Supreme Court of Tasmania|2003-07-22|Before: Slicer J

Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60 (22 July 2003)

CITATION: Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60

Environment and Planning - Environmental planning - Development control - Matters for consideration of consent authority - Consideration of particular planning matters - Economic matters - Whether "direct and material disadvantage" confined to financial loss.

Forest Practices Act 1985 (Tas), ss8 and 8(2)(a).

_Land Use Planning and Approvals Act 199_3 (Tas), s20.

Adelaide Development Co Pty Ltd v Corporation of the City of Adelaide [1991] SASC 3057; (1991) 74 LGRA 15, followed.

Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636, considered.

Environment and Planning - Environmental planning - Development control - Matters for consideration of consent authority - Consideration of objections - Whether grounds of objections limited by statute.

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor [1976] HCA 62; (1976) 135 CLR 616; R v Resource Planning and Development Commission; ex parte Hayward [2000] TASSC 4; O'Sullivan v Farrer (1989) 168 CLR 21, considered.

Judgment Number: [2003] TASSC 60

FOREST PRACTICES TRIBUNAL and PRIVATE FORESTS TASMANIA

1 The applicants seek judicial review of a decision of the Forest Practices Tribunal ("the Tribunal") dismissing their appeals against an earlier decision of the Forest Practices Board ("the Board") which had decided to recommend that certain land owned by Alan Andrews be declared a private timber reserve.

2 The applicants own land, bordering the Mersey River, which is within 100 metres of the land sought to be declared. An owner previous to Mr Andrews had successfully obtained a recommendation for declaration that portion of the land in question be granted private forest status, but had been unsuccessful in relation to the whole (AND1372 and MAC1153); but the exercise proved to be fruitless since a decision of the Meander Valley Council ("the Council") refusing a planning permit was upheld by the Resource Management and Planning Appeal Tribunal ("RMPAT").

3 Mr Andrews, as the new owner, modified the original proposal and obtained planning approval from the Council. He then sought a recommendation from the Board which, despite the applicants' objections, approved the proposal and determined to "recommend to the Governor that the land ... be declared as a private forest reserve". The present applicants caused the application to be referred to the Tribunal following dismissal of their objections and now seek judicial review of the Tribunal's decision. A recommendation is a decision for the purpose of judicial review (Judicial Review Act 2000, s6).

4 Parliament has prescribed for the manner and form of forestry activity through its enactment of the Forest Practices Act 1985 ("the Act"). The legislation establishing the Board granted it wide functions and powers, which relevantly include:

(a) to advise the Minister on forest practices policy in respect of both Crown land and private land;

(e) to oversee standards for forest practices plans;

(f) to oversee the administration of private timber reserves by Private Forests Tasmania;"

A person seeking to use private land for purposes of forestry is required to make application to the Board (the Act, s5) which is obliged to give public notice through advertisement and deliver a copy of that notice to "the local authority exercising jurisdiction over the land and any local authority exercising jurisdiction over any land adjacent to that land" (the Act, s6).

5 The land of the applicants on the northern bank of the Mersey River is within the Municipality of Kentish, whilst that of Mr Andrews is within the Municipality of Meander. Parliament has limited the right to object to the granting of an application to prescribed persons (s7), who are defined in s7(4) as:

"(a) a local authority exercising jurisdiction over the land, or any part of the land, to which the application relates, or over any land adjacent to that land; or

(c) a person who has a legal or equitable interest in the land, or in timber on the land, to which the application relates; or

(d) a person who is the owner of land that adjoins, or is within 100 metres of, the boundary of the proposed private timber reserve;"

The applicants were entitled to object since they owned land which was either adjacent (assuming the Mersey River constitutes a boundary) or was within 100 metres of the boundary of "the proposed private forest reserve". They were not the only persons, to whom s7(4)(d) applied, who gave notice of objection to the Board. The allotments sought to be developed are within a portion of the Meander Municipality zoned as rural/residential. The planning scheme originally prohibited forestry throughout the zone, but had been amended so as to permit discretionary use, as the Tribunal found, "in relation to those two allotments in the zone and no others".

6 The Meander Municipality originally gave notice of objection to the Board, but following negotiations with Mr Andrews and modification to the original proposal, it resolved not to proceed with its objection.

7 The Board notified Mrs Haywood of an intended hearing and there was some dispute before the Tribunal as to whether Mr Haywood had been afforded similar notification. That disputation is irrelevant to this application since, as the Tribunal found:

"13 If the matters complained of in that regard by the Appellants be soundly based, as to which this Tribunal makes no finding, those failings and admissions had no substantially adverse effect for the Applicants because their time for appeal ran only from service of the notice of the decision of Board; and nothing relevant was excluded from consideration by this Tribunal. But if true, those matters gave the Appellants additional reasons to suppose they were not fairly dealt with. At the same time the Tribunal acknowledges that the intensity of feeling, at least as expressed by the Husband towards the Applicant, was such as to make it difficult - but not impossible - for the Board to involve the Appellants in negotiations with the Council and the Applicant."

