In a proposal that examines what role the public has in decisions about development of Tasmania’s wild places, EDO has successfully represented clients in ta number of proceedings relating to a proposed luxury tourism development at Lake Malbena in the Tasmanian Wilderness World Heritage Area (TWWHA).
Halls Island, Lake Malbena, is within the Walls of Jerusalem National Park – part of the TWWHA and the Tasmanian Wilderness National Heritage place. The area, known for its wild rivers, remoteness, biodiversity, scenic beauty and cultural values, is popular with bushwalkers and anglers.
Wild Drake Pty Ltd proposes to use and develop Halls Island for luxury tourist accommodation, with guests accessing the site by helicopter.
EPBC Act challenge
EDO successfully represented The Wilderness Society (Tasmania) Inc (TWS) in an application to the Federal Court challenging the Federal Government’s decision that the development does not need a detailed assessment and approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)(EPBC Act), the Federal environmental law.
The challenge was brought on three grounds:
- The delegate wrongly relied on the assessment by the Tasmanian Parks and Wildlife Service (PWS) under the Reserve Activity Assessment (RAA) process, which has no statutory force and obligations are voluntarily assumed;
- The delegate should have considered whether s.77A of the EPBC Act applied, that is, having given regard to the mitigation measures proposed by the applicant, whether the delegate would have been satisfied that there was no significant impact if the action were carried out in a “particular manner”;
- Because the PWS had divided the project into two stages, the delegate failed to consider whether the action the subject of the referral was part of a larger action under s.74A of the EPBC Act.
On 12 November 2019, the Federal Court upheld grounds 2 and 3 of the challenge and awarded our client costs. You can read the Court’s full decision here.
Due to the Minister’s delegate’s failure to consider whether the proposal was part of a larger action, on 4 December 2019 the Court ordered that the decision be referred back to the Federal Environment Minister to be determined in accordance with law.
After the Court’s decision, EDO on behalf of TWS, made a detailed submission to Minister outlining why the proposal ought to be rejected, or at the very minimum, be subjected to a detailed environmental impact assessment under the EPBC Act.
In September 2020, the Minister remade the referral decision finding that the Lake Malbena proposal should undergo assessment under the EPBC Act. The Minister found that the proposal had the potential for significant impacts on the wilderness World Heritage and National Heritage values and on threatened species. To read more about the Minister’s decision, click here.
Public comment on the EPBC Act assessment of the proposal is expected shortly.
In February 2019, the Central Highlands Council refused to grant a planning permit for the proposal after intense public interest in which over 1300 people made submissions opposing the development.
Wild Drake Pty Ltd appealed against the refusal to the Resource Management and Planning Appeal Tribunal.
EDO represented TWS, the Tasmanian National Parks Association, and two individuals in this case. Our clients joined the appeal to argue that the Council’s refusal of a permit should be upheld.
After seven days of hearing, including a week of expert evidence on impacts on wilderness values, planning, aviation safety, noise, ecological impacts from the development, and impacts on wedge-tailed eagles from helicopter access, the tribunal made a ruling on 21 October 2019 indicating that it considered that the development could proceed.
In the ruling (which can be accessed here), the tribunal found that it was not required to assess whether the proposal complied with the reserve management plan for the TWWHA – and therefore the evidence was considered not to be relevant. The tribunal found that in order for the proposal to satisfy the planning scheme, the tribunal only needed to be satisfied that a management plan exists and that the PWS has undertaken an RAA.
After hearing from the parties about what conditions should be imposed on the permit, on 18 December 2019, the tribunal issued a permit for the Lake Malbena tourist development in the TWWHA. The tribunal’s final decision can be accessed here.
While the tribunal ultimately issued a permit for the proposed development, our clients were successful on two important legal points:
- The tribunal rejected the Attorney-General’s argument that planning schemes cannot regulate development in national parks and reserved land. This is an important decision, because it means that the law allows for local government assessment of what happens on public land, and therefore public rights of scrutiny, dependant on the controls in a planning scheme.
- The tribunal rejected an argument by the developer that State law cannot regulate impacts on matters of national environmental significance protected by the EPBC Act. If successful, this would have had far-reaching significance for how land clearing controls can consider impacts on MNES, including those matters ordinarily regulated by planning, such as clearing of listed threatened species and communities.
Supreme Court Appeal
In January 2020, EDO acting on behalf of TWS, the Tasmanian National Parks Association and two individuals filed an appeal in the Tasmanian Supreme Court against the decision of the tribunal’s decision to grant a permit for the Lake Malbena project (see Planning Appeal above).
