Board of the Environmental Protection Authority (Party Joined)

Meander Watch Meander Valley Incorporated (Proposed Party Joined)

Mine Watch Meander Valley Incorporated be joined as a party to each appeal.

Environment and planning - Planning appeal - Parties to proceedings - Application for joinder of party - Whether interest affected - Whether reasonable to expect representation to have been made - Environmental lobby group incorporated after representation period closed.

Associations Incorporation Act 1964;

Environmental Management and Pollution Control Act 1994;

Land Use Planning and Approvals Act 1993;

Tasmanian Civil and Administrative Tribunal Act 2020, Sch 2, Pt 8, cl 8.

Action View Tas Pty Ltd and ors v Clarence City Council [2020] TASRMPAT 20;

Australian Conservation Foundation Inc. v Commonwealth (1980) 146 CLR 493; [1980] HCA 53;

Bellerive Yacht Club Inc v Clarence City Council [2024] TASCAT 191;

Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824;

Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1;

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50;

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34;

VicForests v Kinglake Friends of the Forest Inc. (2021) 66 VR 143; [2021] VSCA 195.

Party Joined: K Barwick - Environmental Protection Authority

EDITED REASONS FOR DETERMINATION DELIVERED ORALLY ON 25 JULY 2025

1. Mine Watch Meander Valley Incorporated (Mine Watch) has applied to be joined as a party to two appeals under the Land Use Planning and Approvals Act 1993 (LUPAA). Each appeal relates to approval granted by the Meander Valley Council (the Council) to ABx Group Ltd (ABx) for quarrying; particularly, shallow surface extraction of bauxite ore from a pine plantation off Porters Bridge Road in Reedy Marsh.
2. The first appeal is by ABx against the Council's imposition of particular conditions on the permit under the Environmental Management and Pollution Control Act 1994 (EMPCA). The second appeal is by Mr Wasserfall against the Council's grant of a permit.
3. Mine Watch, like Mr Wasserfall, opposes the quarry. It wants to be made a party to each appeal. The Council and the Board of the Environment Protection Authority (the EPA) oppose Mine Watch being joined. Each made submissions. Neither Mr Wasserfall nor ABx has made any submissions.

1. Clause 8 of Pt 8 of Sch 2 to the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act) regulates the parties to proceedings in the Tribunal's Resource and Planning stream. It relevantly provides:

7. Parties to Resource and Planning stream proceedings > > ... > > (3) If an appeal has been instituted by a person, any other person whose interests are affected by the decision which is appealed against may, subject to subclauses (4) and (5), apply in writing to the Tribunal to be made a party to the appeal and the Tribunal may, by order, make the person a party to the appeal. > > (4) The Tribunal may not, under subclause (3), make a person a party to an appeal against a decision - > > (a) in respect of the granting of a permit under section 57 of the Land Use Planning and Approvals Act 1993 unless - > > (i) the person made a representation under section 57(5) of that Act in respect of the application for the permit; or > > (ii) the Tribunal considers that the person has a proper interest in the subject matter of the appeal and that it is not reasonable to expect the person to have made a representation in respect of the application for the permit; or > > (b) in respect of the granting of a permit under section 58 of the Land Use Planning and Approvals Act 1993, unless the Tribunal considers that the person has a proper interest in the subject matter of the appeal. > > ...

2. Mine Watch did not make a representation to the Council. Its application must therefore be assessed against cl 7(4)(a)(ii) of the TASCAT Act. To be joined, Mine Watch must establish that:

(a) it has an interest affected by the Council's decisions: cl 7(3);

(b) it has a proper interest in the subject matter of each appeal: cl 7(4)(a)(ii); and

(c) it was not reasonable to expect Mine Watch to have made a representation to the Council: cl 7(4)(a)(ii).

1. The background and relevant facts are as follows:

• ABx's permit application was first exhibited on or about 1 June 2024. The period for representations closed on 18 June 2024.
  • On 12 September 2024, Mine Watch, albeit under a different name, was incorporated under the Associations Incorporation Act 1964. I have been provided with extracts from the Association's objects, set out under points 1.1.1 and 1.1.2 of Mine Watch's application to join:

To provide a community organisation in Tasmania that actively advocates for the protection, conservation and restoration of residents' and landowners' amenity in relation to the impacts of extractive industries and associated activities, including mining, fracking, drilling, as well as exploration for oil, gas and minerals. Also to halt and reverse the decline in amenity caused by mining activity. > > To enhance the abilities of residents, landowners and groups and their avenues of complaint, objection and appeal regarding proposals, applications and the impacts of extractive industries and associated activities. To lodge objections and run the appeals where deemed necessary regarding proposals, expansions, intensifications, permit applications, planning applications, developments, redevelopments and rehabilitations in order to achieve adequate and desirable ecologically sustainable public interest outcomes.

