Administrative Law - Judicial review - Grounds of review - Error of law - Questions of fact - Looseness of language.

Forest Practices Act 1985 (Tas), s8(2)(f), s27(5).

Judicial Review Act 2000 (Tas), s17(2)(f).

Land Use Planning and Approvals Act 1993 (Tas), s20(7).

Aust Dig Administrative Law [1030]

& Private Forests Tasmania Director of Public Prosecutions

E E & I C Porter Ritchie & Parker Alfred Green & Co

Judgment Number: [2007] TASSC 64

1 This is an application pursuant to the Judicial Review Act 2000. It concerns some land at Reedy Marsh, near Deloraine, that is owned by two people named Porter. An application was made to the Forest Practices Authority for the land in question to be declared as a private timber reserve pursuant to the Forest Practices Act 1985, s5. That authority decided to recommend the granting of the application. The applicant, a number of other individuals, and the Meander Valley Council were aggrieved by that decision. They appealed to the Forest Practices Tribunal pursuant to the Forest Practices Act, s9(2). The Tribunal conducted a lengthy and complex hearing. On 13 October 2006 it dismissed the appeals, affirmed the determination of the Forest Practices Authority, and published lengthy reasons for its decision. The applicant contends that the Tribunal erred in law in a number of respects, and has applied for the review of its decision on that basis.

2 The Tribunal, as the respondent to this application, filed a notice in the usual form submitting to any order that the Court or a judge may make, and was not represented at the hearing. However, various persons and corporations appeared by counsel at the hearing and opposed the application, namely the Forest Practices Authority; Private Forests Tasmania (a corporation established by the Private Forests Act 1994, s4); Gunns Ltd (a company which had made a contract to purchase timber harvested from the land); and Mrs E E Porter and Mr I C Porter (the owners of the land).

3 The grounds of the application were extensively amended during the hearing. At the end of the hearing, the only grounds that had not been abandoned were grounds 1(d), 2(a) and (b), and 7(a) to (e).

The legislative scheme

4 The Forest Practices Act provides, in s11(1), for the Governor, on the recommendation of the Forest Practices Authority, by notice published in the Gazette, to declare land as a private timber reserve. Under s12(1), land that has been declared as a private timber reserve may be used only for establishing forests, growing or harvesting timber in accordance with the Forest Practices Code (to which I shall refer), or such other activities as the Forest Practices Authority considers to be compatible with establishing forests, or growing or harvesting timber. Under the Land Use Planning and Approvals Act 1993, s20(7), the provisions of a planning scheme do not affect forestry operations on land declared to be a private timber reserve. As a result, the only controls on forestry on such land are controls pursuant to forestry legislation.

5 Under the Forest Practices Act, s5, an application for land to be declared as a private timber reserve has to be made to the Forest Practices Authority. Under s7, an objection to such an application can be lodged with that authority by a "prescribed person". That term is defined in s7(4). By virtue of par(d) of that definition, "a person who is the owner of land that adjoins, or is within 100 metres of, the boundary of the proposed private timber reserve" is a "prescribed person". By virtue of ss7(1)(a) and 8(2)(f), the only ground upon which a person owning adjoining land, or land within 100 metres of the boundary of a private timber reserve, may object is that he or she "would be directly and materially disadvantaged if the application was granted".

6 The applicant owns land adjoining the private timber reserve to which these proceedings relate. Accordingly he was entitled to object to the application for the land to be declared as a private timber reserve, but only on the basis that he would be directly and materially disadvantaged if the application was granted, ie if the Porters' land was declared to be a private timber reserve.

Ground 1(d)

7 This ground reads as follows:

"1 The decision of the Tribunal involved an error in law in that the Tribunal, pursuant to s17(2)(f) of the Judicial Review Act 2000, directed itself that:

d) in determining whether the proposed PTR [private timber reserve] would produce a direct and material disadvantage to the applicant, it must approach the issue by comparing the likely impacts and issues arising from the proposed PTR declaration with the impacts and issues arising from 'forestry without a PTR'".