The appeal to the Supreme Court was limited to points of law. Our clients argued that the tribunal made errors of law in:
- Finding that the planning scheme only requires the tribunal to be satisfied that a reserve management plan exists, and the assessment of the proposal against that management plan has been completed by the PWS through its RAA process;
- Alternatively, relying on the RAA decision made by the PWS in this particular case.
On 6 July 2020, the Tasmanian Supreme Court upheld the tribunal’s decision to grant a planning permit to the helicopter-accessed luxury tourist accommodation at Lake Malbena in the heart of the Tasmanian Wilderness World Heritage Area. The court’s decision can be accessed here.
Full Court of Supreme Court Appeal
On 27 July 2020, EDO acting on behalf of TWS, the Tasmanian National Parks Association and two individuals appealed against the Tasmanian Supreme Court decision. The appeal contended that the Court made a number of legal errors in its decision including in relation to the jurisdiction of the tribunal, and the interpretation of the relevant planning scheme provision. The appeal was heard by the Full Court on 2 October 2020.
On 17 September 2021, the Full Court decided to uphold our clients’ appeal and ordered that the matter be returned to the tribunal for a fresh decision. The Full Court’s decision can be accessed here.
In upholding our clients’ appeal, the majority of the Full Court found that the planning scheme requirement that the proposed use be “undertaken in accordance with a reserve management plan” had been misconstrued by both the primary judge and by the tribunal. The Court found that the words “in accordance with” should be read as requiring the use to be “in compliance with” or in “conformance” with the prescriptive requirements of the reserve management plan.
The majority of the Full Court also held that the tribunal and councils were lawfully able to make planning permit decisions relating to land managed by the Tasmanian Parks and Wildlife Service and there was no merit in jurisdictional arguments otherwise.
Providing there is no application for special leave to appeal of the Full Court’s decision, this matter will again go before the tribunal for a further hearing and decision on whether a planning permit should be granted for the proposal.
Why are these cases important?
The Full Court decision has clarified how developments and uses within Tasmanian national parks and reserves are to be assessed under State law in Tasmania.
If no appeal had been made to the Full Court, the tribunal’s October 2019 ruling and December 2019 decision would have meant that planning authorities could not assess whether private development in national parks complies with the applicable reserve management plan. This would have meant that the impacts of the proposal on the reserve’s environmental values, including wilderness values, would generally only be assessed by the PWS under its non-statutory RAA process, with no guaranteed public participation or appeal rights.
The planning and Full Court appeals are significant because the Lake Malbena proposal is one of the projects selected through the Tasmanian government’s Expressions of Interest process for developing national parks and reserves, and one of the first projects to be approved by the PWS under the RAA process. There are many more projects currently being assessed through this process.
The successful outcome of the EPBC Act challenge in the Federal Court is significant because:
- It tells us how the Minister for the Environment should make decisions about whether EPBC Act approval is required. This is critical for properly regulating development in internationally significant protected places such as World Heritage Areas.
- It makes it clear that the Minister for the Environment must consider whether a project is part of a larger action before he or she can make a decision about whether the project should undergo further assessment under the EPBC Act. This makes it harder for developers to divide their proposals into smaller stages in order to avoid detailed scrutiny under EPBC Act assessments processes.
- The Court has made clear that the Federal Minister for Environment cannot rely on the RAA process in making decisions under the EPBC Act because the RAA process is non-statutory and not binding.
- The Court’s decision provided the opportunity for the Minister to reconsider the proposal for Lake Malbena and require that it undergo a more detailed assessment under federal law.
What development is proposed?
The luxury tourism venture proposed by Wild Drake Pty Ltd involves:
- an accommodation complex comprising three accommodation buildings, central kitchen/communal hut and associated toilet facilities;
- board-walking on Halls Island;
- a helicopter landing site near the shore of Lake Malbena opposite Halls Island, and;
- up to 240 one-way helicopter flights between Derwent Bridge and Lake Malbena to provide guest access, with additional flights for maintenance and construction.
The RAA refers to “Stage 2” which both the tribunal and Federal Court found is not part of the proposal. Stage 2 relates to the proposed construction of walking facilities to nearby natural and cultural features.
Details of the permit application submitted to council can be found here and the referral made to the Commonwealth Minister for the Environment can be found here.
This page was last updated on 28th September 2021.
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