In a proposal that examines what role the public has in decisions about development of Tasmania’s wild places, EDO is involved in two cases over a proposed luxury tourism development at Lake Malbena in the Tasmanian Wilderness World Heritage Area (TWWHA).
Halls Island, on 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.
A permit application was lodged by Wild Drake Pty Ltd in October 2018 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 (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. The Court has ordered the parties to agree on a form of orders to give effect to this decision.
This means that the outcome of the decision is likely to be:
- At a minimum, setting clear, transparent and enforceable conditions through a “particular manner” notice, that will define the parameters within which the development will operate;
- The court may order that the decision be referred back to the Federal Environment Minister to be determined in accordance with law, due to the error found in failing to consider whether the full action should be referred.
The outcome will depend on any agreement reached by the parties and whether this is ultimately accepted by the Court. The parties must reach agreement by 26 November 2019 and if not, is to file submissions by 10 December 2019.
In February 2019, the Central Highlands Council had 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 represents The Wilderness Society (Tasmania) Inc (TWS), the Tasmanian National Parks Association, and two individuals in this case. Our clients joined the appeal to support having the refusal upheld.
After an intensive 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 ruled on 21 October 2019 that the development can proceed.
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 its view, it only needs to be satisfied that a management plan exists and that the Tasmanian Parks and Wildlife Service has undertaken an RAA. In December 2019, the Tribunal issued a permit for the Lake Malbena tourist development in the Tasmanian Wilderness World Heritage Area.
In January 2019, Environmental Defenders Office (EDO), acting on behalf of The Wilderness Society (Tasmania) the Tasmanian National Parks Association, The Wilderness Society (Tasmania) Inc and two individuals filed an appeal in the Tasmanian Supreme Court against the decision of the Resource Management and Planning Appeal Tribunal to issue a permit for the Lake Malbena project.
Why is the case important?
This case sets the standards for how development of national parks and reserves are to be assessed under State law in Tasmania, and how the effect of development in a World Heritage Area is assessed.
Our clients were successful on two 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.
Our clients’ case was that the planning authority and Tribunal should assess whether the development is in accordance with the TWWHA Management Plan 2016, including the impact on wilderness values, including naturalness, primitiveness and remoteness of Halls Island in the heart of the world heritage area.
However, on the Tribunal’s view, the planning system cannot assess whether private development in national parks complies with the management plan. On this view, the impacts of the proposal on environmental values, including wilderness values, were not relevant to the Tribunal’s decision.
The case is significant because this was 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 assessed and approved by the Tasmanian PWS. There are many more projects being assessed through this process.
The case is still before the Tribunal for a final decision. The parties to the appeal have now been invited to make submissions on the conditions that should to be imposed on the permit to be issued at the Tribunal’s direction.
Any decision of the Tribunal has the ability to appeal to the Tasmanian Supreme Court within 28 days.
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 on 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 reserve activity assessment refers to “Stage 2” which the Tribunal accepted is not part of the permit application but is expected to involve construction of walking facilities to nearby natural and cultural features.
Details of the permit application submitted to Council can be found here.
EDO Tasmania is the legal entity acting in these cases. EDO Tasmania agreed to merge with EDO Ltd in 2019.
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