Chapter 14

Taking legal action can be an intimidating experience, but need not be so. This chapter outlines how the legal system works, plus important information about:

• court procedures

• costs that may be incurred

• when and how to get legal assistance

Please note: What follows is a guide only and should not be relied on as a substitute for professional advice.

Environmental disputes in Tasmania are heard in a number of tribunals and courts, depending on the issues and laws involved.

By far the most significant institution for environmental matters is the Resource Management and Planning Appeal Tribunal (RMPAT).

Generally referred to simply as The Tribunal, this is a one-stop-shop for appeals and civil enforcement actions in planning and environmental disputes.

There is considerable scope for ordinary citizens to initiate legal action in the Tribunal – almost all land use disputes are contested here, at least in the first instance.

(☞ See below for detailed information about the Tribunal’s functions and processes)

The Magistrates Court comprises a number of divisions in which prosecutions take place. If you commit an offence under environmental laws you may be prosecuted in this court or in the Supreme Court, generally depending on the nature of the offence and the penalty that can be imposed.

Environmental prosecutions are normally initiated by government agencies, including local councils.

• The Supreme Court of Tasmania hears appeals from the Tribunal and other courts.

• If you take legal action based on common law, this may be started in the Supreme Court (although, if all parties consent, some actions may be started in the Magistrates Court.)

Cases before the Supreme Court are heard at first instance by a single judge. His/her decision may be appealed on questions of law to a panel of three other judges who, when sitting together, are known as the Full Court of the Supreme Court.

Information about the Magistrates Court and the Supreme Court is available via this website: <http://www.courts.tas.gov.au.>

• The Federal Court of Australia hears cases involving Commonwealth laws. It also hears appeals from Commonwealth tribunals such as the Administrative Appeals Tribunal (AAT).

• The High Court of Australia sits at the top of the Australian court hierarchy. Appeals from the Supreme Court and from the Federal Court may be taken to the High Court – but it will only hear appeals in those cases it considers are significant enough to justify its involvement.

Please note, this chapter only provides general information about the conduct of appeals before the Resource Management and Planning Appeal Tribunal.

For more detailed guidance on Tribunal processes, see;

• The Tribunal’s Practice Directions (Click HERE to download)

• The EDO publication:
  “GOING IT ALONE: A Guide for Unrepresented Litigants in the Resource Management and Planning Appeal Tribunal” (Ph 6223 2770 to order)

The Tribunal is a critical component of Tasmania’s Resource Management and Planning System described in Chapters 3, 4, 5 & 6.

Its role is not to prosecute and punish offenders with fines and gaol sentences (this is done in the courts). The Tribunal exists primarily to receive appeals from citizens, and in deciding those appeals, to ensure that Tasmania’s planning and pollution laws are upheld and to mediate between disputing parties. The Tribunal does not initiate investigations or cases of its own.

Appeals in the Tribunal can be initiated by ordinary citizens under a range of Acts, tabled in Chapter 4 (☞ Go to Chapter 4). These Acts prescribe what decisions can be appealed in the Tribunal, who may appeal and what orders the Tribunal can make.

The Tribunal operates in accordance with the Resource Management Planning and Appeal Tribunal Act 1993.

• The Tribunal is more 'user friendly' and less formal than a court.

• Hearings are intended to be conducted with as little formality and technicality and as simply as a “proper consideration of the matters before the Tribunal permits”.

• The Tribunal is not bound by the rules of evidence and may inform itself on any matter and in any way it considers appropriate.

• It must, however, observe the rules of natural justice: It must ensure that every party to an appeal is given a reasonable opportunity to present their case, to inspect any documents on which the Tribunal proposes to rely and to make submissions in relation to those documents (Section 19).

• It conducts its hearings in public (unless particular evidence needs to be given in private to protect confidentiality).

Because one objective of Tasmania’s Resource Management and Planning System (☞ see Chapter 4) is to encourage public involvement in resource management decision, a citizen’s right to make appeals in the Tribunal is fairly open. However, there are some specific limitations as to who can institute appeals to the Tribunal.

