Gunns Ltd v Kingborough Council, Day 5
3/6/05

The action brought by Gunns Ltd against the Kingborough Council  for refusal of a Development Application to allow it to road and log private land at Middleton continued today in Hobart before the Resource Management and Planning Appeals Tribunal.

The day eventually ground its way to a halt soon after 4 p.m. with at least one witness not yet heard, both counsel showing their weariness after 5 days.

As with all the other days, the public gallery remained all but empty with the exception of irregular, fleeting appearances of people  believed to be professionals from the RMPAT (and possibly the RPDC) office, and a short visit from a politician sans pony tail.

First to give evidence this morning was consultant planner Irene Duckett, a witness for Gunns Ltd.  Mr Armstrong (for the Council) objected to the acceptance of Ms Duckett’s Proof of Evidence on the grounds that it consisted of a recitation of the opinions of others.  He requested it be taken as “submission”. In response, Mr McElwaine successfully argued that the witness relied on facts established by other witnesses and included some independent factual analysis , for example on tourism.  In answer to many questions from Mr. Armstrong as well as the residents joined with the Council, Ms Duckett said that she was either “not expert in that matter” or had “relied on others” for her information.
 
After Ms Duckett, Gunns Ltd employee Gregory Hickey was recalled briefly to give evidence on the effect of a proposal to leave a strip of forest untouched in the southern coupe, designed to reduce the visual impact of the clearfelling.

Mr Hickey said that the horizontal strip would have to be breached to allow access to the eastern side of the coupe and because that breach would have to be at least two tree heights wide i.e. possibly 70 metres wide, the remaining strip of trees would be weakened.  In addition, there would be a wick effect causing fire and wind problems for the trees which were left.  Because a coupe size of at least 15 ha was needed to get a high intensity burn, the post harvest burn would be sub-optimal.  There would also be more browsing because of the greater ratio of forest edge to clearfell.

In answer to Mr McNeil, he said that the Forest Practices Plan for this coupe was re-written to take account of the matters discussed at this hearing.  It was an malgam of the original FPP lodged with the Council as the Development Application, plus information supplied in the various Proofs plus some handwritten amendments.
 
Mr Armstrong asked if the typed material was the same as the original FPP and was told that it was a derivation of the original.  He then appealed to the Chair, asking if he again had to go through it to find the changes? 

Mr Pitt stood the witness down for a re-call after lunch, to give Mr Armstrong time to read the amended document.

Objected to two paragraphs

After lunch Mr Armstrong called Andrew North, Consultant Ecologist.  Mr McElwaine immediately objected to two paragraphs of Mr North’s Proof of Evidence since they referred to personal communications which had no Proof. Mr Pitt allowed both after one sentence was removed from one.
 
Under close examination from Mr McElwaine Mr North explained that the “TASVEG” program was a work in progress with various iterations since the first draft in 1998. Although it was deliberately not published, it is in the public domain and is in
use.  Only the Forest Practices Board is not using it.

Under very close questioning by Mr McElwaine who requested “Yes” or “No”answers on the Wet E. Globulus  community and where it was listed, Mr North protested to the Chair that Mr Wapstra had been allowed to speak for  three hours. Mr McElwaine said that Mr North’s outburst was inappropriate. The close examination continued on the importance of the Wet E.globulus  community and the Grassy Globulus community  to the Swift Parrot.
 
There was further close questioning on the amount of Wet E. globulus  on the site and how much there would be after the road was built.

After lunch Mr McElwaine corrected himself in relation to the Grassy Globulus Community, in that he agreed that there was a moratorium on the clearing of Grassy Globulus on both public and private land.

There was soon more confusion regarding title boundaries and the old and new Forest Practices Plan boundaries.  It was resolved after reference to numerous maps.

When Mr McElwaine attempted to recall Mr Hickey, Mr Armstrong protested that he was not ready to proceed because another of his witnesses, Ms Bunce, had not had a chance to read the amended document. 
  
In response to Mr McElwaine’s claim that there were only six amendments, Mr Armstrong said that it was not fair that he had to deal with it on the run.  If it was only some hand-written amendments  that would be OK but the base document was different.

Mr McElwaine listed the amendments for the Tribunal, adding that all the changes were in the Proofs lodged 3 weeks ago and Mr Armstrong should not need more time.

In response, Mr Armstrong said that yesterday Mr Williamson was seriously disadvantaged by changes to documents and he needed to speak to Ms Bunce.

The Tribunal members conferred and ruled that it would rule on this after other evidence was completed.

The Chair then addressed the remaining Proof lodged by the six residents from Middleton and Gordon who had joined with the Council in the Appeal. 

As a result of Mr McElwaine objecting to the document because his interpretation of it was that it was clearly a submission, the Chair went through it paragraph by paragraph, ruling what was to be considered as ‘fact’ and what was ‘submission’. 

Residents with organic farms

Since the document was created by each resident contributing a part, each was questioned on his or her contribution.  Two residents with organic farms agreed that most of their concerns had been addressed.

Resident Cassandra Strain called Dr Stephen Mallick , Environmental Consultant and part time employee of the Threatened Species Unit of DPIWE who gave evidence in detail on food sources for the Swift Parrot.

He said that the terms “Wet E.globulus” and “Grassy Globulus” did not refer to different species of trees.  There was only one E.globulus, but the tree grew in different  communities, one being wet, the other dry with a grassy understorey.

The birds fed on a range of plants when necessary, even including shrubs, but preferred E.globulus.  Their only concern was nectar, and they didn’t care where the tree was; it could be by the side of a road, etc. Research was pointing in the direction that blue gums in dry communities tended to flower in alternate years but the flowering frequency in wet areas was not known.  At the Wielangta monitoring site the trees had flowered once in 6 years. 

He said there is a major concern about the risk of a failure of both E.globulus  and E. ovata.  In some years fewer than 5% flower, and two years ago the flowering was abysmal.

He said that 97% of the E. ovata  community was gone, and 55% of the grassy globulus also.  There is probably less wet globulus than grassy globulus.

In answer to a question from Ms Nicholson about the normal process of information sharing between the various agencies, parties etc he suggested that changes come from CARSAG and from TASVEG.  This enables cross-referencing to occur.  He thought that the Community now called globulus had gone to CARSAG.  Other agencies are also involved.  Under the RFA in 1997 there were 50 mapping units.  There are now 77 under TASVEG.  The recognition of a distinct unit is one thing and other information will be used that’s available on the status of any community.  This requires a correction to the mapping.
 
Nicholson:  The Forest Practices Plans have to go with the RFA?  So they are a little behind the TASVEG data ?

North:  Yes. 

In answer to a question from Mr. McElwaine, Dr Mallick said that it took about 35 to 40 years for a clearfelled area to reach flowering age.

The hearing resumes at 10:30 a.m. on 23 June 2005.  It is open to the public.

John Maddock, Citizen Reporter.