out in the Management Plan, in addition to any other lawful requirements. This section of the plan outlines assessment and approval processes that may apply to a range of possible activities within the TWWHA.'
And further, at 3.3.2 of the Management Plan:
'In Tasmania, the Land Use Planning and Approvals Act 1993 (LUPAA) regulates land use and development through the planning scheme administered by a local council. Proposals within the TWWHA may require a statutory assessment process that is provided by LUPAA. Depending on the type of use or development being proposed, the provisions of the planning scheme may require public consultation set out under LUPAA.'"
The Management Plan also sets out the "Steps" to be taken in an RAA. At Step 3.4, headed "Additional External Assessment", the RAA identifies that "the most commonly integrated external assessments are the LUPA Act and EPBC Act but others are also possible – refer to the RAA manual". The proposed "activity" was identified as a discretionary use requiring a development application to be made.
The RAA for the proposal was prepared by Mr Chris Colley. He provided evidence to the Tribunal, which was unchallenged. The RAA itself formed part of his evidence statement. It stated that Step 7 – External Assessment, had been reached and noted that, "at this point the assessment from a PWS perspective is complete and PWS is signalling it plans to approve the activity plan (for a level 2-3 RAA, or a DPEMP for a Level 4 RAA) subject to any further conditions that are imposed by external assessment." (Emphasis added.)
Thus, no final determination had been made, as the LUPA Act external assessment had not been finalised and the RAA, provided for by the Management Plan, approved under the Act, stipulated that the required external assessments formed part of the RAA process.
Notably the Tribunal then held at [112] as follows:
"Accepting that Clause 29.3.1 A1 must be construed as being limited to a factual determination of whether there is a Reserve Management Plan that applies to the proposed use and whether the use would be undertaken in accordance with its procedures, then if the RAA Assessment Process undertaken achieves final determination and approval, in the Tribunal's view, no further inquiry would be required and A1 would be met." (Emphasis added.)
However, the Tribunal then went on to say at [115]-[116]:
"[115] No final determination has been made as the LUPAA external assessment has not been finalised. It is apparent from the RAA process provided for by the Management Plan, that the required external assessments form part of the RAA process. No 'final' determination can be made under the RAA absent completion of those assessments. This is evident from the words set out at Step 7 of the flow chart in figure 3.1 which reads 'proposal not approved under external assessment may not proceed.'
[116] The proposed use will not be undertaken in accordance with the reserve management plan in circumstances where no final determination under the RAA process has occurred. The consequence is an absurd one. If the Management Plan provides that there is no final determination of the RAA for approval until an external assessment is complete (as the external assessment is incorporated within the RAA), then where an external assessment is required through the LUPA Act (or indeed any other external assessment), the acceptable solution at Clause 29.3.1 A1 can never be met. The only sensible interpretation of Clause 29.3.1 A1 is that the words 'in accordance with a reserve management plan' must relate to the assessment process under the Management Plan which has achieved Step 7 RAA approval. If such a determination has been made then, in the Tribunal's view, A1 is satisfied." (Emphasis added.)
By means of that reasoning, the Tribunal held at [117], that the RAA at Step 7 established that an assessment under the Management Plan had been undertaken and that the proposal had "been approved as compliant with the Management Plan, (subject to external assessment)", and thus, the proposal satisfied cl 29.3.1 A1 of the Planning Scheme.
Ground 1 - The appellants' primary contention
The appellants' first contention is that the proper construction of cl 29.3.1 A1 of the Planning Scheme requires that the Council, and on appeal, the Tribunal, make their own assessment of whether the use of the land as proposed in Wild Drake's permit application "is undertaken in accordance with a reserve management plan".
The appellants submit that the Management Plan is a high-level strategic policy intended to be implemented via other statutory processes, including approvals under the LUPA Act, and that to so construe the Act does not give rise to any absurdity or irreconcilable inconsistency.
The appellants' second contention is that it was not open to the Tribunal to treat Step 7 of the RAA as satisfying cl 29.3.1 A1 of the Planning Scheme, as that Step had no operative legal or determinative effect, either as a matter of interpretation of the Planning Scheme or of the Management Plan, and also, by virtue of the absence of primary or subordinate legislation giving the RAA, any operative effect on legal rights, interests or obligations.
In the Management Plan, the RAA is described as an "adaptive process" and that is "the PWS assessment process for activities on reserved land that could have a potential impact on reserve values". It is described that an "RAA helps the PWS to assess and document:
· an activity's compliance with relevant statutes, policies and plans;
· an activity's environmental, social and economic benefits and impacts;
· the actions to be taken to maximise benefits and minimise impacts;
·whether a proposal is approved, approved with conditions or not approved; and
· whether the activity, when completed, achieved its stated objectives."
