ENVIRONMENTALLY RELATED BILLS AND ACTS 1999
Forest Amendment (Miscellaneous) Bill 1998 (No.85) (see March Newsletter)
As of 11 June, 1999, this Bill had gone through the second reading
committee stage in the House of Assembly.
Forestry Rights Registration Amendment Act 1998 (see March Newsletter)
This Act commenced on 7 April, 1999 (Act No.4 of 1999).
Forest Practices Amendment Bill 1999 (No.23)
This Bill was assented by the Governor on 14 May, 1999
The Forest Practices Amendment Act 1999 amends the Forest Practices Act 1985 and certain other Acts. Its main purpose is to improve the transparency and independence of the Forest Practices Board, and to improve the operation of the forest practices system. The Regional Forest Agreement provides that Tasmania must implement mechanisms for improving the transparency and independence of the Forest Practices Board (responsible for the administration of the forest practices system). Concerns regarding the following issues have been raised in recent years: that there is a perceived conflict of interest arising from the representation of the Managing Director of Forestry Tasmania on the Forest Practices Board, and from the legal status of the Board as a division of Forestry Tasmania; and there are potentially anti-competitive provisions regarding the perceived role of Forestry Tasmania as both a commercial enterprise and a regulator.
The Forest Practices Amendment Act 1999 provides the main mechanisms for removing the perceived conflict of interest and potentially anti-competitive provisions in the following ways:
Legally separating the Board from Forestry Tasmania, thus making the Board an independent statutory body. The legal separation of the Board from Forestry Tasmania is considered to be an improvement and something that both the Tasmanian Conservation Trust and North lobbied to achieve.
Excluding the position of the Managing Director of Forestry Tasmania from membership of the Board.
Making a number of consequential changes to ensure that Forestry Tasmania is fully bound by the provisions of the Act, such as removing exemptions from prosecution and ensuring that all the provisions of the Act apply to Forestry Tasmania.
The other main provisions of the Act include:
Adding two new members to the Board, one with expertise in the harvesting and processing of timber, and the other, a representative of local government. As far as Board representation is concerned, the Act does not appear to have imposed significant changes. For example, the Board membership is still devoid of outside expertise such as an independent conservation expert, or a member of the public.
Changing the composition of the Forest Practices Advisory Council to improve expertise and representation of persons in the Resource Management and Planning System, administration of private forests, administration of public multiple use forests, forest harvesting and processing and forest conservation.
Timber Harvesting Plans are replaced with Forest Practices Plans to ensure that all forest practices involving roading, quarries, harvesting and reforestation are covered by plans. These plans must be certified by the Forest Practices Board with respect to their compliance with the Forest Practices Act and Code, and the provisions of the plan at the conclusion of operations. This amendment does tidy things up but it fails to address a significant issue: what happens to the land when the logging is finished and the Forest Practices Plan ends? The Act could have expanded the Forest Practices Plans to include managing the use of the area for perpetuity and it is regrettable that it failed to do so.
An extension of the Board's powers to inspect operations and impose penalties. A requirement in three year plans to include details of reforestation. A requirement that the Board monitor and report on commitments given in the Regional Forest Agreement regarding the maintenance of a permanent forest estate. The responsibility for the State of the Forests Report now lies with the Forest Practices Board under the Forest Practices Act (instead of Forestry Tasmania under the Forestry Act). These reports are required to be prepared every five years, and the first of these was produced 5-6 years ago. It will be difficult for the Forest Practices Board to do the State of the Forests Reports because a lot of information is held by Forestry Tasmania, Parks and Wildlife Services and Private Forests Tasmania (for private land). The Act states that the Board has to produce the report in collaboration with other agencies. According to a representative from the Forest Practices Board, the Government will determine the collaboration and it is to happen by consultation and agreement with respect to the relevant information needed for the reports.
The purpose of the original Forest Practices Act 1985 was to establish an independent planning and approval process that was distinct from the State's planning system. The Act essentially set up a self-regulation industry and there appears to be nothing in the amendment that contradicts this. The Forest Practices Act entrenches self-regulation, despite the existence of a sophisticated planning system, the Resource Management and Planning System, that allows for community participation. This has been criticised widely.
Historic Cultural Heritage Amendment Bill 1999 (No.22)
As of 11 June, 1999, this Bill had gone through the first reading committee
stage in the Legislative Council.