8 The statutory obligation imposed on the Board to conduct a hearing might (and I express no conclusion) only be breached in a case where an application is refused (the Act, s8(3)), an interpretation favoured by Parliament's requirement that reason for decision must be given only in the event of refusal (the Act, s8(4)).

9 The applicants appealed the decision of the Board to the Tribunal in accordance with the Act, s9(2). The Tribunal is entitled to "join any person as a party to proceedings before the Tribunal" and, in this case, did so with Private Forests Tasmania, a statutory authority established under the Private Forests Act 1994, and allowed Barry Chipman of Timber Communities Australia Ltd to represent Mr Andrews. The powers and obligations of the Tribunal are stated by the Act, s37, in the following terms:

"(9) In the hearing of an appeal before the Tribunal -

(a) the procedure of the Tribunal is, subject to this Part, within the discretion of the Tribunal;

(b) the Tribunal shall observe the rules of natural justice;

(c) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as a proper consideration of the matter before the Tribunal permits;

(d) the Tribunal may admit any relevant evidence notwithstanding that the evidence would not be admissible in a court of law;

(e) the Tribunal may inform itself on any matter as it thinks fit."

10 The applicants claimed at the hearings, both here and before the Tribunal, the right to advance evidence pertaining to requirements stated in the Act, s8(2), which relevantly provides:

(2) An application for a declaration of land as a private timber reserve shall be refused if the Board is satisfied that -

(b) the land is not suitable for declaration as a private timber reserve;

(e) it would not be in the public interest to grant the application; or

(f) an owner of land referred to in paragraph (d) of the definition of 'prescribed person' in section 7(4) would be directly and materially disadvantaged if the application was granted."

whilst their opponents claimed that they were confined by the legislative scheme to advancing only the issue of "direct and material disadvantage". The Tribunal upheld the latter contention determining, at par15, that:

"... there being no other appellants, Mr and Mrs Hayward needed to present evidence relevant to the only ground of appeal open to them, namely, that they 'would be directly and materially disadvantaged if the application was granted'."

"... that, despite the ruling which had been made, it would allow the Appellants an opportunity to present much of the evidence whereby they hoped to establish to the satisfaction of the Tribunal sufficient facts to satisfy the critically important statutory test."

11 The material placed before the Tribunal as a consequence of that decision and the arguments advanced ranged far and wide, which included matters of political manipulation, dangers of "industrial plantation mono-culture forestry", forest practices generally, capacity to properly monitor and control future use and non-enforcement of compliance standards. Relevant to the grounds of this application, the applicants raised issues of:

* loss of or detriment to amenity of their own land;

* problems associated with the cartage of timber and road safety;

* loss of habitat and the detrimental effects of herbicides and pesticides on wildlife; and

* detriment to the area generally by reason of a "domino" effect.

"None of the foregoing concerns, even if established as facts, constitute satisfaction of the statutory test: namely, that the applicants 'would be directly and materially disadvantaged if the application (for a PTR) is granted'."

"Of all the matters raised by the Appellants, the possible exception is if granting the status sought will effect a reduction in the value of their residential allotment."

It accepted that "reduction in value of their residential allotment" constitutes a direct material disadvantage, but determined that the evidence did not justify a conclusion that (par30):

"... the addition of monoculture plantation timber on the undeveloped land having the status of a Private Timber Reserve will 'directly and materially disadvantage the Appellants' by effecting a reduction in the value of their residential allotment over and above any reduction in value which would not already have been effected by the Private Timber Reserves which dominate the relevant areas in Meander and adjoining their own Kentish property and the State Forests to the south of their residential property."

13 The grounds of the application for review may be categorised as:

(i) error by the Tribunal in determining that the applicants were confined in their appeal to the ground of "direct and material disadvantage";

(ii) error by the Tribunal in determining that the term "direct and material disadvantage" was confined to that of diminution of property value and/or failure to pay regard to evidence that the risk of diminution of value was real and cogent;

(iii) error in determining that by reason of the Act, s8(2)(d), the Board lacked jurisdiction;

(iv) abuse of procedural fairness in permitting joinder and representation; and

(v) error through having regard to irrelevant considerations.

14 The grounds as formulated accord with the Judicial Review Act 2000, ss17 and 18.

15 Ground 1(f) and (g) of the application claims that:

"(f) The Tribunal failed to find the Forest Practices Board had no jurisdiction to entertain the application for a Private Timber Reserve over the land in question as the Board was required by the Forest Practices Act, s 8(2)(d) to refuse the application;

(g) The Tribunal in the exercise of its jurisdiction was constrained by the Forest Practices Act, s 8(2)(d), and by the decision of the Resource Management and Planning Appeal Tribunal given on the 21st July, 2000 to refuse a permit to conduct commercial forestry operations involving timber harvesting and plantation establishment, and thereby was obliged to allow the applicants' appeal."

16 RMPAT had dismissed an appeal by the former owner against the refusal of the Council on 21 July 2000 to permit the intended use of the land. The Land Use Planning and Approvals Act 1993 ("LUPAA"), s62, provides that:

"(2) Where the Appeal Tribunal has determined an appeal, an application for a permit in respect of a use or development which is substantially the same as the use or development to which the appeal related may not, without the leave of the Appeal Tribunal, be made within a period of 2 years from the date on which the Appeal Tribunal made its decision."