Legal standing refers to your right to be heard in legal proceedings. Who has standing in relation to an appeal depends on the nature of the appeal, the relevant legislation and the circumstances of the particular case.

In the case of planning appeals you have standing to lodge an appeal if you made a representation to the local council. (☞ Go to Chapter 5 for information).

Alternatively, if your interests are affected by a decision, you may apply to the Tribunal to be made a party to an appeal which has been instituted by someone else. The Tribunal’s power to make a person a party to an appeal depends on the nature of the appeal. For planning appeals, the Tribunal will not allow you to join the appeal unless you made a representation, or you have a “proper interest” (see below) and a good reason for not making a representation.

Parties who join an appeal may be restricted to arguing only those points raised by the person who originally appealed. For these reasons, you are in a better position if you institute your own appeal than if you rely on trying to join someone else’s appeal.

Traditionally, to initiate action in environmental law cases based on common law, courts required you to demonstrate that you had an interest in the subject matter of the action which is greater than that of an ordinary member of the public – a “proper interest”.

In recent years, the general trend in environmental law around Australia has been to relax restrictions on standing. This has allowed wider scope for members of the public to take legal action for the benefit of the environment.

• You may ‘have a proper interest if you have an ‘interest in or connection with’ the land or the issue at stake and that ‘interest or connection’ is greater than that of the bulk of the population. For example, if you live nearby or take water downstream from the development, you would have a specific interest and be affected by the development more than the general public

• A conservation group that is active in the subject area and has been involved with the specific issue appealed against may have a ‘proper interest’.

• Merely wanting to uphold the planning scheme or environmental laws is not enough to demonstrate a ‘proper interest’ on its own.

• you live or own property in the vicinity of the subject land;

• you have obtained an ‘interest in or connection with the land' through regular visits to or use of the land (for example, if you walk on the beach each day, you may have a proper interest in a development that will restrict access to the beach);

• your community group runs a playgroup in a hall that will be demolished as part of the proposed development;

• a proposed development will significantly increase traffic in your area.

Standing can be a complicated issue. If you have concerns, you should contact the Environmental Defenders Office for advice about whether you can demonstrate a sufficient interest in the appeal.

If you are seeking urgent orders against a pollution incident or similar (under EMPCA) or a breach of a planning permit or planning scheme (under LUPAA), then you should apply to the Tribunal immediately and can ask for an early hearing. But note that normally you will be required to provide an undertaking to pay any loss or damage suffered by the respondent should your action be unsuccessful.

For most resource management appeals, including appeals against a planning decision (see Chapter 5), you must lodge a Notice of Appeal within 14 days from the date of the letter notifying you of the decision (regardless of when you actually receive the letter). You can request an extension in some circumstances, however it is better to lodge your appeal as promptly as possible.

For Civil Enforcement actions, you will need to commence proceedings within 2 years of a breach under LUPAA or within 3 years of a breach under EMPCA.

Before lodging your appeal, you need to consider whether you have good grounds for an appeal. If the Tribunal finds your appeal to be frivolous or vexatious, it must dismiss the appeal and direct you to pay the costs of the appeal (including costs incurred by other parties).

The Tribunal would be less likely to find your appeal to be frivolous or vexatious if you have appealed for legitimate reasons and if you avoid raising unreasonable arguments that are without substance or are totally lacking in merit.

For more guidance on what are reasonable grounds of appeal, see the Tribunal’s Practice Directions - (Click HERE)

You will need to complete a Notice of Appeal form and lodge it with the filing fee before the appeal period expires (this period may be extended in some circumstances).

You can get a Notice of Appeal from the Tribunal or download a copy from their website - click HERE. The Notice of Appeal should clearly state the decision that you are appealing against and the reasons that you think the decision was wrong (your “grounds of appeal”).

After you lodge a Notice of Appeal, a notice will be published in the public notices section of your local newspaper (generally on the following Saturday). The notice will give a date for a directions hearing that you will need to attend to discuss your appeal.