The Historic Cultural Heritage Amendment Bill 1999 amends the Historic Cultural Heritage Act (HCHA) 1995. The HCHA contains provisions that are not smoothly integrated with the application, approval and appeal process contained in the Land Use Planning and Appeals Act (LUPAA), as was intended. Indeed, there are many inconsistencies between the two Acts and this Bill aims to remove these inconsistencies. The most significant problems with the HCHA, and the provisions of the Bill which act to rectify the problems are shown below.
Problems with the HCHA Amendments in the new Bill:
Under LUPAA, local government authorities (LGAs) can recover from the applicant the costs of advertising and giving notice. This is not provided for under the HCHA. An amendment to s.34 allows local authorities to recover such costs. The HCHA requires LGAs to notify owners within 7 days of a heritage decision being made. This means that if the LGA is not in a position to issue a planning permit when it receives the Heritage Council decision, the owner is sent two separate notices. Amendments to s.37 and 40 remove the 7 day requirement and allow LGAs to issue one combined notice. There is no time limit in the HCHA for LGAs to forward to the Heritage Council submissions received in response to an application. An amendment to s.38 requires LGAs to forward submissions to the Heritage Council within 3 days of receipt. LUPAA allows 14 days for an appeal to be lodged and the HCHA provides for 40 days. S.43 of the HCHA is amended to allow for a 14 day period for an appeal to be lodged. LUPAA only allows appeal rights to the applicant or those who made a submission. The HCHA allows appeal rights to anyone. S.43 of the HCHA is amended so that appeal rights are only allowed to the applicant or those who made the submission. There is an anomaly in s.32(5) of the HCHA which implies that where a property satisfies more than one criterion for entry in the Heritage Register (most meet two or more), works which might significantly destroy the heritage qualities of the place may be carried out without the approval of the Heritage Council S.32(5) is repealed to rectify this anomaly.
The HCHA Bill was drafted principally to bring the legislation in line with LUPAA as far as advertising, and time limits are concerned. It appears as though the amendment Bill has done this adequately.
State Policies and Projects Amendment (No.2) Bill 1999
As of the 11 June, 1999, this Bill had proceeded through both Houses
of Parliament but had not been proclaimed.
written by Rachelle Padgett, an EDO Volunteer
Meetings with Politicians
We circularised all State and Federal Politicians and were visited by Senators Brian Gibson and Duncan Kerr. We thank them for their interest in the work of the EDO. I attended a reception held by the Women Lawyer Association and met the Attorney General, the Hon. Peter Patmore, MHA.
Management Committee
Grant Kench, was the Law Society's Representative, and he proved an invaluable asset to our work. We congratulate him on his recent appointment as Crown Solicitor and should like to thank him for the generous contribution he made to the EDO over the last 18 months, and wish him well in his new role.
Thank you
To Duncan Kerr for his generous and ongoing support of the EDO.
To Colleen and Daryl Dibley for their generous donations to our library.
The Ombudsman
In May I presented a paper about the EDO and Government Investigations at a workshop on Investigation Skills run by the State Ombudsman's Office. We appreciate their interest in our work. The Ombudsman's Office is also referring clients to us.
Genetic Engineering
The release of genetically modified organisms into the environment via, eg. potatoes and orcanola, has wide ranging implications for other farmers and consumers as it has been demonstrated that cross pollination occurs with the genetically modified crop and can thereby alter the crop of eg. organic potatoes. I attended an excellent seminar organised by the Tasmanian Environment Centre with guest speakers Bob Phelps from the Gene Ethics Network and Professor Chalmers of the Tasmanian University Law School and we are collecting information and have already been involved in submissions concerning this issue.
World Environment Day
Attended a Reception at Government House for Environment Groups and Environmental Managers. Most of the latter went to the $ 65 a head dinner at the Grand Chancellor Hotel sponsored by Norths to hear Robin Williams and Rod Quantoc's addresses and attend a presentation of Environmental Awards to industry. The EDO just does not have the money (and nor do I) to pay for such a dinner and it is unfortunate that Community Environmental Organisations are thereby excluded.
Environment Institute of Australia Conference
This National Conference is coming up in December in Hobart and is concerned with the implementation of sustainability in Australia. Key note speakers include Professor Jamie Kirkpatrick and Richard Flanagan and the EDO will also present a paper. We are concerned that again, the conference is expensive and may well be beyond the budget of many small community environmental organisations and students and unemployed people who have a positive contribution to make. Contact Muirs Convention Management for further details.
