Lake Malbena decision appealed to Full Court of Tasmania’s Supreme Court

The Wilderness Society Tasmania, the Tasmanian National Parks Association, Richard Webb and Paul Smith, yesterday filed an appeal against the 6 July 2020 decision by Tasmania’s Supreme Court relating to helicopter-accessed visitor accommodation at Lake Malbena within the Tasmanian Wilderness World Heritage Area.

In that decision, the Supreme Court held that there was no legal error in the granting of a planning permit to the proposal by Tasmania’s Resource Management and Planning Appeal Tribunal, effectively allowing the proposal to proceed.

Representing the appellants, barristers instructed by lawyers from the Environmental Defenders Office Ltd will argue that the Supreme Court should have found that the Tribunal’s decision was affected by a legal error and should have been overturned by the Court.

“Our lawyers will be arguing that the Court made a number of legal errors in reaching its decision, including in holding that the Tribunal did not have the jurisdiction to assess the proposal against the Tasmanian Wilderness World Heritage Area Management Plan 2016, and in the construction of the relevant provision of the Central Highlands Interim Planning Scheme,” said Tom Allen for the Wilderness Society Tasmania.

“We did not take this significant step lightly but did so because it helps defend the Tasmanian Wilderness World Heritage Area from inappropriate development proposals like Lake Malbena and the 30 or so more in the tourism EOI pipeline.

“Tasmania’s World Heritage-listed national parks are for people and nature, not profits, privatisation, developers and choppers. We are determined to defend their integrity.

“This appeal is important because we believe the Supreme Court’s decision left unanswered questions about what formal rights the community has in the grant of authorisations for inappropriate development in national parks, including rights of independent legal review

“This is crucial given that the incoming Tasmanian Planning Scheme envisages that local communities and local councils will not have an opportunity to review the merit of developments in national parks if Tasmania’s Parks and Wildlife Service approves them.”

Contrary to statements made elsewhere, the Tribunal or the Supreme Court did not endorse or consider in detail the processes undertaken by the Parks and Wildlife Service leading to authorisation of the development at Lake Malbena.

“We were interested to read reports indicating that the Court and the Tribunal had endorsed the handling of the Lake Malbena proposal by the Parks and Wildlife service. This is misleading. The Court and the Tribunal explicitly found it was outside of the Tribunal’s jurisdiction to consider this issue,” said Mr Allen.

“The Wilderness Society shares the reported concerns of the people working within the Parks and Wildlife Service about the State government’s approach to promoting developments in national parks and reserves.

“The Covid recovery period affords us an opportunity to reset tourism policy in Tasmania, as several experts have recently recommended. A better tourism policy could involve:

  • Changing the Government’s “unlock the parks” policy so instead of facilitating inappropriate development within remote national parks and reserves, the government focuses on developing sustainable tourism infrastructure and facilities within and in collaboration with local communities.
  • Establishing an ecologically sustainable tourism criteria with a view to Tasmania becoming the world-leader in this field.
  • Establishing the world’s best practice ecologically sustainable tourism which protects and conserves the world’s highest-quality wilderness areas.

If the appeal to the Full Court is upheld, it is expected that the Full Court will order that the Tribunal’s decision is set aside, and that the Tribunal make a fresh decision in consideration of the extensive evidence relating to the merits of the proposal, including its adverse impacts on the wilderness and ecological values of the area, that was presented by the parties.

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