The contention is that at the time of the making of the application to the Board on 31 August 2001, the statutory period had not elapsed. The requirement is procedural and not absolute since a discretion remains with the Tribunal, irrespective of the absence of planning approval. Further, LUPAA, s20(7)(a) relevantly provides that:

"(7) Nothing in any planning scheme or special planning order affects -

(a) forestry operations conducted on land declared as a private timber reserve under the Forest Practices Act 1985;"

There is temporal discontinuity since any declaration can only be made after recommendation by the Board which would, on one approach, require consideration of LUPAA as part of its Board's process. Parliament intended to make the processes separate by providing in the Act, s8(2A) (Act 48 of 1998) that:

"(2A) For the purposes of subsection 2(d), where a planning scheme or special planning order within the meaning or for the purposes of the Land Use Planning and Approvals Act 1993 requires the owner of any land to obtain a permit or other form of approval from a municipal council in order to establish forests or grow or harvest timber on that land, that requirement is not to be taken as being a prohibition of those activities on that land."

17 The right of an adjoining land owner to advance objection does not extend to recourse to concurrent legislation requiring permit or compliance as a basis for denying jurisdiction on the part of the Board. The Board was not empowered to make a planning declaration and Mr Andrews was not applying for a permit, but seeking a change of status for his land. A procedural bar governing LUPAA and RMPAT, given the import of the Act, s8(2A), did not operate to defeat the jurisdiction of the Board to hear an application giving rise to recommendation. If that approach be wrong, I would, as a discretionary exercise (Judicial Review Act, s38), refuse to uphold the application. To do otherwise would be to require Mr Andrews to either recommence or concede that he ought to have sought the approval of RMPAT before applying to a separate administrative tribunal. The Board made its decision on 12 July 2002, some nine days before the claimed period of prohibition. Further answer may be made to the contention. The decision of the Board was subject to review by the Tribunal which heard the appeal on 8, 9 October 2002, outside the period prohibited. The Tribunal was entitled to substitute its own decision or give directions to the Board (the Act, s37) and to that limited and procedural extent was considering the matter afresh. On that approach the application was within time or, at least, the date of the application did not oust the jurisdiction of the Tribunal.

18 The Tribunal joined as a party Private Forests Tasmania, a statutory authority established under the Private Forests Act 1994, which, by Sch1 has statutory objectives which include:

"(a) to promote the development of private forestry in Tasmania;

(b) to foster competitive markets for private forest growers;

(c) to provide strategic planning and policy direction for private forestry in Tasmania;

(d) to foster progressive and incremental funding from all private forest growers to fund the Authority;

(e) to foster commercial wood production forestry on private land in Tasmania;

(f) to foster the use and values of trees in sustainable land management."

The Tribunal was entitled, on its own motion, to join any person as a party (the Act, s37(6)). The inclusory objectives prescribed by Parliament entitle it to represent these matters in the issues brought to the Tribunal.

19 The Board allowed representation for Mr Andrews by Mr Barry Chipman of Timber Communities Australia Ltd. While parties are not "entitled" to representation by "a barrister or ... legal practitioner" (s37(8)), (cf Anti-Discrimination Act 1998, s61; Anti-Discrimination Commissioner v Acting Ombudsman [2003] TASSC 34), it remains responsible for its own procedures. Similar tribunals (eg, RMPAT) permit representation of lay parties by persons competent within a relevant discipline and there is no reason to doubt the suitability of Mr Chipman to fulfil this criteria. Three grounds for review claim lack of procedural fairness, namely that the Tribunal:

(1) acted on a private and undisclosed communication from Mr Andrews (ground 3(a));

(2) failed to provide the applicants the opportunity to be heard on the joinder of the Board or representation of Mr Andrews (ground 3(b)); and

(3) failed to engage in a circular and on-going "discourse" about the impact of the term "direct and material disadvantage" (ground 3(e)).

The grounds are without merit and ought be dismissed. The "private undisclosed communication" was simply a request to permit representation. The Board was responsible for its own procedures and permitted to allow representation by an appropriate person. Leave was sought by Mr Chipman to represent Mr Andrews at the commencement of the proceedings in the presence of the applicants, neither of whom made any objection. The ground ought never have been advanced. The applicants complain that their case was not determined on merit, yet seek here to prevent another from having his case presented in a competent manner. Private Forests Tasmania had a legitimate interest in the proceedings and joinder was within the province of the Tribunal. It is difficult to see what the applicants could have stated in their representations which would have altered the decisions as to joinder and representation. The grounds are those of ritualistic sophistry.