National Environmental Law Association
Workshop Monday August 9 at the Hobart Vista Hotel including lessons from Oceanport, State Policies and the workings of the Resource Planning and Development Commission and the Resource, Management and Planning Appeals Tribunal. The EDO will present a paper on "State Policies - and Outsiders View". For further information contact: EDO.
Guide to Environmental Law
The Guide is currently at the printers and will be launched at a venue and date to be advised. Should you wish to place an order please telephone the EDO 62232770 or email us: edotas@peg.apc.org. Watch this space.
TAFE Coastcare Students
Phil Watson invited me to speak to the students at the excellent Coastcare course which he runs at the Hobart TAFE. Thank you again Phil for the opportunity to speak about environmental law and protecting coastal values.
Submissions
Kate Webb wrote our third submission to the government concerning the forthcoming Water Management Legislation; Dianne Gee wrote our submission on Subdivision Legislation Review and Jacinda Forster wrote a submission on the National Environment Protection Measure for Contaminated Sites. All submissions are now on our website.
Centre for Environmental Studies
Brian Risby and I presented a seminar to undergraduate students about the Resource Management and Planning System; I followed it up with a seminar to post graduate students. Thank you Elaine Stratford for your interest. We also worked with Jim Russell and Elaine on a joint project with Honours students looking at exemptions of Parks and Wildlife Service from the Resource Management and Planning System.
Volunteers
Thank you to John Scanlan who has continued loading information onto the website, fixing our computer problems, putting together the newsletter, assisting with administration and research at the office. We also thank Kate Webb, who generously has assisted us for the last two years prior to moving into full time employment. We will miss her and thank her for her contribution to the EDO.
Current volunteers are: Jacinda Forster, Olivia Hill, Jonathon Nermutt. Georgi Marshall (from the Centre for Environmental Studies) helped us out for several months and volunteers who have returned from last year are Tim Walter, Gina Goodman, Rachelle Pagent.
Cases
Quoiba Progress Association v. Devonport City Council and North West Rendering. The EDO represented this group at a hearing concerning an application granted by the Council for the construction of a boiler shed to house a proposed boiler. Resents concerned at current level of environmental pollution and the environmental implications of such an approval. We were partially successful in that Council had given approval for not only a shed to house the boiler but also to store fuel etc. and the tribunal restricted the works to just having a storage shed for the boiler, pending any environmental approvals.
Pollution:
Smoke from tip fires. This case referred by the Ombudsman's Office.
Council's must get approval from the Environment Department prior to burning
off at rubbish tips and are subject to the nuisance provisions of the Environmental
Management and Pollution Control Act.
A group of rural residents is still concerned that their Council wishes to divest itself of the responsibility for looking after their water supply and hand it over to the community. Council's have a responsibility to provide potable drinking water to the ratepayers under the Waterworks Clauses Act and the provisions of the Public Health Act (which have incorporated National Health and Medical Research Guidelines) also support this. Councils as a Statutory Authority also have the responsibility for enforcing the law and if a water supply is polluted by eg. agricultural run off, septic sewerage or other contamination, Council may under section 200 of the Local Government Act take action to stop the nuisance.
Local residents would have to take action under civil enforcement proceedings of the Environmental Management and Pollution Control Act to abate the nuisance. We see this as a dereliction of duty by the Council in a move which would concern all residents and rate payers in rural areas.
Residents in another town are being showered with dust and soot from a local factory which is also extremely and excessively noisy. Council has issued an Environment Protection Notice which the factory has appealed and we have advised the residents as to how they can become parties to the appeal and how they can take civil enforcement proceedings themselves in the absence of adequate provisions in the Environment Protection Notice.
Dust from fertiliser depot - other residents are affected by this and we are assisting them.
Dust pollution from Forestry trucks using dirt road.
Chemical spray drift from vineyard.
Smells from diesel exhausts in bus depot.
Dumped cars in bush are the responsibility of the owner, or the insurance company which becomes the owner when the insurance claim is settled.
Noise from child care centre.
Electricity substation.
Smells from fish factory.
Noise from motor body works.
Water - ground water pollution from sewerage run off, stock access to river, dairy effluent contaminating water supply.