In their written outline of facts and contentions, counsel for the appellants, Ms Forsyth and Ms Muchinguri summarise the Steps taken in the Halls Island RAA as follows:
"The Halls Island RAA Steps
42The Halls Island RAA process commenced in September 2017 and by October 2017, the development had reached the end of 'Step 2' and received 'concept approval' through the RAA process.
43Step 2 of the Halls Island RAA is explained by Chris Colley, Regional Manager North of the Parks and Wildlife Service (PWS) as follows:
Concept Review: this step considers the activity as described in step 1 against applicable legislation, policy, management plans and any subsidiary plans that may be in existence. This step determines if there are any clear reasons that the proposal cannot proceed eg an activity is specifically excluded by a Management Plan. Regional Manager receives advice from a number of PWS staff following their review of information provided and makes a determination on progression to comprehensive assessment at this step. Concept approval for Halls Island was provided on 9 October 2017.
44On 11 January 2018, the Halls Island RAA had reached the end of 'Step 3' and the level of assessment had been determined. Mr Colley explains Step 3 as follows:
Assessment Scope: Level of RAA (2, 3 or 4) is determined in this step. The level of supporting documentation required and extent of internal and external assessment is also determined. In this case, Level 3 RAA was determined, requiring surveys of flora, fauna, Aboriginal heritage, historical heritage information, design and construction information. The assessment scope, including a recommendation to the PWS General Manager to refer under the EPBC Act, was made 11 January 2018.
45Step 4 of the Halls Island RAA lists the 'impacts' and 'benefits' of the proposal and 'control options' in a table. The table was filled out by the proponent.
46Step 5 of the Halls Island RAA contains a summary of comments received from:
a) PWS (Planning);
b) Aboriginal Heritage Tasmania; and
c) The Policy and Conservation Advice Branch (PCAB) of DPIPWE.
47 Step 6 of the Halls Island RAA contains the Activity Plan:
The Activity Plan shows the key actions required to ensure that short and long term high risk aspects of the activity are minimised or addressed and legislative requirements are met. These are actions that are critical to implement to achieve the environmental, social and economic outcomes…
48 Step 7 of the Halls Island RAA is described in the RAA as follows:
If the activity does require external assessment (as identified at Step 3), this takes place at this step. At this point the assessment from a PWS perspective is complete and PWS is signaling it plans to approve the Activity Plan (for a level 2-3 RAA, or a DPEMP for a Level 4 RAA) subject to any further conditions that are imposed by external assessment.
49On 14 March 2018, both Mr Colley and PWS General Manager, Mr Jason Jacobi 'endorsed' the proposal 'for external assessment', including referral under the LUPA Act and EPBC Act (Step 7)."
The appellants submit that the Management Plan is a relevant "strategy" for "the protection and management of reserved land" and the Acceptable Solution gives effect to that strategy by permitting a permit to be granted for a use which is undertaken in accordance with the Management Plan.
The appellants submit, that when read in context, the words "undertaken in accordance with" mean consistently, or in conformity, with the Management Plan, and the Council, and the Tribunal on review, was required to determine whether or not the proposed use met the Acceptable Solution. It is argued, that the Tribunal failed to do so, instead relying on Step 7 to relieve itself from the obligation to determine whether or not the proposed use met the Acceptable Solution.
Citing Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland (1979) 142 CLR 460 at 479 per Gibbs J, the appellants submit that a power can only be validly exercised by the authority upon whom it was conferred, and its exercise cannot be delegated to someone else, unless the statute, upon its proper construction, permits such delegation. The appellants note that neither the Planning Scheme, nor any other instrument, delegated the assessment required by cl 29.3.1 A1 to the second respondent (the Director), or his staff, and argue that the decision as to whether there was compliance with the Acceptable Solution was thus a decision for the Tribunal.
Nor, the appellants submit, does the Management Plan require, either expressly or by implication, that any assessment of a proposal against the Management Plan can only be undertaken by the Director. Rather, to the contrary, they submit that the Management Plan specifically contemplates that there may be a "number of" assessment and approval processes.
The appellants note in this regard that Part 3.3 of the Management Plan states:
"Where the plan allows for a use to potentially occur (for example, new visitor infrastructure), that activity may be subject to a number of assessment and approval processes …The relevant assessment and approval processes determine if a specific proposal is compatible with the Vision and management Objectives set out in the Management Plan, in addition to any other lawful requirements. This section of the plan outlines assessment and approval processes that may apply to a range of possible activities within the TWWHA."
The appellants point out that the Management Plan expressly contemplates that there may be proposals which require the statutory assessment process that is provided by the LUPA Act. They refer to cl 3.3.2 of the Management Plan, which provides:
"In Tasmania, the Land Use Planning and Approvals Act 1993 (LUPAA) regulates land use and development through the planning scheme administered by a local council. Proposals within the TWWHA may require a statutory assessment process that is provided by LUPAA. Depending on the type of use or development being proposed, the provisions of the planning scheme may require public consultation set out under LUPAA."
