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
AND
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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The evidence on behalf of the respondent consisted of expert opinions
to the effect that these risks were either overstated or non-existent.
- 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.
- 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.
- 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.
- I accordingly approach the assessment of the application on the basis
that the failure to offer such an undertaking is a relevant matter.
- 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.
- 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.
- 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