Contaminated site - lead pollution from service station.
Forestry:
Road - Forestry Tasmania is quite within their rights to develop roads
to assist them with logging operations in State Forests; however,
they are subject to planning schemes and other legislation outside these
areas. It is our view that Forestry Tasmania had no authority to
clear trees and other vegetation next to a dirt road running through the
centre of Mr. Bowerman's property on the Tasman Peninsular. Given
that this was for a 10 day road closure, the works included removal of
trees 150 feet high pushing vegetation into a creek without the permission
of Council (who maintain the road) or the landowner. Forestry Tasmania
so far have replaced the survey pegs removed in the clearing operations,
but are denying that they lacked any authority to do the other works.
We have referred this matter to the State Ombudsman.
We have now been approached by two groups of farmers who are concerned that their community and surrounding land is being swallowed up by Forestry Plantations, resulting in a loss of community infrastructure, possible pollution from chemical sprays, invasion of their properties by wildlife and rabbits living in the plantations and loss of dogs through 1080 poisoning. We note a recent case in the Victorian Ministry of Appeals Tribunal which found that Forestry Plantations were not in the public interest in several areas of rural Victoria and restrictive permits or no permits were given.
Water supply and pine plantation.
1080 use - Organic Farming - private nuisance complaints - Forest Practices Board - section 4 G of the Forest Practices Act provides that the Forest Practices Board must investigate and lay complaints.
Water contamination - Riparian rights.
Use of Chemicals in burning off.
Quarry: is best practice environmental management reflected in the Quarry Code of Practice? This Code of Practice is not enforceable under the Mineral Resources Development Act! And this has ramifications for rehabilitation of quarries.
Public Interest Litigants and Costs - advice provided to lawyers representing clients.
Threatened Species: Launceston Environment Centre and North East Forests Action Group contacted us concerned about logging operations in coupe CC158D which contain threatened species including the North East Forest Snail and Simson's Stag beetle. Section 51 of the Threatened Species Protection Act provides that it is an offence to take a threatened species without a permit. "Take" includes to kill or destroy and we advised the group that if it was likely that the habitat of these species would be destroyed during the logging, this would amount to taking and a permit would be required. The North East Forests Action Group had paid $ 50 to Forestry Tasmania's Scotsdale office when they applied to view the Timber Harvesting Plan and were provided with three pages which did not detail how threatened species would be protected. Subsequent inquiries revealed that Forestry Tasmania does not have a permit for taking threatened species. The EDO wrote to Parks and Wildlife Service (responsible for enforcing the Threatened Species Act), the Forest Practices Board (responsible for enforcing the Forest Practices Act and Code). We received responses assuring us that all proper provisions had been followed and there were no breaches of any legislation. We find that hard to believe given eg. a 40 metre wide road running through a 100 metre wide habitat strip and that no permits have been issued. Three months later the logging has finished and we are still trying to obtain information under the Freedom of Information Act from Parks and Wildlife and Forestry Tasmania and are appealing decisions not to release relevant information to us to the Ombudsman. The conservation groups could have elected to take out a writ in the Supreme Court against Forestry and Parks right when the logging began. They were reluctant, given the legal costs involved and the threat of considerable legal costs were they not successful.
Compare this with contrast conservation groups eg. Turners Beach Coastcare who were able to seek urgent orders in the Resource Management and Planning Appeal Tribunal that a local Council be prevented from continuing to remove coastal vegetation in breach of a planning scheme. The matter was speedily brought on and resolved and both the Council and the community have been able to move on. The comparatively legally impenetrable system of legislation for threatened species and wildlife protection plus forestry operations should be of concern to all in the community who wish to see are public servants really acting in the public interest in a democracy and being open and accountable for their decisions and actions.
The Threatened Species Act claims to be part of the Resource Management and Planning System but is unenforceable by third parties and is really similar to the Forest Practices Act which quite happily remains outside the system. It is high time that both pieces of legislation were brought inside the Resource Management and Planning System with provisions for third party enforcement in the Resource Management and Planning Appeal Tribunal. No community should be satisfied with fatuous 'trust me' platitudes from bureaucrats, they must be able to see the documents relied upon, openly and freely and to test out the competency and commitment of those who are entrusted to protect our threatened species.
Wildlife protection - penguins at Lilicoe Beach.
Fisheries - quotas.
