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Jan 06: Gippsland based Conservation Group takes legal action against Hancock.

One interpretation of the Case can be seen below.

VPELA Newsletter - July 2006

Friends of Gippsland Bush Incorporated v Latrobe City Council & Anor [2006] VCAT 465

[3] March 2006, Gibson DP

Finally; VCAT delivers on the promise of a "one-stop shop".

Clause 52.17 of the Latrobe Planning Scheme provided, relevantly, that no permit was required to remove, destroy or lop native vegetation for the purposes of:

...timber harvesting carried out under a licence from the Secretary to the Department of Sustainability and Environment (emphasis added).

Grand Ridge Plantations Pty Ltd held a licence granted in 1998 by the Victorian Plantations Corporation (VPC) pursuant to s 27B of the Victorian Plantations Corporation Act 1993 (the VPC act) to remove native vegetation from land known as "Jacksons 1" coupe in Gippsland.

The question before the tribunal was not one, with respect, attended with any difficulty. As the tribunal said (at [10]):

(t)he question to be decided is whether the licence from the Victorian Plantations Corporation authorising timber harvesting on the subject land can be considered to be the same as a licence from the Secretary to the Department of Sustainability and Environment within the meaning if the exemption contained within clause 52.17-6.

A licence from the Secretary of the DSE would, had one been granted, have had to have been granted under the Conservation, Forests and Lands Act 1987.

It would appear likely, from the reasons, that the tribunal was not assisted by the way in which the question was argued. The applicant pursued the line that the Secretary had not delegated the authority to grant a licence to the VPC (at [13] - [15]. Senior Counsel for Grand Ridge, however sought to establish that:

the legislative regime equated a licence for timber harvesting from the Secretary of the Department of Sustainability and Environment with a licence for timber harvesting from the Victorian Plantations Corporation. He submitted that to understand the exemption, attention should be focused on the words timber harvesting carried out under licence. There were the important and operative parts of the exemption, not by whom the licence was given... (at[12] - second emphasis added).

Nevertheless, there was no doubt that clause 52.17 (and its predecessor provision) had previously been amended as necessary to record accurately the grantor of the licence which would attract the exemption (at [17]). No amendment to clause 52.17 had been effected to accurately record the fact that the VPC had assumed the role of grantor of licences to harvest timber under the VPC Act, notwithstanding that amendments had been made to that clause on at least 3 occasions since the introduction of the new format schemes. 2

Notwithstanding the clear and unambiguous words of the exemption, the tribunal (via the application of a novel approach to statuatory interpretation) found that:

to fall within the exemption the licence may be a licence from the Secretary to the Department of Sustainability and Environment or may be the equivalent of such a licence (at [16] - emphasis added).

The tribunal appears to have relied on the decision of Osborn J in Roads Corporation v McCarthy & Ors [2004] VSC 369, in which His Honour (at[23]-[25]) had held that having regard to:

*the functions conferred on the tribunal under the Planning and Environment Act 1987 (the Act); and

*the functions conferred on the tribunal under the VCAT Act;

the tribunal was not prevented from granting a permit which a council was otherwise required to refuse by the terms of a 61(2) of the Act.

Importantly, s 61(2) expressly referred only to a 'responsible authority' and, given the clear scope of the tribunal's functions under the Act and the VCAT Act, no intention to restrict the tribunal's powers in like terms was otherwise evident. There was no occasion for the implication of such a restriction on the tribunal (see also at [36]-[42] and [45]-[51] in McCarthy.

With respect, the tribunal appears to have misconstrued and misapplied His Honour's reasoning in McCarthy (set-out at [19] of the tribunal's reasons), in cloaking itself with the authority to relieve the Minister of his failure to amend clause 52.17 (a state standard provision) such that it supported the regime established under the VPC Act.

The tribunal's resort to 'common sense' (at [22]) has a fleeting superficial attraction. But nothing in the Act, the VCAT Act, the VPC Act or the principles of statuatory interpretation authorises de facto amendment of a planning scheme by the tribunal or, for that matter by a court.