8 At par33 of its reasons, the Tribunal made a finding of fact that, whether the land is a private timber reserve or not, "the likelihood is that the land will be subject to forestry, largely practiced [sic] as it presently is under the Forest Practices System". That finding was open to the Tribunal, and is unable to be challenged in these proceedings. At pars44 - 62 of its reasons, the Tribunal undertook an analysis of the likely differences between forestry on the subject land with and without it being declared a private timber reserve.

9 The Tribunal was required to consider whether the applicant would be directly and materially disadvantaged as a result of the land being declared as a private timber reserve. Once it had found as a fact that the land was likely to be used for forestry with or without such a declaration, I think it was obliged to undertake an evaluation of the likely effects that such a declaration would have if the land was to be used for forestry purposes in any case. That is what it did. It did not err in law by undertaking that evaluation.

Ground 2

10 In its final form, this ground read as follows:

"2 The decision of the Tribunal involved an error of law in that the Tribunal, pursuant to s17(2)(f) of the Judicial Review Act 2000, found that:

a) that none of the contentions raised by the applicants relating to, amongst other things, visual impact, 1080 poison impacts, shooting impacts, chemical and aerial spraying impacts, water quality, noise, traffic and road safety impacts, smoke inhalation, weed infestation, could alone constitute a direct and material disadvantage to the applicant;

b) failed to consider whether the cumulative impacts of the contentions could cause direct and material disadvantage to the applicant".

11 The Tribunal considered each of the issues listed in par(a) of ground 2. In considering whether the applicant and other appellants would be directly and materially disadvantaged, the Tribunal addressed the issues of visual impact (at pars77 - 83 of its reasons), 1080 poisoning (pars90 - 94), shooting (pars95 and 96), chemical and aerial spraying (pars97 - 103), water quality (pars104 - 106), noise (pars108 - 111), traffic and road safety impacts (pars112 - 117), fire and smoke (pars118 - 124), and weeds (pars125 - 132). The Tribunal considered each of those issues individually, and reached conclusions to the effect that each of those matters could not alone result in the individuals in question being directly and materially disadvantaged. Those conclusions have not been challenged on the hearing of the present application. However, taking ground 2 as a whole, the applicant contends that the Tribunal should have considered the impact of a declaration of a private timber reserve in all those respects in the aggregate, that it did not do so, and that it erred in law by not doing so.

12 After considering all the issues that I have referred to, and a number of others, the Tribunal said the following under the heading "General amenity":

"208 It was contended by the appellants, and they gave evidence, that primary aspects of their enjoyment of the Reedy Marsh area, were appreciation and enjoyment of naturalness, wildlife, natural visual qualities, and an absence of factors, such as noise, adversely affecting rural residential amenity.

209 The Tribunal considers that the appellants have established all of those matters, and accepts that they are matters of great significance for the appellants. The specific factors upon which those matters of general amenity depend, are those considered above relating to direct and material disadvantage as those individual topics together comprise all aspects of amenity which were relied upon.

210 The crucial question which arises with respect to general amenity is the same as for those specific matters; the differential effect of a PTR; and the answer is necessarily the same."

13 I think that in those paragraphs the Tribunal considered the aggregate impact that the declaration of a private timber reserve would have in relation to all the issues that it had addressed, including the issues listed in par(a) of ground 2. Ground 2 must therefore fail.

14 Furthermore, I think that a finding as to whether an individual would be directly and materially disadvantaged is a question of fact, and that ground 2 asserts only that the Tribunal used defective reasoning in making a finding of fact. In my view that could not amount to an error of law. See St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15 at pars46 - 54.

Ground 7(a)

15 Paragraph 23 of the Tribunal's reasons begins with the following sentence:

"Pursuant to section 27 of the Act, forestry operators and relevantly here, Gunns Ltd annually submits [sic] three year plans to the FPA [Forest Practices Authority] with a summary to the local authority, identifying where future forestry operations are planned; planned volumes for harvesting; proposed transport routes; and re-afforestation measures proposed."

16 Ground 7(a) asserts that, in that sentence, the Tribunal incorrectly found that the summary provided to the local authority "identified where future forestry was planned and where re-afforestation measures were proposed", and thereby erred in law.