20 The third basis of the ground claiming "breach of the rules of natural justice" (3f), is formulated as that:

"The Tribunal failed either prior to or in the course of hearing the appeal to make a ruling on the definition of, or otherwise clarify its interpretation of the meaning of, the expression 'direct and material disadvantage'. Thereafter, without providing the applicants an opportunity to answer such finding, or to call alternative evidence on this issue; the Tribunal ruled the evidence of the applicants' witness Naomi Edwards did not persuade it that the addition of monoculture plantation timber on the undeveloped land having the status of a Private Timber Reserve will 'directly and materially disadvantage the Appellants' by effecting a reduction in the value of their residential allotment over and above any reduction in value which would not already have been effected by the Private Timber Reserves which dominate the relevant areas in Meander and adjoining their own Kentish property and the State Forests to the south of their residential property."

answers itself. Central to the Tribunal's consideration of the appeal was the issue of "direct and material disadvantage". Whether the Tribunal was correct in its interpretation of the statutory test is a different issue. When a Tribunal of any nature states its reasons for decision, it can rarely be the case that it must do so in stages and permit re-argument. The issue was clearly stated at the outset of the proceedings and was met, not with discourse, but protest. The ground is misconceived.

21 Even if any of the grounds claiming failure to afford "natural justice" (the Act, s37(9)(b)) had been made out, the provisions of the Judicial Review Act, s38(1)(c), would have permitted dismissal.

22 The applicants contend that once a right of appeal has been established an appellant is entitled to put material to, and have the Tribunal determine, all of the matters stated in the Act, s8(2), which include suitability of the land and public interest (see R v Dixon; ex p Ridler [1993] TASSC 121; (1993) 2 Tas R 42). Whilst not conceding that they are confined to the ground of "direct and material disadvantage" as a basis of objection to the Board, the applicants maintain that once a matter is appealed to the Tribunal, all of the matters relevant to the Board's consideration require consideration by the Tribunal. The Tribunal determined that since they were the only appellants, it was required to consider only matters relevant to the ground of appeal, namely "their disadvantage".

23 The relevant grounds in support of the application are:

"1 The decision of the Tribunal involved an error of law in that the Tribunal:

a) restricted the hearing of the applicants' appeal solely to the question of whether the applicants were directly and materially disadvantaged by the approval of the application for a private timber reserve;

b) confined its consideration solely to the question of whether the applicants were directly and materially disadvantaged by the approval of the application for a private timber reserve;

(b) The Tribunal failed to take into account a relevant consideration, namely that the forestry industry had a general depressive effect on the value of real estate in rural areas affected by forestry, and would have on the applicants' property in particular.

(c) The Tribunal failed to consider an issue for its determination which was before it, namely whether the granting of the PTR application was in the public interest. Specific aspects of the public interest which were raised included:

(i) the impact of industrial forestry on residential amenity in the rural residential area;

(iv) the impact of industrial forestry on scenic amenity;

(v) opposition to the proposal by every householder in the rural residential zone;

(vi) dedication of the land for forestry use would prohibit the land being used for residential purposes, in a municipality where land with such zoning is in very short supply;

(e) The Tribunal failed to take account of relevant considerations, namely factors relating to the proposal before the Tribunal that affected the property value of the applicants' property such as to constitute direct and material disadvantage, in particular:-

(i) the impact of industrial forestry on residential amenity in the rural residential area;"

The grounds go to the differing consequences of "a right of standing" as against "a permitted basis of appeal" and the jurisdiction of the Tribunal as a body of review.

24 The applicants had standing by virtue of the Act, s7(1) and (4) to make objection. It would be impossible for that right not to include the testing of or challenge to the accuracy of material placed before the Board by another prescribed person. But it is clear that Parliament intended to preclude the right of an adjoining land owner to advance as a ground any basis other than that of "disadvantage". Parliament excluded the process of declaring private forestry land from the general legislative schemes governing planning development and resource management. It probably did so in response to a decision of this Court in R v K A M Pitt, G McCutchan, I Swan and ex parte Meander Valley Council, 16 March 1998, by its enactment of Act 48 of 1998 commencing 18 December 1998. It had previously enacted specific legislation (Private Forests Act 1994) and exempted land declared as "a private timber reserve" from the effect of "any planning scheme or special planning orders" in the following year (LUPAA, s20(7)(a), Acts 18 and 104 of 1995). It provided in the Act, s7 (by amendments enacted in Act 48 of 1998) for rights of objection in terms:

"7 - (1) Any prescribed person who wishes to object to the granting of an application for the declaration of any land as a private timber reserve may, at any time before the expiration of the period referred to in the notice relating to the application published in accordance with section 6, lodge with the Board an objection in writing to the granting of the application on -

(a) in the case of a person referred to in paragraph (d) of the definition of 'prescribed person' in subsection (4), the ground specified in paragraph (f) of section 8(2) as it applies to that person; and

(b) in any other case, a ground specified in paragraph (a), (b), (c), (d) or (e) of section 8(2)."

and restricted the right of the Board to entertain the objection unless the notice:

(ab) in the case of an objection by a person referred to in paragraph (d) of the definition of 'prescribed person' in subsection (4), the ground for the objection is limited to the ground specified in paragraph (f) of section 8(2) as it applies to that person; and

(b) in any other case, the ground for the objection is a ground specified in paragraph (a), (b), (c), (d) or (e) of section 8(2)."