The appellants also note, as did the Tribunal, that it is evident from the words set out at Step 7 of the flow chart in figure 3.1 of the Management Plan, which states that a "proposal not approved under external assessment may not proceed" that a proposal may proceed through the RAA to the step of external assessment, and then not be approved after that Step.
The appellants submit that the Management Plan therefore contemplates that there will be separate, independent assessment processes and that the Management Plan reconciles the potentially different outcomes by giving priority to the outcome of the external assessment.
The appellants conclude that there is, therefore, nothing in either the Planning Scheme or the Management Plan which supports the Tribunal's finding that the words "in accordance with a reserve management plan" must relate to the PWS "internal" RAA process. Moreover they submit that the RAA process is not contemplated, much less prescribed by, the NPRM Act or the regulations made under the NPRM Act or the National Parks and Reserved Land Regulations 2009.
Ground 1 - Wild Drake's primary contention
Wild Drake contends that the appellants' arguments fail to understand that the Acceptable Solution turns upon two uncomplicated factual inquiries: one, whether there is a management plan and the other: will the proposed use be undertaken in accordance with it or, phrased in a more satisfactory way, will the use be subject to a management plan?
The jurisdictional point
It argues, firstly however that the Tribunal has no jurisdiction to review the land management function of the Director exercised pursuant to a statute that does not confer any jurisdiction upon a planning authority or the Tribunal.
Although lengthy, it is convenient to set out in full the written submissions of counsel for Wild Drake, Mr McElwaine SC, as to the jurisdictional question. He contends as follows:
"The jurisdiction question
6 The starting point is the Parks Act. The Director of National Parks and Wildlife (the Director) is a person appointed under s.6. His or her functions are listed at s.7 as follows:
'(1) Subject to this Act, the Director has the following functions:
(a) acting as a managing authority as required under this Act and giving advice and assistance to other managing authorities;
(b) keeping the setting aside of land for conservation purposes under review;
(c) carrying out, or arranging for the carrying out of, research and other activities that appear to the Director to be desirable in connection with the administration of this Act;
(d) carrying out, or promoting the carrying out of, educational activities, and providing and disseminating information, related to the conservation of the fauna, flora or geological diversity of the State or other matters arising in connection with the administration of this Act;
(e) providing to the Council and the special advisory committees such information as they may require and is reasonably available to the Directorin connection with the carrying out of his or her functions under this Act;
(f) preparing plans, in relation to reserved lands, with a view to their submission to the Governor for approval as Management Plans for those lands and keeping the provisions of Management Plans under review;
(g) providing effective means for the enforcement of the regulations;
(h) carrying out functions, as agreed by the Director, in relation to land which is, or becomes, the subject of a conservation covenant under Part 5 of the Nature Conservation Act 2002.'
7 These are land management functions conferred over land that is owned by the Crown and which is either a national park, a nature recreation area or a nature reserve each within the meaning of the Nature Conservation Act 2002 [s 3]. In the exercise of the land management functions, the Director is to have regard to the Resource Management and Planning System Objectives of Tasmania, which are listed in familiar terms at schedule 2 of the Act [s 5(1)]. Where a management plan is in place for reserved land, its provisions prevail to the extent of any inconsistency with the Resource Management and Planning System Objectives[s 5(2)]. Schedule 1 contains a list of objectives for prescribed categories of reserved land. In the matter before the Tribunal it was concerned with the Walls of Jerusalem National Park and the Central Plateau Conservation Area. Section 3(1) defines the 'management objectives' as those specified in schedule 1. For present purposes it is relevant to note that for a national park those objectives include the conservation of natural biological diversity; the encouragement of and provision for tourism; 'recreational use and enjoyment consistent with the conservation of the national park's natural and cultural values'; and the encouragement 'cooperative management programs with Aboriginal people in areas of significance to them.' For the conservation area, the objectives include the conservation of natural biological diversity; the preservation of the quality of water and water catchments; provision for 'the controlled use of natural resources including special species of timber for harvesting'; 'to provide for exploration activities and utilization of mineral resources'; to 'encourage appropriate tourism, recreational use and enjoyment (including private uses) consistent with the conservation of the conservation area's natural and cultural values'; and the encouragement of 'cooperative management programs with Aboriginal people in areas of significance to them.'
8 A primary function of the Director pursuant to s.7(1)(f) is to prepare plans for the management of reserved lands with a view to approval by the Governor. Part 3 of the Act is concerned with the management of reserved land. By s.19(2) 'plans for the use, development and management of any reserved land may be approved by the Governor.' Elaborate provisions are set out for the formulation of draft management plans, for consultation and for ultimate submission to the Minister for consideration and referral to the Governor at ss.20-28For the purposes of this appeal it is sufficient to note that the Director is to prepare a draft management plan[s 20(2)], he or she is to consult with relevant departments or statutory authorities that may be affected by a plan [s 20(4)], a draft plan is to be publicly notified, representations may be made by any person within the 30 day notification period [s 20(12)(b)], the Director must then review the representations and provide a draft of the plan to the Tasmanian Planning Commission together with the expression of an opinion as to the merit of each of the representations [s 21]. The Commission then conducts a further review and determines whether to hold public hearings [s 21], the Commission is obliged to give public notification of the report of the Director [s 23] and ultimately the Commission is to submit a report to the Minister with its findings together with copies of each of the representations.[s 24] Notification of the report of the Commission must be published in the Gazette, and copies must be made available for public inspection.[s 24(20]. Once the Minister receives the reports and the draft plan from the Commission, he or she is to review it[s 25(2)and(3)] before it is submitted to the Governor for approval. [s 25(1)].
