Press conference with TWS’ Tom Allen (campaigner) and Claire Bookless (legal counsel), Hobart.

The most recent decision on the permit granted for the Halls Island tourism development is to be appealed to the full bench of the Supreme Court.

The Wilderness Society Tasmania (TWS), Tasmanian National Parks Association (TNPA), Richard Webb and Paul Smith yesterday filed an appeal against the 6 July 2020 decision by Tasmania’s Supreme Court relating to helicopter-accessed luxury accommodation at Lake Malbena within Walls of Jerusalem National Park.

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

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

“Our lawyers will argue 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.

The Court did not determine how the Wild Drake proposal should relate to the TWWHA management plan. That, according to TWS, is precisely the role of the PWS Reserve Activity Assessment.

Lake Malbena. Image courtesy Vica Bayley.

“We did not take this significant step lightly but did so because it defends the Tasmanian Wilderness World Heritage Area from inappropriate development proposals like that for Lake Malbena and the 30 or so more in the tourism EOI pipeline,” Allen said.

“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,” said Allen.

“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.”

The Wilderness Society said it shared the reported concerns of people working within the Parks and Wildlife Service about the state government’s ‘unlock the parks’ policy.

Greens Leader and Parks spokesperson Cassy O’Connor said TWS represents “the broadest cross section of Tasmanians who love their wilderness and are opposed to its commercialisation.”

She described the development at Halls Island as a travesty of proper process that shuts out the community and would degrade wilderness values.

“The Lake Malbena proposal is the thin edge of the wedge for Tasmania’s protected areas,” O’Connor said. “There are around 30 other developments in the pipeline under the Liberals’ divisive and unpopular Expressions of Interest process for development in protected public lands.”

She observed that the Liberals have managed to unite bushwalkers, fly fishers and recreational vehicle users in opposition to the project.

“Anger about the Lake Malbena proposal cuts across all political divides. It’s simply about being Tasmanian and loving our shared natural treasures.”

“They underestimate the determination of opponents of this development, and they do so at their political peril.”

Wild Drake has not provided comment to TT on the latest developments on this issue.

TWS provided these images of how they believe the Halls Island project will degrade wilderness values.

Timeline: Lake Malbena

  • 22 June 2017 Wild Drake re-submits Lake Malbena proposal to Tasmania’s Parks and Wildlife Service’s Reserve Activity Assessment (RAA) process

  • 19 January 2018, lease and business licence agreement between Wild Drake was signed in secret.

  • 28 March 2018 Wild Drake refers proposal to Commonwealth Minister for Environment and Energy for EPBC Act assessment.

  • 29 March 2018 public comment on the Referral commenced and was closed on 17 April 2018. Fifty public submissions were received in this period.

  • 5 July 2018 further public comment was invited again, including on a partly redacted Halls Island RAA, until 19 July 2018. A total of 886 public submissions opposing the Development were lodged in that period, 99% are opposed.

  • 31 August 2018, Commonwealth Govt deems Lake Malbena “not a controlled action” under EPBC Act, meaning that no detailed assessment is required. No conditions were imposed by the Commonwealth on the proposal..

  • 17 October 2018, the Central Highlands Council (Council) received the development application from Wild Drake.

  • 17 October 2018 TWS-TAS file an application seeking the judicial review of Minister’s delegate’s Referral decision in the Federal Court.

  • 21 December 2018, Mr Bayley of TWS wrote a letter to Mr Jacobi of PWS, requesting that the wilderness impact assessment it commissioned by Martin Hawes be considered in the ongoing RAA process.

  • 19 January 2019 Council gives notice of the development application by Wild Drake. 1,346 public representations are received by the Council. Three are supportive of the proposal.

  • 26 February 2019 Council refuses a permit for the development.

  • 12 March 2019 Wild Drake lodges appeal against Council’s decision to refuse a permit with the Resource Management and Planning Appeals Tribunal (RMPAT)

  • 22-25 March 2019, the TWS-TAS, TNPA, Richard Webb and Paul Smith join with Central Highlands Council to defend Council’s decision against the appeal

  • 12 November 2019 the Federal Court hands down its decision in relation to TWS-TAS’s judicial review application. The Court found that there were errors in the process undertaken by the Minister in handing the referral under the EPBC Act. Ultimately, the Court ordered the Minister to remake her decision and awarded TWS-TAS costs in relation to the case. The Minister has not yet remade her decision.

  • 18 December 2019 Tribunal handed down its final decision in the planning appeal, granting a development permit  to Wild Drake’s proposal.

  • 14 January 2020, TWS-TAS TNPA, Richard Webb and Paul Smith appeal Tribunal’s decision to the Supreme Court.

  • 6 July 2020, Supreme Court dismisses appeal by TWS-TAS TNPA, Richard Webb and Paul Smith.

  • 27 July 2020, TWS-TAS, TNPA, Richard Webb and Paul Smith file an appeal to the Full Bench of the Supreme Court.