17 Under the Forest Practices Act, s27(1), forestry operators responsible for the harvesting of more than 100,000 tonnes of timber per annum in Tasmania are required to lodge annual three-year plans with the Forest Practices Authority. The contents of such plans are prescribed by s27(2). A summary of each such plan is required by s27(5) to be provided to each local authority, ie each council, exercising jurisdiction over any land through which it is proposed to transport the timber. The requirements as to the contents of a plan and a summary under subs(2) and (5) respectively are different. The two subsections read as follows:

"27 (2) A three-year plan is to contain information with respect to -

(a) the location or locations of the land from which timber is intended to be harvested; and

(b) the approximate volumes of timber intended to be harvested from each location; and

(c) the routes by which it is proposed to transport the timber harvested out of each location; and

(d) the reafforestation measures that are proposed for the location or locations from which timber is intended to be harvested -

in each of the 3 years specified in the plan."

"(5) Where a three-year plan is lodged with the Authority the person referred to in subsection (1) shall cause a summary of the plan, which shall include details of-

(a) estimated tonnages of timber intended to be harvested and transported under the plan;

(b) the routes by which it is proposed to transport the timber out of each location; and

(c) such other matters as may be prescribed-

to be sent to each local authority exercising jurisdiction over any land through which it is proposed to transport the timber."

18 On carefully comparing these two subsections, it will be noted that there is no requirement for a council to be notified of the locations where timber is to be harvested, nor of proposed reafforestation measures. A council has to be notified only of the roads intended to be used to transport the timber, and of estimated tonnages. No further matters have been prescribed under s27(5)(c).

19 The Tribunal received as an exhibit a proof of evidence from a Mr Colson, who worked for Gunns Ltd as a planning manager. His proof contained evidence as to the practice of that company concerning the provision of three-year plans and summaries thereof to the Forest Practices Authority and councils. He said that each council receives a copy of the three-year plan. That evidence was unchallenged and uncontradicted. It was therefore open to the Tribunal to find, as a fact, that Gunns Ltd annually provided three-year plans to each local authority identifying where future forestry operations were planned, and proposed reafforestation measures.

20 It appears that, in the first sentence of par23 of its reasons, the Tribunal was seeking to provide a succinct summary of the relevant provisions of s27, as well as accepting the evidence of Mr Colson as to three-year plans. The sentence is so worded as to suggest that the provision of information to the council as to where future forestry operations are planned and as to proposed reafforestation measures is required by s27, when s27 in fact requires no such information to be included in the summaries provided to councils. It was submitted on behalf of the applicant that the Tribunal made an error of law as to this tiny point.

21 In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, which concerned an appeal from the Administrative Appeals Tribunal, the Full Court of the Federal Court considered the limits within which that court should exercise its jurisdiction in relation to appeals from that tribunal. The applicable legislation permitted an appeal only on a question of law. At 287, the court (Neaves, French and Cooper JJ) said:

"The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts ... The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".

22 I am not persuaded that the Tribunal made any error as to the extent of the statutory obligations to provide information to a local authority in a summary of a three-year plan. The wording of the sentence in question suggests nothing worse than looseness of language, or "unhappy phrasing of the Tribunal's thoughts". It follows that ground 7(a) must fail.

Ground 7(b)

23 The second sentence of par23 of the Tribunal's reasons reads as follows:

"Gunns Ltd meets with Councils at formal three year planning meetings, where Councils have input into the plans prior to their submissions to the FPA."

24 Ground 7(b) asserts that the Tribunal erred in law in that:

"(b) at par 23 of the reasons it incorrectly found that pursuant to s 27 of the Act Gunns Ltd meets with councils at formal 3 yearly planning meetings where councils have input into the plans prior to their submission to the FPA".

25 Mr Colson said in his proof of evidence that Gunns Ltd met with councils at formal three-year planning meetings where councils can have input into three-year plans, and amendments can be made, prior to those plans being submitted to the Forest Practices Authority. That evidence was unchallenged and uncontradicted. It was open to the Tribunal to accept it, and that is what the Tribunal did in the second sentence of par23. It did not suggest that the meetings in question were held pursuant to s27 as ground 7(b) asserts. The finding referred to in ground 7(b) did not involve any error of law.