9 Section 27 sets out the content of a management plan and it relevantly provides as follows:
'(1) A Management Plan for any reserved land –
(a) may indicate the manner in which the powers of the managing authority under this Act are to be exercised in relation to that land, or any part of that land; and
(b) may prohibit or restrict, in relation to that land or any part of that land, the exercise of those powers; and
(c) if the land is a private sanctuary or private nature reserve, may specify the cases and the circumstances in which the owner of the land is bound by the regulations; and
(d) is to specify the purposes for which that land was reserved; and
(e) if the Management Plan relates to particular land of a single class, is to specify any or all of the management objectives which apply to land of that class as the objectives for which the land is to be managed; and
(f) if the Management Plan relates to particular land of a single class, is to specify the reasons for which any management objectives for that class of reserved land –
(i) have been specified in the Management Plan as the objectives for which that land is to be managed; and
(ii) have not been specified in the Management Plan as the objectives for which that land is to be managed; and
(g) if the Management Plan relates to more than one class of reserved land, is to specify any or all of the management objectives for each class of reserved land as the objectives for which the land in that class is to be managed; and
(h) if the Management Plan relates to more than one class of reserved land, is to specify the reasons for which any management objectives for any of those classes –
(i) have been specified in the Management Plan as the objectives for which the land in that class is to be managed; and
(ii) have not been specified in the Management Plan as the objectives for which the land in that class is to be managed; and
(i) may specify any condition that applies to the application of any management objective specified in the Management Plan; and
(j) is to specify the manner in which the management objectives specified in the Management Plan are to be achieved; and
(k) may contain any other provisions that are authorised by this Act to be contained in that plan.'
10 Subject to presently irrelevant exceptions, the Director 'is the managing authority for all reserved land' pursuant to s.29(1). As such his or her functions and powers are set out at s.30. Where a management plan operates, the Director 'is to manage that land for the purpose of giving effect to the management plan and in accordance with that plan'[s 30(1)(a)]. By s 30(2):
'For the purpose of the discharge of his, her or its functions in relation to any reserved land, a managing authority may do, or arrange for the doing of, all things he, she or it considers necessary, including the erection or construction of any buildings or other works and the purchase or other acquisition of any things.'
11 Subsection (3) operates, without limiting the generality of subsection (2), by listing certain powers that the Director may exercise which list includes the provision and maintenance of 'facilities and conveniences for the use or benefit of persons resorting to reserved land.'[s 30 (30(a)]
12 By s 35(1) a 'statutory power' may not be exercised in relation to reserved land 'except where the exercise of the power is authorised by the management plan for that land.' What is meant by a statutory power has the meaning limited by the definition at s 3(1) which reads;
'(a) a power under an enactment, other than this Act, for one or more of the following purposes:
(i) the reservation or dedication of Crown land for any purpose;
(ii) the alienation of, or the grant of private rights in or over, any such land;
(iii) the carrying out of any works or other operations on any such land; and
(b) a power that, under an enactment other than this Act, may be exercised by a public authority in relation to land vested in it.'
13 What is presently noteworthy about this definition is that development may not be undertaken on reserved land where a management plan operates unless the exercise of the power to do so is authorised by the plan.
14 It is not open to a private person to undertake commercial activities on reserved land absent a business licence granted by the Minister pursuant to s.40. The relevant prohibition at s.38 is that a person who is not the holder of a business licence must not, inter alia, 'provide, offer to provide or hold himself or herself out as willing to provide any service of facility for any monetary or other consideration.' In this case the first respondent was granted a business licence to provide visitor accommodation at Lake Malbena on 19 January 2018. The Minister may also grant a lease to occupy reserved land that is Crown land pursuant to s.48. By s.48(5) the Minister 'may not grant a lease or licence that authorises or requires the lessee or licensee to erect a building within a national park' or State Reserve unless 'the erection of the building is permitted under the management plan.'The first respondent is the holder of a lease granted by the Minister in the exercise of this power which is combined with the business licence as granted on 19 January 2018.
15 The only role that a council has to play in this statutory regime is that, if it is proposed to make a management plan in respect of any land vested in a public authority [defined at s.3 to include a council under the Local Government Act 1993] and within a conservation area, then the plan 'may only be prepared in consultation' with the council [s 20(1)]. The Parks Act does not confer any other function or power upon a council as such nor one that acts as a planning authority pursuant to LUPAA. It does it confer any jurisdiction upon the Tribunal.