The Parliament (and the Minister) had ample opportunity to give effect to the "...aspirations of Parliament at the time of the approval..." of the VPC Act (at [22]) but failed so to do.

For the tribunal to assume power to act to fill the breach, as it has done in this case, is to do so with scant regard for the maintenance of the rule of law. Then again, 'common sense' (like 'plain English') is rarely, if ever, as simple as it first seems.

Footnotes

1 Followed by Gibson DP in Terminals Pty Ltd v Greater Geelong City Council [2005) VCAT 265 and by Morris J in Visic v Greater Dandenong City Council [2005) VCAT 1714. Neither set of reasons reveals whether any submissions were made by the respective parties on the issue of third party participation.

2 Amendments VC31, 35 and 38 (on 16 March 2006).

June 28, 2005

For those interested in the legal details of Justice Harper's Supreme Court verdict in the case of Hastings v Brennan & Anor; Tantram v Courtney & Anor: The full verdict should soon be listed under ‘Hastings’ at http://www.austlii.edu.au/au/cases/vic/VSC/toc-H.html The verdict is 13 pages long and is summarised as follows: _______________________

Relief in the nature of certiorari is granted & the County Court decision, (that Hastings & Tantram were guilty & must pay $15000 court costs), is quashed. Hastings & Tantram were charged with “obstructing a lawful logging operation” (s.95A(1) Conservation Forests and Lands Act 1987) and “obstructing a person in the lawful carrying out of forest operations” (s.95A(2) CFL Act).

These offences have three common elements; (1) that the person hindered or obstructed the activity; (2) that the activity could be described as “forest operations”, and (3) that the forest operations were lawful. The third element here was in dispute.

The plaintiff’s case was that it was unlawful because the coupe boundaries either included rainforest or had insufficient buffers on rainforest, and that rainforest or protected trees such as “individual trees which, because the contained the nests of the Powerful Owl, could not be lawfully logged”. Although “it is highly regrettable that the judgement of the court should contain the inconsistencies”, of wording re the burden of proof, the County Court Judge was satisfied beyond reasonable doubt that logging was lawful.

The Code of Forest Practices requires “rainforest must be excluded from timber harvesting”. The Code is incorporated into law via the CFL Act and the Forests (Licences and Permits) Regulations. It follows that loggers were bound to comply with the Code, but question remains if this applies to the Department.

The County Court Judge required “a conscious disregard” for the Code & other instruments. “If this is so, then careless stupidity, resulting in (for example) large areas of rainforest being included in a coupe and subsequently logged… would not render that forest operation unlawful. But in my opinion it is not so.”

Forest Management Plans and Forest Coupe Plans “are (and were) also required to be consistent with the Code, and to exceed the minimum requirements outlined in the Code where necessary to protect environmental values”. The County Court’s judgement “does not address the real issues in this case,” as it did not consider “that rainforest is protected by the Code, that logging of rainforest is illegal, and that such logging was being carried out in the coupe”.

The County Court “was bound to explain the reasons for his choice. This was not done.” The County Court’s “failure to consider, in his judgement, the plaintiff’s case that the licence holder had failed to comply with the terms and conditions of the relevant licence is in my opinion itself a sufficient basis upon which to grant relief in the nature of certiorari”. The grounds put forward that “the judge failed to provide adequate reasons for his decision …must be upheld”.

“This is not a precedent either way”, in terms of whether the defence of honest and reasonable belief can be used “by self-appointed protectors of the environment” The applications should be allowed because “they were denied natural justice because the judge predetermined their guilt”, when he formed a view early on “that the ‘presence’ of ‘some rainforest’ was not something of relevance”. ____________________________

Necessary consequential orders to be discussed out of court, with hope of a consent order being reached. Those orders include costs, and whether or not the matter may be sent back to the lower courts for re-hearing. Indications are that costs will be paid to the Plaintiffs and the case not re-heard or appealed to the High Court.

On November 23 2000, the LaTrobe Shire launched legal action against Hancock Victorian Plantations. The dispute was settled out of court.