Tribunal Procedures.
Environmental Planning - a coastal Council gave the ok to a horse riding club to drain a swamp for use as arenas. Application to do these works should have been advertised for public consultation and proper environmental assessment. This was not done and the works which included removing some important remnant vegetation, digging a large round drain and diverting it through a bank into a creek has resulted in siltation in the creek in addition to the arena continuing to be boggy. The residents can seek orders in the Resource Management and Planning Appeal Tribunal that the drains be filled in, the area be fenced off and allowed to revegetate and the drainage access to the creek be restored. The horse riding group received money from the Department of Sport and Recreation to conduct these works, described by Council's engineer as "quite a substantial undertaking" and further community resources will be diverted into mediating the damage.
"Car park for buses" (see Mrs. Lind's story).
Minor Amendments under s. 56 (2) of Land Use Planning Approvals Act - silos.
Marine Farming - exemption of marine farms from planning schemes -see article this issue.
Coastal Vegetation - removal:
removal large trees on coastal reserve; enforcement of Crown
Lease to protect Coastal Vegetation.
Water Quality - private nuisance may be a useful way to enforce water quality standards for organic farmers facing pollution from forestry operations.
National Environmental Law Association - book on implementation of Treaties in Australia - Tasmania - we have finished our contribution and the book should soon be available.
Possible exemption of onshore Marine Farming Structures and Equipment from the provisions of the Land Use Planning and Approvals Act 1993 (LUPAA)
Apparently, in the Solicitor-General's opinion, onshore activities relating to marine farms are exempt from the provisions of LUPAA. We do not agree with this interpretation.
Section 7 of LUPAA provides that a Council may exercise its powers under
this Act in respect of:
"(b) any part of the seashore to the low water mark adjoining and (c)
all bridges, jetties, wharves, boathouses and other structures partly within
its municipal district and partly in or over the sea adjacent to its municipal
district in, on, over or under which any use or development is related
to, or affects the use of any adjacent land".
Section 20 (7) states that
"nothing in any planning scheme… affects "(c) fishing, marine farming…or
any other activity conducted in accordance with the Living Marine Resources
Management Act 1995 (LMRMA) or the Marine Farming Planning Act 1995 (MFPA)
or any licensed permit or lease issued under those Acts."
LUPAA is, with LMRMA and MFPA, part of the Resource Management & Planning System, centering on common Objectives in all Acts (copy enclosed). It is meant to be an integrated system that includes provision for "the fair, orderly and sustainable use and development of air, land and water" and for public participation. These Acts must be read and interpreted as a whole.
The MFPA applies to marine farms in state waters (defined in s.5 of LMRMA as "any land which is swept by those waters to the highest landward extent"), and also any area adjoining State waters, may by order be made subject to a Marine Farm Plan, but this must be agreed by parties including the Minister responsible for LUPAA. (ss6,19 MFPA). There is no specific provision in MFPA that says that it applies to shore-based activities, and thus overrides the provisions of LUPAA. Section 20(7) of LUPAA would therefore appear to exempt from planning schemes those activities in water and up to high water mark
The purpose of the Act includes to "minimise any adverse impact of marine farming activities" (s.4(1)(c)), and "A person must perform any function or exercise any power under this Act in a manner which furthers the objectives of resource management." The Objectives set out in Schedule 1 of the Act (above) include "to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry." In our view, the Act deals with activities related to marine farming on water, not on land above high tide mark.
Section 20 of MFPA provides for amendments to planning schemes for land adjoining State waters to "reduce the negative or likely negative impact of activities or future development on the land, marine farming, or other activities in State waters" (s.20(3)). The location of marine farming operations under the Act is in State waters.
Marine farming does not exist in isolation from other activities such as Council Planning Schemes. Under the MFPA the provisions for draft marine farming plans include that they must "further the objectives of resource management within the area covered by the draft plan;...have regard to the use and development of the region as an entity in environmental, economic, recreational and social terms;....ensure a co-ordinated approach with respect to any matter affecting adjacent land under the jurisdiction of ... a council;" (s.21(1)). Council planning schemes therefore must apply
"Marine farming" under MFPA "includes the farming, culturing, ranching,
enhancement and breeding of fish or marine life". The definition of "marine
farming equipment" "means any of the following whether actively engaged
with fish rearing or not:-
any equipment or structure used in connection with marine farming or
the operation of a marine farm;
fish cages, lines and racks;
moorings, staylines, anchors, predator control devices;
any other equipment;" (s.3)
This refers to water-based equipment.