16 The management plan in this case is the Tasmanian Wilderness World Heritage Area Management Plan 2016 (the Management Plan) that was made by the Governor on 29 November 2016. Put at its highest, the Management Plan at paragraph 3.2.2 contemplates that proposals within the World Heritage Area 'may require a statutory assessment process' as provided for in LUPAA. As is well understood, the Tribunal does not enjoy plenary jurisdiction to review administrative processes, procedures or decisions.
17 The Planning Scheme was made by the Minister in exercise of the powers that were conferred at s.30F of LUPAA. The ministerial exercise of that power was constrained by s.30F(3). Inter alia, the Minister was only authorised to declare an interim planning scheme if it complied with ss.20, 21 and 30E. Speaking generally, s 20(2)(aa) authorised the making of a planning scheme containing provisions relating to 'the use, development, protection or conservation of any land' in a municipal area. The whole of the appellants' arguments assume that it was open to the Minister to make clause 29.3.1A1 of the Planning Scheme so as to confer, first upon a planning authority and thereafter upon appeal to the Tribunal, authority to decide questions that relate to the management function of the Director pursuant to the Parks Act. That is a jurisdictional question [CGU Insurance Ltd v Blakeley [2016] 259 CLR 339 at [31], French CJ, Kiefel, Bell and Keane JJ; Masson v Parsons [2019] HCA 21; (2019) 93 ALJR 848 at [57], Edelman J.]. Plainly neither a planning authority nor the Tribunal may exercise that jurisdiction for the straightforward reason that the Director is the managing authority pursuant to the Parks Act generally [s 7 (1)(a)] and specifically pursuant to the Management Plan [s 29(1)]. The statutory scheme of the Parks Act is not concerned with the making of land use planning decisions pursuant to LUPA. Nor is it open to the Minister, or a planning authority, to arrogate jurisdiction of that kind for the straightforward reason that it is vested by statute elsewhere.
18 For similar reasons it follows that if the appellants' construction argument is correct, then clause 29.3.1A1 is ultra vires. Conversely, if it is construed as raising for inquiry no more than the fact that the use proposed will be subject to the Management Plan and thus by definition undertaking the use must be in accordance with it, then no ultra vires question arises. Construing the Planning Scheme provision as within the scope of the Ministerial power to make it is consistent with the orthodox approach to the construction of delegated legislative provisions made in the exercise of permissive statutory power.[ As to construing delegated legislation to be within power see, generally, Pearce and Argument: Delegated Legislation in Australia, 5th ed at [30.7], particularly by reference to Griffith CJ in Widgee Shire Council v Bonney (1907) 4 CLR 977 at 983: 'When a by-law is open to two constructions, on one of which it would be within the powers of the local authority, and on the other outside of these powers, the former construction should be adopted.']" (Footnotes in square brackets.)
The Director's submissions touching on the jurisdictional point
The Director submits as follows:
"Incorporated documents
37 The only pathway for the appellants to engage with the Management Plan before the Tribunal was through cl 24.3.1 A1 of the Planning Scheme. Thus, for the appellants to make out ground 2, they will need to establish that questions relating to the validity of the Management Plan and the processes conducted under its auspices were within the jurisdictional limits of the Tribunal by the application of cl 24.3.1 A1. That would entail two conclusions. First, that when the Tasmanian Planning Commission (‘the Commission’) made the Planning Scheme and included the words ‘in accordance with a reserve management plan’ in cl 24.3.1 A1 of the Planning Scheme, it was entitled to enlarge the Tribunal’s jurisdiction. Secondly, it would follow from that proposition that the validity of any number of documents and processes ‘called up’ by a planning scheme to set planning norms against which the merits of a proposal are to be assessed would be ripe for challenge before the Tribunal. For example, the acceptable solution in E19.7.3.1 of the planning scheme that ‘Telecommunications infrastructure must not be located in an area of environmental significance’ would entitle the Tribunal to question the applicability (as opposed to applying the standards as a factual test) of the Telecommunications (Low Impact Facilities) Determination 1997 (Cth) , because it is no longer in force.
38 The last point suggests the correct approach to construction of the planning scheme, namely that the question of whether something is prohibited by, or done in accordance with, another instrument, is one of fact, and does not involve an inquiry into the validity of the instrument itself. It is submitted that it simply cannot be correct that the incorporation of a document by reference into a Planning Scheme entitles the Tribunal to examine and pronounce on its validity. And, if the Tribunal is not entitled to do that, it also has no jurisdiction to examine an administrative process carried out to determine whether or not a proposed activity or use is or is not compatible with the content of that document."