Ground 7(c)

26 Paragraph 24 of the Tribunal's reasons reads as follows:

"There is also a requirement for the operator under an FPP [forest practices plan] to formally notify Council of proposed activity under an FPP. The object is to allow effective communication and consultation with Council. Those matters include areas with landscape protection provisions in planning schemes; operations potentially affecting water quality in listed town water supply catchments: operations within 2 km upstream of a town water supply intake; action [sic] of new access or major upgrading of existing access in the harvesting onto local government roads; Council may at those times make requirements with respect to, for example, cartage routes and roads."

27 Ground 7(c) asserts that, in this paragraph, the Tribunal erred in law in that "it incorrectly found that there were requirements as therein listed for the operator under a [sic] FPP to formally notify council of activity under a [sic] FPP".

28 There does not appear to be any provision in any statute or regulation expressly or directly requiring a forestry operator to notify a council of proposed activity under a forest practices plan. Such plans are provided for in the Forest Practices Act, ss17 and 18. I think that in par24 of its reasons the Tribunal must have been referring to one or more provisions in the Forest Practices Code 2000, to which counsel for Gunns Ltd referred me. The Forest Practices Act, s30, makes provision for the Forest Practices Authority to issue a code to be called the Forest Practices Code. Under s31(1), that code is required to "prescribe the manner in which forest practices shall be conducted so as to provide reasonable protection to the environment." By virtue of s18(3), any specifications in a forest practices plan pursuant to s18(2) are required to be in accordance with the Forest Practices Code as in force at the time when that plan is prepared. Such specifications include, for example, "specifications of the forest practices to be carried out on the land referred to in the plan in connection with the harvesting of timber": s18(2)(a).

29 On page 5 of the Forest Practices Code 2000, in a series of dot points under the heading "Basic Approach", the following appears:

"● Consultation with local government will occur prior to certification of Forest Practices Plans involving:

- areas with landscape protection provisions in planning schemes;

- operations which potentially affect water quality in a listed town water supply catchment (see Appendix 2);

- operations within 2 km upstream of a town water supply intake;

- construction of new access or major upgrading of existing access for timber harvesting onto local government roads.

• Notification with respect to planned forest practices will be provided to local government and to landholders within 100m of the boundary of the planned practices. The objective is to encourage effective communication and consultation with respect to proposed forest operations. The details in relation to the practices should be provided at least 30 days prior to the commencement of the operations."

30 On page 6, in a section entitled "B1. Planning and Locating Roads", the following appears:

"● Local government will be consulted where construction of new or substantial upgrading of existing access onto municipal roads is required."

31 On page 66, in a section headed "D4. Landscape", the following appears:

"● Local government will be consulted regarding areas with landscape protection provisions in planning schemes, and due regard given to the provisions."

32 Under the Forest Practices Act, s21(1)(a), where a forest practices plan has been certified by the Forest Practices Authority in respect of forest practices on any land, and is in force under that Act, a person commits an offence if he or she, in carrying out any act, or in omitting to carry out any act, contravenes or fails to comply with the provisions of that plan. Thus, if a forest practices plan accords with the Forest Practices Code as required by s18(3), a failure to consult a council in accordance with the provisions of the Code that I have quoted above can amount to an offence.

33 In my view most of par24 of the Tribunal's reasons constitutes a reasonably accurate summary of the purpose and practical effect of the provisions of the Forest Practices Code that relate to consultations with councils.