25 The Act, s8(2) requires the Board to refuse an application for declaration if it is satisfied that:

"(a) the application has not been made in good faith and honestly;

(b) the land is not suitable for declaration as a private timber reserve;

(c) a person who has a legal or equitable interest in the land, or in timber on the land, would be disadvantaged if the application was granted;

(d) by virtue of the operation of any Act, the owner of the land is prohibited from establishing forests, or growing or harvesting timber, on the land; or

(e) it would not be in the public interest to grant the application; or

(f) an owner of land referred to in paragraph (d) of the definition of 'prescribed person' in section 7(4) would be directly and materially disadvantaged if the application was granted."

Whilst the Board might be affirmatively satisfied of these matters, it is clear that Parliament intended to restrict the right of an adjoining land owner to advance any other basis for refusal. It did not seek to so restrict the right of a local or state authority or a person with "a legal or equitable interest in the land, or ... timber ... to which the application relates". (The Act, s7(4)(c).)

26 The Board is required to give reasons for the dismissal of an application, but not otherwise (the Act, s8(4)). In the event of dismissal, the legislation provides a separate procedure for any appeal following dismissal (s9(4), presumably to protect the public interest) and to allow intervention by other prescribed persons who had previously objected (s9(5)). While the Tribunal may "quash the decision of the Board" or give directions, it remains constrained by the legislative scheme. An interested party, other than an adjoining land owner, is permitted to advance any of the matters stated in s8(2) but the applicants here are confined. They were the only appellants and the original applicant was not required to re-establish all of the matters required by the Act, s5, nor the Tribunal to undertake a procedural process imposed by s6. Nor was the applicant required to re-establish entitlement, as if there were objectors, in accordance with the provisions of s8(2).

27 The legislative scheme differs from that considered by the High Court in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor [1976] HCA 62; (1976) 135 CLR 616, or by this Court in R v Dixon; ex p Ridler (supra) and R v Resource Planning and Development Commission; ex parte Hayward [2000] TASSC 40. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, the High Court considered legislation which permitted objection on "public interest" grounds and the exercise of discretion by a statutory tribunal to grant an application notwithstanding that a particular ground had been made out. In considering a provision which excluded a specific basis for objection, the majority of the Court (Mason CJ, Brennan, Dawson and Gaudron JJ) stated at 216:

"Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is be made.

The public interest considerations which may ground an objection under s45(1)(c) are, in terms, confined to considerations 'other than the grounds specified in paragraphs (a) and (b) and subsections (2) and (3)'. But, these limits aside, the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission, per Dixon J at p 505."

Here the legislation provides a "positive indication".

28 The Act, s37(9)(d) provides that:

"(9) In the hearing of an appeal before the Tribunal -

(d) the Tribunal may admit any relevant evidence notwithstanding that the evidence would not be admissible in a court of law;"

29 The Evidence Act 2001, ss55 and 56, provides:

"55 - (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) Evidence is not taken to be irrelevant only because it relates only to -

56 - (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible."

30 The matter before the Tribunal was the grant of an application notwithstanding the basis of the confined objections of the adjoining land owners. The matter on appeal was that the Board was required to reject the s5 application since it ought to have been satisfied that the objectors were "directly and materially disadvantaged if the application was granted". Whilst not an appeal strictu sensu, the statutory tribunal was entitled to consider the objection "afresh" but only within the parameters of the permitted ground of appeal.

"(f) The Tribunal took into account irrelevant considerations, namely:-

(i) a draft and unapproved forest practices plan in respect to Alan Andrews' land; and

(ii) an unenforceable and ultra vires undertaking from the Forest Practices Board made before the occasion for the exercise of any such discretion to approve a forest practices plan by the Board had arisen, that any forest practices plan approved by the Board in respect of Alan Andrews' land would limit the extent of forestry operations on that land."

33 The ground has no merit and ought be dismissed. The Tribunal was entitled to pay regard to the draft plan and there is no reference to any impact of its reception in the reasons for decision. The Tribunal in its decision referred to assertions that "the Board [was] bound to give effect to its undertakings as given to MVC - something not clearly confirmed" and stated its conclusion at par22(c) that:

"... even if such concerns were established to be reasonably held, that does not give authority to uphold the appeal."

Rather than paying regard to irrelevant considerations, it rejected them.

34 The Tribunal accepted "as a possible exception" that the term "direct and material disadvantage" included, at least "a reduction in the value of their residential allotment", but concluded that the evidence did not warrant a finding in their favour. The relevant findings of the Tribunal were:

"29 The belief of the Appellants is that it will. They hold that belief so firmly that they consider it to be self-evident. They sought to support their belief by producing a letter from two real estate sales-people which related to another property in another area at another time. But they did not call them as witnesses with the consequence that no one, neither other parties nor the Tribunal, could test their evidence. Mrs Hayward sought to explain the absence of any evidence from any qualified real estate valuer by asserting that no licensed valuer would be willing to give evidence against the interests of the forestry industry. That is a proposition which the Tribunal is not willing to accept.