The appellants' response to the jurisdictional point
The appellants respond to the jurisdictional point in their written submissions in reply as follows:
"The 'jurisdictional' argument
35 The First Respondent argues at [17]:
'The whole of the appellants' arguments assume that it was open to the Minister to make clause 29.3.1A1 of the Planning Scheme so as to confer, first upon a planning authority and thereafter upon appeal to the Tribunal, authority to decide questions that relate to the management function of the Director pursuant to the Parks Act.'
36Contrary to that submission, the Appellants do not argue that the Tribunal must 'review' the 'land management function' of the Second Respondent. The Appellant's do not argue, and never have argued, that the Tribunal's role is to conduct a 'review' of either the RAA or 'step 7'. Rather, the Appellants argue that the two regimes sit together and are complementary.
37There are numerous authorities to support the proposition that multiple decisions may need to be made under different statutes notwithstanding that they consider the same, or similar, subject matter [See for example State of South Australia v Tanner (1989) 166 CLR 161, Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania [2012] TASSC 20; 197 LGERA 1 at [69]-[73]; and Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282per Kirby P at 294]. Here, for the reasons articulated above, the Second Respondent is not even required to make a decision as to whether or not the use is in accordance with the Management Plan prior to the proposal proceeding.
38Further, the First Respondent's 'jurisdictional' argument is illogical: it says the Scheme cannot require the use to be, in fact, in accordance with the Management Plan because that is a matter that is regulated by the NPRM Act and hence it must be assumed to be so, and it says this notwithstanding that compliance with the Management Plan is not a requirement of the NPRM Act.
39On the First Respondent's reading of the Scheme, a permit applicant "could point to the mere existence of" the Management Plan 'and that would be enough' [adopting the wording used in Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178; 260 FCR 1 at [181]]. The First Respondent's argument would leave the objective of cl 29.3.1 - for the use to be 'consistent with [the relevant] strategies for the protection and management of reserved land' – unfulfilled.
40 The First Respondent says at [17]:
'The statutory scheme of the Parks Act is not concerned with the making of land use planning decisions pursuant to LUPA …'.
41The Appellants agree, and that is another reason why there is no irreconcilable inconsistency in giving the Scheme its plain and ordinary meaning."
Discussion as to the jurisdictional point
The Tribunal approached the question of its jurisdiction by interrogating the question of whether the NPRM Act impliedly repealed the LUPA Act with respect to the management of reserved land. It concluded at [76]-[77] as follows;
"76 The Tribunal accepts the submissions of the Council and the First Parties Joined, that both the Management Plan and the provisions of the Scheme contemplate the other's assessment process and can co-exist. How comfortably they can do so, however, may depend on the interpretation of Scheme provisions. No inconsistency is evident which would justify an implied repeal.
77 The LUPA Act and the Management Act do not exclude the operation of the other. In the Tribunal's view, had Parliament intended the provisions of the LUPA Act be excluded from operation with respect to Reserved Land, simple mechanisms existed for doing so. The reference to the applicability of the LUPA Act, although not well defined, in the Management Plan supports this interpretation."
As I apprehend it, that was not exactly the submission made on behalf of the Attorney-General on this point, notwithstanding the use of the words "covers the field". The Tribunal summarised the Attorney-General's submission at [34] as follows:
"The Attorney-General intervened in the proceedings before the Tribunal. The Attorney-General contends that the Tribunal does not have jurisdiction to entertain this appeal as the National Parks & Reserves Management Act 2002 (Management Act) covers the field with respect to the management of Reserved Land as specific provision is made for the use and development of Reserved Land in the Management Act. It was submitted that those specific provisions are set out in Part 3 and must be construed such that the LUPA Act has no work to do. It was submitted that 'Reserved Land' which is the subject of the management plan is taken outside the provisions of the LUPA Act that would otherwise apply. In essence, the Attorney-General's submissions, if accepted, mean that there was no obligation by the Appellant pursuant to s 51(1) of the LUPA Act to apply for a planning permit. That the Reserve Activity Assessment carried out pursuant to the Management Plan identified a requirement for that external assessment as part of the overall assessment under the Management Plan, it was submitted, is of no significance." (Emphasis added.)
I infer, that when stating that the "LUPA Act would otherwise apply", the Tribunal had in mind s 4 of that Act, which provides:
"Application of Act
(1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
(2) Subject to subsection (3), this Act applies to all parts of the State except such parts as may from time to time be prescribed in the regulations and, in particular, applies to land in Wellington Park, as defined in the Wellington Park Act 1993 .
(3) Part 3 of this Act does not apply to public land, within the meaning of the Public Land (Administration and Forests) Act 1991, that is the subject of a reference to the Commission."