34 The position in relation to "cartage routes and roads" is a little more complicated. The consultation requirements of the Forest Practices Code should ordinarily result in councils having opportunities to make requests as to such matters as cartage routes and roads, but do not purport to give councils the right to "make requirements" as to such matters. However, councils have a power under the Local Government (Highways) Act 1982, s14(1), to close particular roads to particular types of traffic. That subsection reads as follows:

"14 (1) If, in the opinion of the corporation, a local highway or part of a local highway should be diverted or closed for the public benefit, in the interests of public safety or because of lack of use, it may -

(a) if it is satisfied, in the case of a diversion of a highway, that standard requirements, if applicable, have been complied with; and

(b) not less than 28 days after a written notice of its intention to do so -

(i) has been served on each of the owners and occupiers affected;

(iii) has been displayed in a prominent position at each end of the highway; and

(iv) has been published twice in separate issues of a local newspaper circulating in the municipality in which the highway is situated -

close or divert the highway in respect of all traffic or particular types of traffic or subject to the reservation of a footpath or some other highway that may be used only for limited purposes."

35 Under that section, it would be open to a council, acting for the public benefit or in the interests of public safety, to close a particular road to log trucks. By exercising that power at a stage when a forestry operator consulted it in accordance with the requirements of the Forest Practices Code, a council could, in a sense, make requirements with respect to cartage routes and roads. I think it must follow that the last sentence of par24 of the Tribunal's reasons is not based on any error of law.

36 I therefore conclude that par24 does not reveal any error of law, and that ground 7(c) must fail.

Ground 7(d)

37 This ground concerns the impact of the Land Use Planning and Approvals Act, s20(7), whereby the provisions of a planning scheme do not affect forestry operations on land declared to be a private timber reserve. In pars42 and 43 of its reasons, the Tribunal said the following:

"42 S20(7) of the Land Use Planning and Approvals Act 1993 above has the effect that in every case where a PTR [private timber reserve] is declared, the planning system will no longer apply. It is therefore inevitable that in every such case both the public and the neighbours will lose the opportunity for input through the planning system. It was contended on behalf of the appellants that this was contrary to the public interest, and in the case of the individual appellants constituted direct and material disadvantage.

43 If that result was contrary to the public interest then in every such case the declaration of the PTR would by definition, be contrary to the public interest and/or constitute a disadvantage to the neighbours. The consequence would be that every PTR would be in conflict with those criteria in section 8, and no PTR could ever be declared. Such a construction would defeat the obvious purpose of the system set up by the Forest Practices Act, which is that if appropriate, a PTR may be declared; and that the tests of appropriateness are stated in section 8. The Tribunal will accordingly determine the appeal upon the basis that a PTR is not, by definition alone, against the public interest. The factors which may or may not make it against the public interest have to be analysed in each case."

38 Ground 7(d) asserts that the Tribunal erred in law:

"(d) at par 43 of the reasons by failing to ask the correct question required by s 8(2)(f) of the FPA as to the consequences for an owner (as therein confined) but rather determining that its perceived assessment of parliamentary intent meant that no declaration of the PTR could be refused (on the complaint of an individual owner as confined by the definition of 'prescribed person') on the basis of the loss of town planning input from council resulting from the grant of a PTR".

39 When s20(7) does not apply, individuals have opportunities for input into planning decisions by councils and other authorities at a number of different stages and levels. They may make representations in relation to proposed planning schemes or amendments to planning schemes. They may make representations in relation to applications for planning permits. They may appeal to the Resource Management and Planning Appeal Tribunal, or take part in appeals to that tribunal instituted by others. They may lobby councillors as to matters coming before councils. But it must be remembered that the only ground upon which a person in the applicant's position may object to the declaration of land as a private timber reserve is that he or she "would be directly and materially disadvantaged if the application was granted": Forest Practices Act, s8(2)(f). Perhaps it can be said that the loss of the opportunity for input into the planning system will ordinarily result in disadvantage to some degree. That factor, together with others, might sometimes justify a finding that an individual would be directly and materially disadvantaged by the granting of an application for a private timber reserve. Perhaps there may even be situations in which that factor alone would justify such a conclusion. But it has been argued on behalf of the applicant that such a loss of opportunity always inevitably results in a landowner being directly and materially disadvantaged within the meaning of s8(2)(f). I reject that submission. That would be an absurd result, and one that Parliament cannot possibly have intended. If that were the position, it would be possible to defeat every application for land to be declared a private timber reserve, unless no planning scheme applied to that land, or there was no privately owned land adjacent to it or within 100 metres of it. The suggested interpretation does not promote the purpose or object of the Forest Practices Act. A different interpretation should therefore be preferred: Acts Interpretation Act 1931, s8A. I think this ground must fail.