Marine farming, ie, "farming, culturing, ranching, enhancement and breeding of fish or marine life" could take place in large tanks in buildings on the land. The Act does not appear to make specific provision for this, and in our opinion, does not specifically exempt any proposed building from being subject to a development application and subsequent public consultation, nor is the Council's power to regulate land use by its planning scheme zoning affected. The Acts must be read as a whole, and the provisions construed accordingly.
If there is inconsistency between an earlier and later Act, two principles apply to work out how to construe them both: If the maintenance of the earlier Act would defeat the purpose of the later, the earlier must give way. If inconvenience or inconvenience would result from the continuing operation of the two Acts, the later must prevail. It is our opinion that these Acts overlap between low and high tide level but that LUPAA and therefore Council's Planning Scheme is intended by both Acts to regulate what is happening on the land which is clearly above high tide mark.
Generally, it seems ridiculous that planning schemes would not regulate activities above the high tide mark.
This story shows how invaluable our community is in maintaining environmental standards and ensuring that Planning Schemes are observed.
A bus depot was operating illegally next to a property owned by Mrs. Helen Lind of New Norfolk. She asked questions and complained about the thick and polluting diesel exhaust from the idling buses. Eventually the depot was moved to a more appropriate location. Mrs. Lind then, to her dismay, found that the bus depot wished to relocate to a block adjacent to her. The land was zoned residential/commercial and bus depots were a prohibited use. The bus depot then made a further application for a car park for buses. Mrs. Lind and several other residents objected, concerned with environmental health issues such as noise and air pollution from the buses idling while warming up in the mornings and while being moved around on site. The buses have diesel engines which are usually run for some time to allow them to warm up before being driven. Mrs. Lind and the other objectors were concerned about low vibrating exhaust sound and a build up of diesel fumes particularly on still mornings.
The Derwent Valley Council decided to issue a permit despite these objections and, apparently despite the Planning Scheme, and its responsibilities under section 48 of the Land Use Planning and Approvals Act to 'observe and enforce a current planning scheme'.
Mrs. Lind, a lady in her sixties, appealed the decision in the Tribunal who referred her to us. The Council and the bus service sensibly decided not to contest the appeal. Mrs. Lind has been successful and has prevented ongoing air and noise pollution problems which would have created a nuisance in a residential area. Congratulations!
Note that under the Environment Protection (Atmospheric Pollution) Regulations buses manufactured after July 1978 must be fitted with a vertical exhaust pipe to enable the bus exhausts be emitted at a height not less than 3 metres from the ground. The exhaust must be discharged upwards. If buses weighing more than 4.5 tonnes are not fitted with the appropriate exhausts and if they are emitting clouds of smoke they will be in breach of the regulations. You should contact the Transport Department about this.
VEGETATION CLEARING IN THE PORT SORELL AREA
Written by Tim Walter, Legal Volunteer
The Port Sorell Conservation Area on Tasmania's North West coast is
comprised of 70 ha of foreshore, tidal mudflats, and woodland which is
home to a number of vulnerable, rare and endangered fauna and flora species.
The Conservation Area has been a wildlife sanctuary since 1945, and was
expanded in 1998, after a campaign by local residents. However, a small
minority of residents with adjoining property to the foreshore have
treated the crown land as if their own by clearing the foreshore either
to enhance their waterfront views and/or to gain or enhance foot or vehicular
access
(with boats) to the beach.
Protection of the foreshore vegetation is critical not only for the biodversity of fauna and flora within the foreshore environ, but also prevents erosion of the sandy soils into other areas as well as affording protection from salty sea winds. In particular, the narrow coastal strip linking Squeaking Point and Panatana Rivulet provides important shelter, feeding and nesting opportunities for wildlife and represents an important remnant of the original vegetation in the area. In addition to the skinks, ringtail possums and echidnas, a variety of woodland and sea birds use this coastal strip. Arguably this coastal strip provides an important wildlife corridor for terrestrial fauna between Squeaking Point and the Panatana Rivulet, with the Asbestos Range National Park lying to the east of the estuary. Vegetation clearing within this strip was brought to the attention of the EDO by the Rubicon Coast and LandCare (Inc) community group, who sought legal advice in regards to preventing, prosecuting and ensuring that offenders undertook rehabilitation of areas where vegetation has beenremoved.