30 Further support for the contention of loss in value was presented by the evidence of a highly qualified actuary whose evidence spoke critically of the economic significance of the forestry industry and who asserted a general depressive effect on the value of real estate in rural areas affected by forestry. As she did not claim any expertise or qualifications in valuing particular real estate, neither her evidence as to that nor any of her other assertions persuades the Tribunal that the addition of monoculture plantation timber on the undeveloped land having the status of a Private Timber Reserve will 'directly and materially disadvantage the Appellants' by effecting a reduction in the value of their residential allotment over and above any reduction in value which would not already have been effected by the Private Timber Reserves which dominate the relevant areas in Meander and adjoining their own Kentish property and the State Forests to the south of their residential property."

The finding was contrary to the evidence and ignored significant material before the Tribunal. The Judicial Review Act, s17, permits review on the ground that:

"(h) that there was no evidence or other material to justify the making of the decision;"

Although expressed in the negative, the ground can be said to include "not open to it on the evidence". In this case, there was no evidence that the declaration would do anything other than reduce the value of the land and thus "no evidence ... justifying the conclusion".

35 The Tribunal had before it material which had previously been prepared for the earlier hearing before RMPAT.

36 The Tribunal considered that "financial detriment" was the sole basis of the applicants' objection. In doing so it rendered the legislation "doubly" restrictive. It addressed the issue of the term "direct and material disadvantage" by reference to the ordinary meaning of the words without stating a compendious definition except by exclusion. Parliament did not state that "disadvantage" was confined to a diminution of property value. Counsel for the parties on the hearing of this application advised that they were unable to find the use of the term in comparable legislation in Australia.

37 The Tribunal was engaged in the assessment of competing interests. It was required to reach a decision by a method of qualitative and quantative balance of different considerations. The word "disadvantage" can be equated with "prejudice", "under a disadvantage", or "inexpedience".

38 While Parliament has excluded the effect of "any planning scheme" on "forestry operations conducted on land declared as a private timber reserve under the Forest Practices Act 1985" (LUPAA, s7(a)) the general principles of "Objections of the Resource Management and Planning System in Tasmania" as stated in Sch1 of that Act provide a guide to the interpretation of the term used in this Act. The land owned by the applicants, albeit in an adjoining municipality (the Act, s6) was nevertheless zoned rural/residential and its status required the Tribunal to consider the question of amenity.

39 Interpretation on the sole basis of "financial detriment to land value" would result in a mandatory requirement for the Board or Tribunal to refuse an application if there was compelling evidence that the value of the property would be diminished, albeit by a moderate amount and would likewise not conform with the legislative purpose.

40 The term "disadvantage" refers to the land and the "human condition" which optimistically is not confined to accumulation or maintenance of wealth. Ownership of land has a financial component but to an owner/occupier it includes amenity. Amenity in land has long been recognised by the law through easements or prescriptive rights of light (Swansborough v Coventry [1832] EngR 820; (1832) 9 Bing 305), lateral support (Hunt v Peake (1860) John 705), peaceable enjoyment (against subsistence, Spoor v Green (1814) Law R 9 Exch 99), water courses ex jure natural (Broadbent v Ramsbothom [1856] EngR 76; (1856) 11 Exch 602; Carlyon v Lovering (1857) 1 H - N 754), fishing (Wickham v Hawker [1840] EngR 285; (1840) 7 M & W 63, Ewart v Graham (1859) 7 H L Ca 331) and protected by the laws of trespass (Star v Rooksby (1711) 1; Salkfeld 335, Case of Thorns (1446) YB 6 ed IV 7, including inconvenience (Waters v Maynard (1924) 24 SR(NSW) 618 and nuisance (see generally, Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536; Hunter v Canary Wharf Ltd [1997] AC 655; Nuisance as a Tort, 4 Com LJ 189). Amenity is recognised in most modern legislation dealing with planning, development and use of land.

41 The term "direct" would attach the disadvantage to the ownership and use of the land, which would include access. It requires a nexus between the land which permits a right of objection and the disadvantage. The term "material" means not insignificant. To give it a meaning of "pertaining to or concerning" would be to render the use of the word "direct" otiose (Barton v Westpac (1983) 50 ALR 397; H 1976 Nominees Pty Ltd v Galli [1979] FCA 74; (1979) 30 ALR 181; De Carmo v Ford Excavations [1984] HCA 17; (1984) 52 ALR 231).

42 The term "directly affected" has been given a number of meanings dependent on the nature of the applicable legislation. It can mean absent the intervention of an intermediate agency (R v Rent Officer Service; ex parte Maldoon and Kelly [1996] 1 WLR 1103 - a case involving the joinder of a party within the meaning of Rules of the Supreme Court (UK), O53). In Adelaide Development Co Pty Ltd v Corporation of the City of Adelaide [1991] SASC 3057; (1991) 74 LGRA 15, (Debelle J), the court was required to give meaning to the legislative use of "a development that will directly affect". His Honour stated, at 29 - 30:

"The expression ' will directly affect' in this context is not a term of art. It means to have an immediate effect upon or to have an immediate influence upon: see the definitions of 'directly' and 'affect' and 'affected' in the Oxford English Dictionary and the Macquarie Dictionary. I am conscious that in attempting to define the expression, I am resorting to synonyms but the subsections are, I think, intended to apply when the proposal will produce an effect upon or have some consequence for an item of State heritage. The expression 'will directly affect' suggests a causal relationship between the proposed development and a heritage item. The effect could be detrimental or beneficial. The word 'directly' requires that the causal effect of the proposed development be direct or immediate: it is intended to exclude that which is indirect or remote. In legislation such as the Heritage Act, the expression 'will directly affect' should receive a more liberal interpretation that it might receive in other contexts. The effect may not, therefore, be limited to physical effects. It is, I think, wide enough to include an effect upon a heritage item such as overshadowing. It is wide enough also to include an effect occurring during the period of the works necessary for construction as well as an effect caused by the completed development. Thus, there may be a direct effect in the case of adjoining sites, where the development may involve an excavation which affects the rights of support of an adjoining heritage building. Whether a proposal will directly affect a heritage item will be a question of fact and degree in every case and each case will have to be considered in the light of its own facts and circumstances. Where it is not clear from the plans whether the proposal will directly affect the heritage item, it would be proper for the Council to make enquiries of the applicant to determine that question.

Where the proposed development is in respect of a building which is an item of State heritage, it is clear the proposal will directly affect the item and the Council is required to proceed in accordance with s24(4) and s24(5). The Council must, therefore, refer such an application to the Minister and must not approve the application unless it receives the concurrence of the City Planning Commission. For the reasons already given, Gawler Chambers was not an item of State heritage at the time of the application and so the Council does not have to comply with subsections (4) and (5) of s24 by reason only of the subsequent entry of Gawler Chambers on the Interim List.

However, the expression 'will directly affect' is not, I think, limited to proposals to develop items of State heritage. If that were so, the draftsman would have expressed subsections (4) and (5) of s24 of the City Act in different terms, for example, by providing that the subsections operate 'where a development of an item of State heritage is proposed'. Thus the Council must also comply with subsections (4) and (5) where, say, a proposed development will directly affect another building which is an item of State heritage.

The fact that a proposed development will directly affect a heritage item is, of course, not a reason for refusing approval; it is no more than a criterion which determines whether the proposal should be referred to the Minister and should require the concurrence of the City Planning Commission before the Council approves the application. It is a means of ensuring that the relevant planning authorities can take appropriate steps, if any are required, to protect heritage items."

43 "Material", in planning legislation, has been held to require some connection with the development which is not "de minimus (Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636). The term "material environmental harm" has been used in Australian legislation (Energy Pipeline Act 1983 (NT), s58B; Mining Management Act 2001 (NT), s4) as has "material harm" (Dangerous Goods Safety Management Act 2001 (Qld), Sch2).

44 There was material relevant to amenity placed before the Tribunal which included:

(1) Material contained in a report prepared by the Town Planner of the Meander Valley Council for use in the earlier hearing and which had been placed before the Tribunal by the applicants relevant to the issue of amenity, and included the following extracts:

"1.4 The site is within the established Weegena Residential Low Density Area comprising Kellys Cage Road, Finlays Road and Dynans Bridge Road. The extent of the zone is shown on the map below. The map also shows the location of houses in the immediate vicinity. There are 13 residential properties within the residential zone and a further 5 in close proximity that border on or gain access through the zone. The subject site is bounded on all sides by residentially zoned land with the exception of the river to the south.

* Noise from machinery during harvesting operations including the use of both chain saws and heavier machinery,

* Use nature and application of chemicals for weed and vermin control, this obviously has more relevance in a residential zone, particularly with residual chemicals for example 1080 and the proximity of domestic animals and pets.

* Use of Fire for burning bark heaps would generally not be acceptable.

* Use of heavy machinery and large vehicle on unsuitable roads.

* Change in the landscape character and nature of the area.

4.12 There is considerable anecdotal evidence that the presence of plantation forestry in an area reduces the areas attractiveness for residential use. Plantation certainly changes the visual character of an area. This may have an effect within the area of deterring adjacent landowners from developing or improving their properties and/or being able to sell their land for its current value. The devaluation of adjoining properties caused by plantation establishment is a considerable concern for residents of the zone.

4.18 In relation to this particular site and its location within the zone it is considered likely that there is considerable scope for negative impacts on adjoining owners and as such it would be inappropriate to conduct more that [sic] a relatively small scale operation. Designating the majority of the site as a PTR would inevitably cause conflict with residential amenity.

(2) * Noise from machinery during harvesting operations including the use of both chain saws and heavier machinery,

* Use of Fire for burning bark heaps would generally not be acceptable.

* Use of heavy machinery and large vehicle on unsuitable roads.

* Change in the landscape character and nature of the area.