To my mind, the question is not whether the NPRM Act, in particular, ss 19, and 30(1)(a), which respectively provide that plans for the use, development and management of any reserved land may be approved by the Governor, and that the managing authority is required to manage the land for the purpose of giving effect to the management plan and in accordance with that plan, operate as a carve out from the operation of the LUPA Act, ss 11 and 51, which, respectively, provide for what may be provided for in a planning scheme and require the granting of a permit for a use or development proposed under a planning scheme. Rather, in my view, the question is whether the Tribunal has jurisdiction to entertain the interrogation of whether a particular use and development of reserved land for which provision is made in a management plan made pursuant to the provisions of the NPRM Act, answers the description given to it in the plan. The issue so framed is more in line with the written submissions made in the present proceeding on behalf of Wild Drake,
Justice Mortimer said in VicForests above, at [209], correctly, but with respect, perhaps not in all contexts, that:
"The meaning which is given to 'in accordance with' is one which requires the content of the document, or regulation, or rule to be ascertained, and then for the conduct to be measured against that content".
However, if a management plan, even absent an RAA process, specified that a particular development was permitted, and identified it sufficiently by name, description and geographical location, it would be absurd to think that the legislature contemplated that an application was required under the relevant planning scheme, or that a permit was required under the LUPA Act. Much less that the Tribunal had jurisdiction to "measure" the "conduct" compromising the carrying out of the development, against the "content" of the management plan approval.
That extreme example must be the starting point of an examination of Wild Drake's jurisdictional point, because, if that be correct, then it ought follow as a matter of logic and principle, that even if there is a submission by a developer to the expressed requirements of a planning scheme, and to s 51 of the LUPA Act, either voluntarily or at the request of the Director, the Tribunal cannot use that as a basis to confer on itself a jurisdiction it does not have.
The appellants' submit that "[t]he more proscriptive a document is, the easier it will be to identify whether conduct is 'in accordance with' or not "in accordance with" the document. If something is expressly prohibited by a document, then clearly it will not be "in accordance with" the document." They argue the proposed development is not, and cannot be, subject to the Management Plan because it is not new visitor accommodation which is a permissible use if it is a "standing camp", but is "hut accommodation", which is a prohibited use in the Table of Uses in the Plan. They argue that such an inquiry is a simple one and does not involve the Tribunal in a wide ranging merits review of the Management Plan or the RAA.
However, the Tribunal's jurisdiction, cannot depend on quantitative considerations, or nomenclative considerations limited to, or arising only in, cases involving the discernment of a distinction between a described use, which is permitted by a management plan, and another described use which is prohibited. And the Tribunal's jurisdiction cannot depend upon the extent of the proscription of a use or development, thus having jurisdiction in some cases, but not in others.
The appellants' submit that:
"Here, the Management Plan contains a prohibition on certain activities in the Table of Use, including a prohibition on visitor accommodation in the form of huts. The Appellants' primary argument before the Tribunal is that the use for 'hut accommodation' (as described in the lease) is 'not permitted' by the Management Plan and therefore not in 'compliance' or in 'conformity' or 'in accordance' with the Management Plan."
As I apprehend it, that submission simply begs the question of whether the Tribunal has jurisdiction to make such a determination. It cannot call in aid of such jurisdiction, an application for a permit under a planning scheme, if such an application was not required.
As noted, counsel for the Attorney General, Mr Turner SC, submitted to the Tribunal that Wild Drake was under no obligation pursuant to s 51(1) of the LUPA Act to apply for a planning permit, and the fact that the RAA carried out pursuant to the Management Plan identified a requirement for external assessment as part of the overall assessment under the Management Plan was of no significance.
Whether or not that is so, an application for a permit would certainly not be required if the planning scheme provision was ultra vires. However, Wild Drake appears to concede that the disputed provision in the present case would not be ultra vires if, on its proper construction, all that was necessary was for the planning authority, and on review, the Tribunal, to simply satisfy itself, as a matter of fact, that the development was "subject to" a reserve management plan.
That must be correct. In my view, that is the preferred construction in this case for all of the reasons advanced by Wild Drake in its written submissions.
And, although made with reference to ground 2 of the notice of appeal (which in view of my conclusion, it is unnecessary to consider), I accept the validity of the Director's submission that the correct approach to the construction of a planning scheme on the question of whether something is prohibited by, or done in accordance with, another instrument, is one of fact, and does not involve an inquiry into the instrument itself.
Incorporation of a document by reference into a planning scheme, as the touchstone of an "Acceptable Solution", without more (as is the case for example with a policy created under the State Policies and Projects Act 1993), does not entitle the Tribunal to examine the document to determine whether or not a proposed activity or use is or is not compatible with the content of that document.
The Tribunal does of course have jurisdiction to examine documents and construe them in order to determine whether it has jurisdiction, or to mould its own procedures - Attorney-General of Tasmania v Estcourt and the Wilderness Society Inc (1995) 4 Tas R 355. So, for example, if the Tribunal had jurisdiction, conferred on it by the NPRM Act to assess a proposal against the Management Plan only if it was a "standing camp", it would have jurisdiction to assess the proposal against the Management Plan in order to determine that the proposal was not a "standing camp", but prohibited visitor accommodation in the form of huts, and thus that it had no jurisdiction to grant a permit under the LUPA Act. What it cannot do however is to confer jurisdiction on itself to make such a determination simply because the Management Plan is incorporated by reference into the Planning Scheme.