• Mine Watch existed as an unincorporated association before then. I accept Mine Watch's evidence given in the form of submissions as to pre-incorporation activities relevant to the proposal. Those activities related to the proposed quarry.
• On 13 May 2025 the Council determined the development application and resolved to grant a permit subject to conditions.
• Each appeal was filed on 3 June, with a preliminary conference held on 17 June.
• Each application to join was filed on 10 July.
• The matter is listed for a mediation later this morning. It is therefore important for me to determine the application to join prior to that.
• Mine Watch's president is Mr Wasserfall. He is the appellant in the second appeal.
• Several of Mine Watch's members lodged representations with the Council in respect of the development application. However, Mr Wasserfall is the only such representor who is a party to either appeal.

Does Mine Watch have an interest affected and a proper interest?

1. The test was set out by the former Resource Management and Planning Appeal Tribunal (RMPAT) in Action View Tas Pty Ltd and ors v Clarence City Council [2020] TASRMPAT 20 (Action View). When considering the predecessor to cl 7(3) and (4)(a)(ii), RMPAT said at [12] [citations omitted]:

The Tribunal has considered the meaning of interests affected in s14(2) and proper interest in s14(3)(a)(ii) in a number of decisions. Principles that may be distilled from those decisions include the following:

(a) By requiring the existence of a proper interest in the subject matter of the appeal s14(3)(a)(ii) limits the class of persons granted a right of appeal rather than enlarging it;

(b) A proper interest is something that goes beyond mere general interest in the subject matter and is akin to a special interest as discussed in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Limited [1981] 149 CLR 272. Something more than a mere general interest in the subject matter or a belief that a particular law should be observed is required for a proper interest to be found;

(c) What constitutes a proper interest is determined by the nature and subject matter of the appeal and the interest of the applicant to be joined must be one which may be affected by that subject matter such that they ought be afforded a right to be heard;

(d) The interest must be one which could be affected by the permit being acted upon or the permit not being able to be acted upon;

(e) Consideration of whether a person's interests are affected is not limited to the issues raised by the grounds of appeal, but extends to the matters relating to the decision being appealed against and the outcomes which are open on an appeal;

(f) 'Affected' in s14(2) is not limited to adversely affected and a person may have a proper interest in preserving the status quo or achieving a positive effect on its interests.

This list is not intended to be exhaustive.

1. Mine Watch referred me to several Victorian appellate decisions, which I have considered. These include VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195, which was considered by Full Court of the Supreme Court of Tasmania in Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1. They are relevant as to the principles. However, each case must turn on its own facts.
2. An intellectual or emotional concern is insufficient: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 at 7 (Gibbs CJ). In addition, members' interests are not, by the fact itself, transposed to be a body corporate's interests: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 at 531 (Aickin, Gibbs, Stephen, Mason, and Murphy JJ).
3. Here, Mine Watch's objects of incorporation are directly relevant, as are the activities of its members pre-incorporation. To that extent, Mine Watch's interest is more than "general".
4. I reject the EPA's contention that Mine Watch's objects are too broad in that they are directed to natural conservation of Meander Valley generally, not to this particular site or to Reedy Marsh. Such an approach is, in my respectful view, overly narrow.
5. Finally, it is relevant, but decisive, that the EPA alone - not the Council or ABx - contends that Mine Watch does not have an interest affected and a proper interest.
6. Applying all these matters, I find that the first two limbs are satisfied. That is, Mine Watch does have a proper interest and an interest affected by the proposal.

Is it unreasonable to expect Mine Watch to have made a representation?

1. It is this third limb which is the most contentious. Mine Watch says, and I accept, that it did not exist during the representation period. It follows, Mine Watch says, that it was not possible to make a representation and that "it is not reasonable to expect Mine Watch to have made a representation".
2. Several cases of this Tribunal and RMPAT have considered this limb. Several of those cases were referred to me. Again, each case must turn on own facts.
3. However, it is appropriate to give particular consideration to Action View as it was the focus of the parties' submissions. The facts of Action View must be distinguished. In that case, the Crown was the owner of and responsible for the land; a highway. It was in substance the moving party or proponent or developer in a non-legal sense. It did not make a representation.
4. The Crown's position in Action View is different to Mine Watch's based on its involvement in the proposal. I reject Mine Watch's contention that the only relevant difference is that the party was the Crown rather than a private entity. Rather, the point of distinction is the respective party's involvement in the proposal. Mine Watch has no proprietary interest in the land. Notwithstanding that Action View must be distinguished, its principles remain relevant and I follow them.
5. Mine Watch's pre-incorporation activities are relevant, albeit not as relevant as post-incorporation activities. In Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824, Niall JA (as his Honour then was) said at [52]-[54] [citations omitted]:

[52] The fact that a corporation, including an incorporated association, has a separate and distinct legal identity from its members is an important and related part of the context in which to assess the entity's standing with respect to particular litigation. It serves to emphasise that it is the relative position of the plaintiff, as a separate juristic entity, that is critical. However, it does not follow, as the defendant would have it, that the activities and interests of the members, including those that occurred pre-incorporation are necessarily irrelevant. > > [53] The activities of individual members of an organisation post-incorporation, at least when conducted as a member, may be attributed to the organisation in a variety of contexts. If the member is acting as an agent of the entity or with its authority, the entity may be liable under the principles of agency or in accordance with usual rules of attribution where a body corporate acts through individuals. But the present issue is not the ascertainment of legal responsibility for the conduct of members. Rather, it is necessary to ascertain the nature of the relationship between the entity and the subject matter and there is no reason why the conduct of its members is irrelevant. > > [54] The issue is more nuanced in the case of pre-incorporation conduct. I am not persuaded that such conduct is always irrelevant. For example, the Act provides for the incorporation of a pre-existing unincorporated association. Before incorporation, such an association has no separate legal existence that is independent from its members. However, as a group of individuals the association may have a collective identity and have engaged in conduct as a collective for the purpose of common endeavour. In doing so, the group of individuals may have a connection with a particular subject matter and have engaged in activities and conduct to express their collective concern or involvement. I see no reason why that conduct must be ignored when assessing standing of the incorporated entity.

6. Mine Watch contends that, as an unincorporated association, it "effectively lodged a submission through many of its members. Given that it had no separate legal identity, a further submission would have been duplicative".
7. The Council and the EPA contend that this limb of the test is not satisfied. The Council submits that:

[F]ailure to exist is not a relevant incapacity; neither the authorities nor the legislation contemplate an applicant to join that did not, as a matter of fact and law, exist at the time when representations could be made.

8. The Council further submits that "the text requires the existence of a person or other legal entity ... existing at the relevant time". I reject that submission.
9. First, the test is not incapacity, although the Council was responding to a submission by Mine Watch that used that phrase. Rather, the test is whether it is "not reasonable to expect the person to have made a representation in respect to the application". The wording suggests that an assessment must be made after the fact rather than prospectively. This interpretation is consistent with ordinary principles of statutory interpretation, as set out by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14].
10. Second, the categories of reasons why it was or was not reasonable to expect a person to have made a representation are not closed. Each matter will turn on its own facts. As the Council properly submits, this matter appears to be unique at least in Tasmania in terms of the proposed party joined not existing during the representation period.
11. On the other hand, there is some force in Council's submission that, on Mine Watch's own submission, a failure to exist would result in an automatic satisfaction of the third limb.
12. The provision's context and purpose compel an interpretation that a person whether natural or otherwise that did not exist at the time may, in appropriate case, satisfy the third limb. An example might be a body corporate incorporated after the representation period closed who subsequently purchases a neighbouring property. The body corporate could not make a representation but would, later, have an interest in the subject of the appeal.
13. In drawing those comparisons and interpreting the test, it is important not to conflate that third limb with the first and second limbs. It is also important to avoid circular reasoning.
14. The EPA refers to EMPCA's broad definition of 'person' in support of a contention that Mine Watch could have submitted as representation even when unincorporated. However, LUPAA has no such broad definition of 'person'. Plainly, Mine Watch's members could, and some did, make a representation. I doubt that Mine Watch could have made a representation given that it was not incorporated and therefore not a 'person' for the purposes of LUPAA.
15. For these reasons I find that it is not reasonable to expect Mine Watch to have made a representation in respect to the application for a permit. However, it does not follow that that test will automatically be satisfied simply by virtue of the person (whether natural or otherwise) not existing during the representation period. Each application must be considered on its merits.

1. There is a residual discretion whether to join a party even if each of the three criteria are satisfied: Bellerive Yacht Club Inc v Clarence City Council [2024] TASCAT 191 at [19]- [22]. Although the categories are not closed, other relevant considerations may include the need to balance efficiency with having all the relevant matters before the Tribunal. The existence of parties with similar interests, together with the complexity or otherwise of the matter and the possible contribution that a party may make, would be relevant.
2. Here, the residual or discretionary matters broadly but not overwhelmingly militate against joinder.
3. Mine Watch says that it could offer a broader holistic view to the appeals. I consider that submission to be relatively weak. First Mr Wasserfall is its president and therefore, I infer, influential in Mine Watch. He is already a party to the proceedings. Second, several of Mine Watch's other members made representations and therefore, as the Council submits, retain a right to apply to be joined. However, these discretionary matters are of relatively little significance in the circumstances of this case and do not outweigh other factors.

1. Although the matter is finely balanced, I am persuaded that the criteria in cl 7(3) and (4) are satisfied. Taking into account the discretionary or residual matters, I am satisfied that I should grant each application.
2. Given the relationship between Mine Watch and Mr Wasserfall, and that they share common legal representation, it may be appropriate at the hearing to impose some limits on the presentation of evidence, particularly examination and cross-examination of witnesses, and potentially the making of submissions. That would also be the case if other members of Mine Watch who did make a representation apply to join the appeals. However, those limits are a matter that ought to be dealt with either at the commencement of the hearing or at any directions hearing including on application by any party.

1. For these reasons I order the following:
   1. Mine Watch be joined to each appeal.

[There followed a discussion about consequential orders.]