South Sister St. Marys, Tasmania

South Sister

tribunal decision

File No:A8/05     J 51/2005

Environmental Management and Pollution Control Act 1994 -S48 – Temporary Order – Failure to provide undertaking

BETWEEN

Environmental Defenders Office
Obo J Weston and Others

Appellants
 

AND

Forestry Tasmania

Respondent

This was the hearing of an application pursuant to Section 48(5) of the Environmental Management and Pollution Control Act 1994, for temporary orders restraining the respondent from conducting forest practices pursuant to the Forest Practices Act 1985 on State Forest Coupe NI 114A near Dublin Town in the Break O'Day Municipality.

The application was heard at Hobart on 4 March 2005

J Feehely of Counsel appeared on behalf of the applicants.

J McDonald of Counsel appeared on behalf of the respondent Forestry Tasmania.

DECISION

  1. Application was made pursuant to the Environmental Management and Pollution Control Act 1994, for orders restraining the respondent from carrying out forest practices, on State Forest Coupe NI 114A situated in the vicinity of South Sister, in the Break O'Day Municipality near Dublin town.
  2. The temporary order sought pursuant to Section 48(5) of the above Act was to restrain road making, which it was common ground was almost completed, and to prevent harvesting which it was again common ground, would if not restrained take place over the 9 to 10 weeks next following the hearing.
  3. The application alleged a contravention of the above Act by the proposed forestry operations being likely to result in serious environmental harm, and/or material environmental harm, and/or an environmental nuisance, contrary to Sections 50, 51 and 53 respectively of the above Act. The application was on the basis that the road-making operations and the timber harvesting and associated operations would be likely to cause a significant interference with the surface and ground water systems in the South Sister area. The resulting turbidity would potentially pollute the water emanating from the catchment. Further, by ultimately reducing the quantity of water available when regrowth occurred; and, thirdly, by increasing the risk of landslides in vulnerable areas of the catchment. It was contended that the latter effect would occur by the forest practices causing an increased percolation of water into underground strata, potentially destabilising them.
  4. The application being for a temporary order, evidence was received from both parties without objection as to form. From the applicant the evidence consisted of a number of copies of reports by experts in geotechnical and hydrology and associated matters. The evidence on behalf of the respondent consisted of a report from a Senior Research Fellow at the School of Forest and Ecosystem Science at the University of Melbourne.
  5. The substance of the evidence by way of the expert reports tendered on behalf of the applicant was that there was a risk of increased vulnerability to landslip or landslide, as a result of the proposed forestry operations on the east slopes of South Sister above Germantown Road. Further, that there was a significant risk of landslip as a result of forestry operations on the south slopes of the coupe. Both of these results would potentially arise from the removal of the trees and understorey caused by the forestry operations allowing greater percolation of water into the underlying strata. Stated at its highest, the expert opinions for the applicant were that this destabilisation was likely to result from the proposed forestry operations.
  6. The evidence for the applicant, against stated at its highest, was that there was a risk of the forest practices resulting in pollution of the surface water by sediment, and the subsurface water courses by sediment and disturbance. This would result in potential pollution of water supplies utilised by many of the applicants, and also utilised by St Marys township. Further, that there was a risk that subsequent growth on the harvested area would use greater amounts of water than the existing, resulting in a diminution of the quantity of water to the St Marys supply.
  7. The evidence on behalf of the respondent consisted of expert opinions to the effect that these risks were either overstated or non-existent.
  8. I approach the consideration of whether to grant the temporary order upon the basis that the applicant is required to establish a prima facie case, not that it is necessary to determine the outcome of any conflict between the evidence for the different parties. A number of matters with respect to the proper construction of the provisions of the relevant Act and what was necessary to constitute a contravention of the Act, were put on behalf of the respondent. Because of the conclusion I have reached with respect to the issue of an undertaking in this matter, I assume those other matters in favour of the applicants, for the purposes of consideration. Upon that basis, I am satisfied that there is a prima facie case established by the evidence tendered on behalf of the applicants.
  9. The applicants declined to offer any undertaking to make good any loss suffered by the respondent or others, should the temporary order prove to have been inappropriately granted. While there is no relevant legislative requirement for such an undertaking as a condition of the granting of a temporary order, it is clear that it is a significant matter to be taken into account in the exercise of the discretion whether or not to grant the order. In Ellison v. Warringa Shire Council (1985) 55 LGRA 1, Bignold J reviewed the authorities with respect to the requirement for such an undertaking in "public interest" applications brought pursuant to Section 123 of the Environment Planning and Assessment Act 1979 (NSW). Bignold J analysed the position of a private plaintiff bringing proceedings pursuant to Section 123, and determined that the position of the private applicant could not be equated with that of the Attorney-General with respect to the issue of whether the undertaking should be required.
  10. For the applicant it was contended that a number of authorities since Ellison led to a different conclusion. Those authorities however were determined pursuant to statutory provisions giving open standing to applicants. In the above Tasmanian Act by Section 48(5) limits the potential applicants other than the Director or a Council, to persons having a "proper interest". Provision is made for the Director of Environmental Management or a "Council" to bring such applications, and it may reasonably be inferred that they would be acting in the public interest as opposed to pursuant to a private interest represented by a "proper interest". Nothing else appeared from the Tasmanian legislation to avoid that conclusion.
  11. I accordingly approach the assessment of the application on the basis that the failure to offer such an undertaking is a relevant matter.
  12. Evidence was given on behalf of the respondent that harvesting and transport contractors engaged for the proposed forestry operations in the relevant coupe could be diverted to the next available coupe, but that after harvesting of that coupe there was a substantial risk they would not have any alternative work, potentially for a period equivalent to that which the 9 to 10 week proposed operations on the present coupe would take. The witness for the respondent who gave that evidence was cross-examined and his evidence was sustained. Subsequent to the hearing the applicant forwarded written material apparently identifying contingency areas within the relevant northern Tasmania district, to which forestry operations could be diverted if there were changes in accessibility. This information was in a Forestry Tasmania document entitled "Planning 2004-05 to 2006-07 Three Year Wood Production Plans". It can reasonably be inferred that the respondent's witness, Manager of the relevant northern Tasmanian district, was aware of the contents of that document when he gave his evidence and took it into account. Nothing has been produced to the Tribunal to suggest to the contrary.
  13. The evidence of the financial loss which would be suffered in the event that the temporary order was granted, ran into many tens of thousands of dollars, to be suffered in part by Forestry Tasmania and in part by independent forestry and transport contractors. Being satisfied of those matters, I consider that this is a case where an undertaking is properly required as a condition of a temporary order.
  14. As no undertaking is to be offered, taking account of all the above matters, the temporary order sought is refused.

Dated this 4th day of March 2005

KAM Pitt QC
Chairman

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