(3) Evidence of a councillor of the Meander Valley Council, Mr Kim Booth, who stated in his evidence before the Tribunal:

"... I mean, I believe that it's far broader than just the Haywards who are disadvantaged by the diminution of the value of that whole rural residential area, or RU2 or whatever they call it now, under the Scheme of that area anyway, which was so zoned in order to protect the lifestyle of people such as the Haywards and the other thirty one people who signed the petition there. Given the availability of that land mass in the municipality, you know, taking all of those - the evidence given to the RPDC about roading and so forth, that in fact, it is utterly inappropriate to carry out that scale of forestry and the removal from the planning regime of that - those - that parcel of land, will in fact, materially affect the Haywards and everybody else in the zone. I believe it will lead to a property devaluation."

(4) Evidence of the effect of traffic on the access road of the applicants provided by a report of Mr Terrence Eaton, Project Engineer, Meander Valley Council:

"The road is constructed as a narrow, undulating single lane gravel road with limited approach visibility at vertical and horizontal curves incorporated into the profile. The road could be described as a local access lane limited to general use by light vehicles only."

"Kellys Cage Road is constructed as a low use country lane with a narrow road width, minimum shoulders and low standard roadside drainage provisions. The road is considered at an acceptable standard and condition to serve a low density rural residential area. Upgrading the road to safely cater for logging use will require widening with loss of roadside vegetation and so change the existing visual character. The use of the road by large log cartage vehicles could also be considered intrusive to the amenity of the local residents.

Assessment of Kellys Cage Road as access to forest logging activities suggests:-

1 Safety concerns with the present standard of the road and lack of acceptable entering sight distance at Dynans Bridge Road for heavy vehicles.

2 Operational concerns as the standard of the existing road is not considered adequate for use by log traffic with upgrading required. A guide cost for the upgrading to serve forestry on this land is some $50,000 to $60,000 and with future higher maintenance costs than the present facility.

3 Amenity issues - upgrading to cater for log traffic is likely to substantially change the present rural character of the road. The use by log traffic could also be considered intrusive in the rural residential zoning of the area.

4 Questionable land use principles due to the lack of integration of the required traffic demand to the available road infrastructure."

Council has previously received expert advice with regard to the capacity of Kellys Cage Road to cater for heavy vehicles. This advice from Terry Eaton was accepted by the Appeals Tribunal as correct. In summary this advice suggests:

1 There are safety concerns with both the road and its junction with Dynans Bridge Road.

2 The road is not of sufficient standard for heavy vehicles. A guide cost for upgrading to the necessary standard is $60-70,000.

3 Upgrading of the road to cater for heavy vehicles is likely to substantially change the residential nature and character of the road."

The Tribunal was required to have regard to the questions of amenity, access and non-economic detriment in its assessment of the issue of "direct and material" disadvantage.

45 The Tribunal concluded that it was not satisfied that the applicants would suffer a diminution of property value, except by reason of the effect of forestry operations on the general area which, in any event, had already been affected by other operations. It did not specifically address the question of existing zoning, namely that of rural/residential. No evidence was placed before the Tribunal other than that showing specific effect on the land owned and occupied by the applicants.

46 The applicants relied on the evidence of Ms Naomi Edwards, who is qualified as a Fellow of the Institute of Actuaries of London, Australia and New Zealand. She told the Tribunal that she believed that she was:

... one of about three specialists in Australia on economic appraisals and valuations in the financial services industry.

"... the Institute of Property Appraisers. ... We actually have a recognition of each other's qualifications. The guidelines that say how property should be valued are available to the public on the Internet, and they - those guidelines make very clear that the scenic amenity is one of the drivers of property valuation.

... say you assume a ten per cent reduction, the evidence we have, for example, that Kim tabled, is that logging boundaring of property can actually devalue it by forty per cent. But say we assume it's only ten per cent, because not all the properties value it, it just affects their road and stuff like that, then you're looking at a figure of about a hundred and fifty thousand. So that's probably the biggest, the biggest impact."

"... in my view, the additional granting of this space would have an additional detrimental effect on property value."

47 Her evidence was supported by the appraisal of Mr Des Purton and Mr Dudley Bacon, real estate consultants with Emu Bay Real Estate:

"In our opinion the dwelling and land should realise around $50,000 - $55,000 on todays market, taking into account world class views, historic cottage and magnificent setting.

However with the proposed planting of trees on the northern, eastern and southern boundaries this property will be virtually impossible to sell, and would be unlikely to realise any more than $20,000 in the future."

48 Further reference was made to the issue of land value in the report of the Town Planner, which stated:

"4.12 There is considerable anecdotal evidence that the presence of plantation forestry in an area reduces the areas attractiveness for residential use. Plantation certainly changes the visual character of an area. This may have an effect within the area of deterring adjacent landowners from developing or improving their properties and/or being able to sell their land for its current value. The devaluation of adjoining properties caused by plantation establishment is a considerable concern for residents of the zone.

5.2 Allowing forestry is very likely to compromise the investments of many residents of the zone who have purchased and developed land in the area primarily because of the protection afforded by the zoning from Primary industries."

49 The evidence was cogent and not contradicted. The zoning of the land was rural/residential and the Tribunal was not entitled to disregard the effect of timber operations on the value of the applicant's land.

Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (209 paragraphs)

Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60 (22 July 2003)

Parties

Legislation Cited (2)

Cases Cited (7)