Our advice was that: clearing of the land was pellucidly in contradiction of planning laws. For although the Latrobe Planning scheme (which recognised the coastal strip as a 'coastal reserve') allows for passive recreational use in the area - as an area classed as 'open space' - it clearly does not allow for vegetative clearing which requires a permit under s.51 of Land Use Planning & Approvals Act 1993 (LUPA). In addition the Latrobe Planning Scheme had a number of relevant objectives which were also being breached by vegetative clearing. For example, "to promote the sustainable use or development of natural and physical resources and the maintenance of ecological processes and genetic diversity". Furthermore, it appears clearing on their own land adjacent to the foreshore - as an area classed as 'rural residential' - was contrary to the planning scheme which aimed at "retaining existing mature vegetation". Also it appears the clearing was in breach of some of the clauses of the State Coastal Policy which forms a part of the planning scheme. All of which was relevant if the Latrobe Council had allowed or agreed to the clearing of vegetation, or knowing of it did not halt it. For if this had occurred, the Latrobe Council would have been in breach of s.48 of LUPA which requires the Council to "observe, and enforce the observance of" the Latrobe planning scheme.
In addition, it was equally clear from the Crown Lands Act per s.46
that removing any vegetation within the Conservation Area was an act in
breach of this section in the absence of receiving lawful authority. Similarly,
Regulation 5G of the National Parks and Reserve Regulations 1971 states
that "a person shall not in any reserved land (a) take up a growing or
standing plant…(c) interfere with , dig up, cut up, collect, or remove
any sand, gravel, clay, rock, mineral, or any timber, firewood, humus or
other
natural substance". Thus the Parks and Wildlife Service also would
have a legal obligation to initiate investigation, stop and prosecute such
clearing through Ranger staff who are the enforcement arm of the 'Parks
and Wildlife Service' upon learning of any vegetative clearing within the
Conservation Area. Unfortunately, the limitation period for prosecution
is only 6 months (compared to 12 months under LUPA). Finally it was evident
that some property owners in clearing vegetation within the boundaries
of their property had potentially breached their own property covenants.
Thus it there exists a potentially wide ambit of the law for interested third parties to prevent vegetative clearing in Conservation Areas: planning law, property law and conservation statute. It is of note that the former two will be applicable to prevent or stop vegetative clearing in coastal reserves, and some residential areas, depending on the nature and content of the local planning scheme in the absence of such areas enjoying Conservation Area status.
Armed with the EDO's advice, Rubicon Coast and LandCare (Inc) group
was successful in ensuring that conflict with the Council did not ensue,
and meetings with the Parks and Wildlife Service proved productive with
a number of other relevant issues being addressed. For example: dumping
garden waste and rubbish, and setting fires within the Conservation Area.
The Parks and Wildlife Service has responded with assisting in and
educational campaign including a letter drop informing residents of the
rights and obligations in relation to the Conservation Area. Upon discussions
with the Latrobe Council, the Mayor also sent a letter informing residents
that clearing of foreshore reserves and public land was illegal. The Parks
and Wildlife Service also assigned the position of "Authorised Person"
to a member of the Rubicon Coast and LandCare (Inc)
who is also a member of the Port Sorell Conservation Area Committee.
This person is authorised to approach people and request the cessation
of any illegal activity, request their names and address, and call the
police or rangers if necessary. Also, written assurance was received from
the Minister for Primary Industries, Water and Environment that there will
not
be any future delays in Ranger staff taking appropriate action when
offences are brought to their attention. Finally it now seems that the
Parks and Wildlife Service is prepared to approach transgressors about
rehabilitating cleared parts of the Conservation Area.
It is evident from the above experience the key role that community
groups such as Rubicon Coast and LandCare (Inc) play in protecting areas
from residential activities and encroachment, and ensuring that the appropriate
authorities enforce the law accordingly. Whilst patiently trying to engage
the appropriate authority may prove frustrating - especially when time
is
of the essence - it may ultimately prove more effective than an adversarial
approach…at least in some circumstances. What should be weighed up is the
benefit and likelihood of success through adversarial action as opposed
to pushing the boundaries of patience with a view to fostering a more cooperative
relationship with the relevant enforcing authorities and agencies.