The construction advanced by Wild Drake and supported by the Director is the only construction which allows the Management Plan and the Planning Scheme to harmoniously and sensibly co-exist, and it does not call for a consideration of whether the RAA process is complete, or amounts to a "decision". Nor does it call for consideration of whether the RAA process was "defective" if it was made without providing a reasonable opportunity to be heard to persons affected by it, including the appellants, or because the Director or the TPWS impermissibly deferred aspects of its decision-making to external assessment.
I accept the observation of the appellants in their written submissions in reply, that there are numerous authorities to support the proposition that multiple decisions may need to be made under different statutes notwithstanding that they consider the same, or similar, subject matter. To my mind however, that is not the issue here and the cases they cite, namely State of South Australia v Tanner (1989) 166 CLR 161; Tasmanian Advanced Minerals Pty Ltd v Forestry Tasmania [2012] TASSC 20, 197 LGERA 1 at [69]-[73] and Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282per Kirby P at 294 are not in point. The present case is not one of inconsistent statutory provisions. It is a case of the extent of the Tribunal's jurisdiction where an external land management document is incorporated, simply by reference, into a planning scheme.
The Management Plan sets out at Step 3.4, headed "Additional External Assessment" that "the most commonly integrated external assessments are the LUPA Act and EPBC Act but others are also possible – refer to the RAA manual". However that is wholly insufficient to confer on the Tribunal, jurisdiction it would otherwise lack.
So too, is the statement in Part 3.3 of the Management Plan that:
"Where the plan allows for a use to potentially occur (for example, new visitor infrastructure), that activity may be subject to a number of assessment and approval processes …The relevant assessment and approval processes determine if a specific proposal is compatible with the Vision and Management Objectives set out in the Management Plan, in addition to any other lawful requirements. This section of the plan outlines assessment and approval processes that may apply to a range of possible activities within the TWWHA."
And likewise, the statement at cl 3.3.2 that:
"In Tasmania, the Land Use Planning and Approvals Act 1993 (LUPAA) regulates land use and development through the planning scheme administered by a local council. Proposals within the TWWHA may require a statutory assessment process that is provided by LUPAA. Depending on the type of use or development being proposed, the provisions of the planning scheme may require public consultation set out under LUPAA."
Under s 5(2) the RMPAT Act, the Tribunal has such jurisdiction as may be conferred on it by any other Act. In this regard it is of some interest that the NPRM Act does actually confer jurisdiction on the Tribunal as an arbitrator under s 19(9), if the Director does not receive the agreement of the owner of a private nature reserve for a management plan to be prepared. But there is no reference to the Tribunal in the NPRM Act in any other context.
I do not accept the appellants' submission that, as neither the Planning Scheme, nor any other instrument, delegated the assessment required by cl 29.3.1 A1 to the Director, or his staff, then the decision as to whether there was compliance with the Acceptable Solution was a decision for the Tribunal. That submission ignores the question of the source of the Tribunal's jurisdiction, which is at the core of the dilemma.
I also note that a conclusion that the Tribunal has the jurisdiction contended for by the appellants is not compelled on the basis that they would otherwise be left without a remedy. If the appellants wish to contend that the proposed development is not, and cannot be, subject to the Management Plan because it is not new visitor accommodation which is a permissible use if it is a "standing camp" but is "hut accommodation", which is a prohibited use in the Table of Uses in the Plan, then they could take action against the Director for relief in the nature of prohibition or certiorari, or seek declaratory relief. And if the appellants wish to pursue the question of whether the RAA process was defective for the reasons they assert, then they could take similar action.
Finally I observe, that whilst obviously not dispositive, the construction I have accepted as correct has the additional advantage (if it be an advantage), of bringing the bedevilled, contested provision in the Planning Scheme into conformity with like provisions in some other planning schemes in which it is expressly provided that where the use is in accordance with an RAA, or is advised by the management authority as being in accordance with a reserve management plan, then the relevant use standard (acceptable solution) is met. The wording of cl 29.3.1 A1 of the Launceston Interim Planning Scheme 2015 and the Central Coast Interim Planning Scheme 2013, although still lacking some precision, would not permit a merits review of a Management Plan or an RAA process.
In saying that I recognise that a number of other schemes have a provision identical to Clause 29.3.1 A1 of the Central Highlands Interim Planning Scheme. Ultimately this may be a question for the legislature.
Disposition
It follows from all that I have said that, while it is apparent that I do not necessarily embrace all of the Tribunal's reasoning, I can detect no error in the outcome at which it arrived, albeit, that, to an extent, it was, based on a consideration of the existence of the RAA.
Neither ground of appeal succeeds. The appeal is dismissed.
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