Ground 7(e)

40 This ground asserts that the Tribunal erred in law in that:

"(e) at pars 51, 55, 61, 131 & 196 of the reasons to the extent those paragraphs conclude that council was unlikely to impose significant town planning conditions (i) as that finding was dependent upon the errors identified in (a) - (d) above [sic]; (ii) that finding is wholly inconsistent with or contradictory of the finding in par 55 that council's attitude to the present appeal has varied markedly and its determination in favour of the council on its complaints on general amenity grounds at pars 209 and 217 of the reasons."

41 To make some sense of this ground, it is first necessary to review what the Tribunal said at pars51, 55, 61, 131 and 196 of its reasons as to what the relevant council - the Meander Valley Council - was likely or unlikely to do.

42 At pars47 - 62 of its reasons, the Tribunal considered whether the declaration of a private timber reserve would result in a greater likelihood of forestry on the subject land, and whether forestry on the land would be more extensive, or have greater adverse outcomes, than would otherwise have been the case. In addressing those issues, the Tribunal said the following at pars50, 51, 55 and 61:

"50 The need for an FPP for each proposed instance of forestry, exists at present, and will continue to exist with a PTR. The additional control of development approval, as previously noted, cannot result in a refusal under the present provisions of the planning scheme, but can result in conditions. Those conditions cannot be so severe as to substantially change the extent of forestry proposed in any given FPP. As noted below, Council's approach to date, as exemplified by the provisions of its planning scheme and strategies, and the nature of conditions it has imposed on forestry development applications to date, and the matters to which it has agreed in the tripartite agreement, do not provide a basis for envisaging any significant interference by planning conditions upon forestry upon this land.

51 There is no, doubt that the absence of the requirement to go through the development application and approval process, will make it easier for the applicant to plan and carry out forestry on the land. The removal of the risk of adverse planning conditions is, having regard to the foregoing, a small factor. The removal of the risk of changes to the planning scheme which would inhibit or prevent forestry is another factor.

...

55 Given the permitted status of forestry under the planning scheme, any development application for forestry would have to result in a permit, with the only opportunity for control by Council being by the imposition of conditions. The Tribunal finds nothing in the evidence which makes it likely that Council would impose any conditions which would substantially add to what is in the agreement and any FPP; both of which will necessarily apply to any forestry under the proposed PTR. In particular, the evidence was that the Meander Valley Council imposed conditions in the past, upon the approval of a development application the subject of a Forest practices plan. That was FPP-TAM 253, relating to a plantation approximately of 109 ha, part of the present proposed PTR; the relevant development approval, DA 123/00, contained conditions as follows: first, a roadside buffer of 20 m along portions of River Road, and Porters Bridge Road; second, a requirement that approach road junctions directly servicing the harvesting area provide satisfactory sight distance; appropriate road junction signage; and compliance with Council's requirements with respect to road maintenance. These were all matters which would potentially affect any person using the road system in the vicinity, not persons by virtue of the fact that they were prescribed persons because they adjoined the PTR land. That FPP included some 84 ha of plantation. There were no conditions with respect to matters such as hours of harvesting or transport operations, noise, effect on wildlife, the use of 1080, aerial spraying, chemical use or the like. In the present case, Council has already participated in the existing planning scheme, making forestry a permitted use. The limited extent to which Council went in stipulating controls in the tripartite agreement is also indicative of how far it was prepared to go. Further, Council's attitude to conduct of the present appeal has varied markedly, giving no basis for an expectation of or confidence in, a likelihood of Council imposing conditions additional to those which would be imposed by any FPP and also affecting the appellants.

...

61 For the above reasons however, the reasonably likely position in the absence of a PTR is not that there would be no forestry, or even forestry of a greatly different extent or nature than with a PTR. It would just be more difficult because of the necessity to obtain planning approvals, as there would have to be number [sic] of individual development applications for forestry the subject of individual Forest Practices Plans. Council could not refuse to approve those applications, nor modify them so substantially as to constitute substantially different proposals; the likelihood of Council imposing conditions of significant impact would be small; and third parties would have no right of input with respect to such proposals unless joined as a party in the event of an appeal brought by the applicant against a condition."

