Planning & Environment Update – 29 July 2021

Welcome to the next edition of the planning and environment bulletin.

If you have any queries or would like further information regarding anything you read in our bulletins, please contact:

Anthony Spence SC
Principal
M: 0400 545 503
E: aspence@pageseager.com.au

Sarah Wilson
Special Counsel
M: 0428 102 712
E: swilson@pageseager.com.au

 

Tasmanian Planning Scheme

Southern Midlands Draft LPS

The Southern Midlands draft Local Provisions Schedule (LPS) is currently on public exhibition, ending 6 September 2020. Representations can be made to Southern Midlands Council during the exhibition period.

Click here to access the draft LPS and related documents.

Launceston Draft LPS

The Launceston draft LPS is also on public exhibition, ending on 18 September 2021. Representations can be made to Launceston City Council during this exhibition period.

Click here to access the draft LPS and related documents.

Please contact us if you would like more information about how this may impact your operation or business.

 

Cable car refused

The Hobart City Council (Council) held a Special Meeting on Tuesday 27 July 2021 to consider the kunanyi / Mt Wellington cable car. The Council refused the proposal on 21 grounds of non-conformity with the Wellington Park Management Plan 2013 (Management Plan) and Hobart Interim Planning Scheme 2015 (Planning Scheme), including:

  • potential for noise to cause environmental harm;
  • clearing of high priority vegetation;
  • failure to avoid or sufficiently remedy the loss of swift parrot habitat values;
  • adverse impacts on the geoheritage values such as the organ pipes;
  • visual impact; and
  • geotechnical stability concerns.

The Management Plan is incorporated into the Planning Scheme by way of clause F3.0 Mount Wellington Specific Area Plan and assessment against it is also a requirement under s52A of the Land Use Planning and Approvals Act 1993.

In refusing the application, Council considered an external consultant planning report on the proposal which was published on the Hobart City Council website on 20 July 2021. The report recommended that the proposal be refused.

The report, along with other documentation considered by the Council, can be found in the Council Agenda here.

The proponents can appeal the Council’s decision to the Resource Management and Appeal Tribunal.

 

4WD tracks on West Coast remain closed to protect indigenous heritage

A long running dispute regarding the Tasmanian Government’s proposal to reopen the tracks in the Arthur-Pieman Conservation Area (Conservation Area) to recreational vehicles use, has finally concluded with the release of a government report finding the likely impact on heritage values is not acceptable and could not be adequately mitigated.

The Conservation Area is part of the Western Tasmania Aboriginal Cultural Landscape listed as a National Heritage Place under the Environment Protection and Biodiversity Conservation Act 1999. A number of legal challenges were commenced by the Tasmanian Aboriginal Centre to prevent the reopening on the basis of the impact to the protected middens and cultural sites in the area.

Accordingly, the tracks will remain closed to off-road vehicles.

Click here to view the Report.

 

Minister held to have duty of care when making decision under the Environment Protection and Biodiversity Conservation Act 1999

In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774, the court held that the Minister for the Environment has a duty of care when exercising powers under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). That duty is to take reasonable care to avoid causing personal injury or death to persons who were under 18 years old and ordinarily a resident in Australia at the time of the commencement of the proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.

On 9 July, Minister for the Environment Sussan Ley announced that the Government will appeal the decision and an appeal has since been lodged.

 

Appeals from RMPAT to the Supreme Court

In Action View Pty Ltd v Resource Management and Planning Appeal Tribunal [2021] TASSC 30 the court examined how proceedings should be initiated when appealing a decision of the Resource Management and Planning Appeal Tribunal (Tribunal). The decision confirms:

  • appeals against decisions of the Tribunal are to be made under s25 of the Resource Management and Appeals Tribunal Act 1993 rather than judicial review application. Where an extension of time is required to file that appeal, such an application, must be made by way of an an originating application.
  • the court held that the Tribunal should not be named as a respondent to an appeal. This confirms the current practice where the Respondents are the parties to the Tribunal decision.

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