Lake Malbena Tribunal Appeal

The following summary has been provided by the EDO Tasmania who acted for the joined parties of the Tasmanian National Parks Association, the Wilderness Society (Tas) and two individuals in the Resource Management and Planning Appeals Tribunal  (RMPAT).

On 8-9 August, the Resource Management and Planning Appeals Tribunal heard the final two days of the Lake Malbena appeal. The hearing was 7 days in total, resuming from a week of hearing 24-28 June 2019.

The last two days heard evidence from two ornithological experts on risks to the threatened Wedge-tailed Eagle from helicopter access, followed by submissions from each parties’ legal representatives.

Previously, experts in planning, wilderness impact assessment, noise, ecology and aviation safety were called by the joined parties and the Central Highlands Council to give evidence to the Tribunal about the proposed development.

Our barrister, Juliet Forsyth SC, made closing submissions supported by EDO Tasmania’s lawyers Nicole Sommer and Claire Bookless.

In closing, Ms Forsyth addressed the legal issues raised by the Attorney-General and Wild Drake Pty Ltd (the Apellent), who both took issue with the Tribunal’s jurisdiction to consider impacts to the TWWHA.

The Attorney-General intervened to make the submission that the TWWHA Management Plan covers the field, saying that no planning permit is required in the TWWHA.

The Appellant’s lawyer supported the AG’s position and also argued that:

• the Tribunal should not consider impacts to wilderness because this is covered by the EPBC Act referral;
• the RAA process should be taken as proof of compliance with the TWWHA Management Plan.

Our submissions responded to those issues and addressed the substantial evidence called in the case. Our submissions were that:

• a planning permit is required in the TWWHA;
• the planning scheme requires that the use be undertaken in accordance with the TWWHA Management Plan;
• the TWWHA Management Plan requires an assessment as a whole, including against the Self-Reliant Recreation Zone and impacts to wilderness;
• on the evidence before the Tribunal, the proposed tourist accommodation fails that test.

The Tribunal has reserved its decision. We expected a decision mid-September, although this time frame has now been extended to 30 September.

While this appeal considers whether a permit should be granted for the proposed development for Halls Island, the Tribunal’s decision could have broader implications for developments in the TWWHA and Tasmania’s reserves.

For more on this case, see here.