43 At pars125 - 132 of its reasons, the Tribunal addressed the issues that had been raised before it in relation to weeds. It said the following at par131:

"131 As previously noted, the extent to which there may be additional forestry because of a PTR is not shown to be at any significant level; and the Tribunal is not satisfied that a PTR will make a significant difference to the level of forestry on the land, or the nature of the controls applied to it."

Obviously this paragraph added nothing to what the Tribunal had already said.

44 At pars168 - 207 of its reasons, the Tribunal addressed the issues that had been raised before it in relation to fauna. After dealing with the issues related to the Spotted-tailed Quoll, and before proceeding to deal with the issues relating to Eastern Quoll, the Tribunal revisited the arguments as to the "differential effect" of the declaration of a private timber reserve. In the course of addressing that issue, it said the following at par196:

"196 For the previously considered reasons however, the reasonably likely position in the absence of a PTR is not that there would be no forestry, or even forestry of a greatly different extent or nature than with a PTR. It would just be more difficult because of the necessity to obtain planning approvals, as there would have to be number [sic] of individual development applications for forestry the subject of individual Forest Practices Plans. Council could not refuse to approve those applications, nor modify them so substantially as to constitute substantially different proposals; the likelihood of Council imposing conditions of significant impact would be small; and third parties would have no right of input unless joined as a party in the event of an appeal brought by the applicant against a condition."

This is another paragraph that added nothing significant to what the Tribunal had already said.

45 Ground 7(e)(i) asserts that the Tribunal erred in law in the paragraphs that I have quoted in that its findings in those paragraphs were dependent on the "errors" identified in ground 7(a) - (d). Since I have concluded that no errors were identified in ground 7(a) - (d), this part of ground 7(e) must fail.

46 I turn to ground 7(e)(ii). It asserts that there is an inconsistency between, on the one hand, what the Tribunal said about the Meander Valley Council being unlikely to impose significant planning conditions if the subject land was not declared as a private timber reserve (particularly in pars51, 55 and 61), and, on the other hand, (a) a comment in par55 that the council's attitude to the appeal before the Tribunal had "varied markedly"; and (b) the Tribunal's conclusions at pars209 and 217.

47 I have set out par209 in full when dealing with ground 2. Nothing said by the Tribunal in that paragraph is inconsistent with what it said in other paragraphs as to what the Meander Valley Council was likely to do. I think the same can be said of the comment in the last sentence of par55 that the council's attitude had "varied markedly". I think the same can also be said of par217, which reads as follows:

"217 As put by the Council, the appellants in this case contend that the application for PTR 1698 faces them with a substantial alien alteration to the character of their home landscape. They assert that harm to their social relationships, ecological patterns, and visual and travel amenity is already taking place in their community, from operations virtually identical but on a far smaller scale, than those proposed for this application. They predict the granting of PTR 1698 will irreparably intensify that harm and entrench it in perpetuity in their rural residential neighbourhood."

48 Ground 7(e)(ii) essentially calls for a comparison between paragraphs in which the Tribunal considered the council's attitude towards restrictions on forestry development and paragraphs in which it considered contentions as to the likely adverse effects of forestry development - a completely different subject. After considering what the Tribunal said in all of the paragraphs referred to in ground 7(e), I do not think that there is any inconsistency or contradiction. Even if there were, I do not think that any inconsistency or contradiction could be characterised as an error of law. All of the paragraphs referred to in ground 7(e) are concerned with fact-finding alone. "There is no error of law in simply making a wrong finding of fact": Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 per Brennan J at 77. Ground 7(e) must fail.

Conclusion

49 No error of law on the part of the Tribunal has been identified. This application must therefore be dismissed. It is important to note that this is not a determination as to the merits of the appeal that was before the Tribunal. All that I have decided is that, in the respects suggested, the Tribunal did not make any errors of law in its reasoning.