In normal circumstances, the parties to an appeal will be:

• the person who has instituted the appeal

• the person who made the decision that is being appealed against (often a local council)

• the person whose initial action gave rise to the decision appealed against (eg. a developer)

If the appeal relates to a refusal or conditions resulting from a water corporation’s submissions (see Chapter 5), the corporation is also taken to be a party to the appeal. Water corporations also have a right of appeal in relation to any planning applications which have been referred to the corporation for comment.

Any other person whose interests are affected by the decision can also apply to join the appeal. For planning appeals, the Tribunal will not allow a party to join the appeal unless the person made a representation, or has a proper interest and a good reason for not making a representation.

If you start Civil Enforcement proceedings under LUPAA, the local council will automatically be made a party. The Tasmanian Planning Commission may also apply to be made a party.

The Tribunal was designed to enable untrained citizens to represent themselves in planning and environment matters.

You are not required to have a lawyer. You can represent yourself, or someone can present your case for you. However, if you have no experience it is advisable to at least obtain initial professional advice prior to becoming involved in Tribunal proceedings. You can be assisted or represented by any person, including a lawyer, a planner, an engineer or a friend who has experience with Tribunal matters. In some circumstances, it can be very advantageous to have a professional represent you. The Tribunal places considerable emphasis on the evidence of expert witnesses. Therefore, if a developer has engaged experienced professionals to present his case, you may be disadvantaged if you do not have expert assistance to present your side of the argument.

When deciding whether you need a representative, consider whether you are able to prepare and present your case from beginning to end. If there are any areas where you are unsure or need clarification, it may be sensible to seek advice and assistance.

Even if you do represent yourself in the Tribunal, it is wise to seek advice at the outset to draw up your grounds of appeal, gather evidence from expert witnesses and generally prepare for the hearing.

The Tribunal has a register of professionals (including planners and lawyers) who are prepared to provide free initial advice. This is generally a 15 minute phone call. After that you will need to discuss engaging the professional on a fee-for-service basis. Contact the Tribunal for information about this service.

The Planning Institute of Australia also offers a free advice service, Planning Aid, through the Hobart Community Legal Service. www.planning.org.au/tas

Please note: Professionals have different skills and responsibilities. They will provide a professional opinion, and this may not coincide with your own view. It may also be difficult for them to provide an opinion without properly considering the material. For this reason, you may need to pay for an initial assessment simply to find out if your case is worth pursuing.

If you engage a professional to help your appeal, you should ask them to explain to you fully at the beginning all the likely costs that may arise from the Tribunal proceedings.

It’s best to get legal advice as soon as an issue arises because delay can adversely affect court cases. Once a decision has been made, there are strict deadlines for making appeals. Sometimes a delay can mean losing your case — even if your legal claim is correct. Delays can also be expensive.

If you choose to represent yourself in any proceedings, lawyers can still be helpful in giving advice. You can usually get free preliminary legal advice from legal centres that provide legal aid in one form or another. These include the Environmental Defenders Office, Community Legal Centres, the Aboriginal Legal Service, the Law Society of Tasmania and the Legal Aid Commission of Tasmania. (See contacts at end of Chapter)

The Environmental Defenders Office is a specialist legal advisory service dealing with environmental issues. It offers free advice and, in some instances, can assist in court proceedings.

Community Legal Centres provide general legal advice to the community and have a range of publications to assist those who need to represent themselves.

The Legal Aid Commission of Tasmania cannot usually assist you with civil environmental cases in court, but it will usually provide initial legal advice.

Each of these agencies is aware of the services offered by the others, and can readily refer people to the right place when contacted.

If you can, it’s best to get advice from a lawyer with special knowledge of environmental law and experience in bringing cases before the Tribunal and other courts. He or she may be able to identify quickly whether a potential development appeal has good prospects of success. Lawyers inexperienced in environmental law may have to refer the matter to other lawyers.

To find specialist lawyers in the environmental field, it may also be worthwhile to contact groups who have been involved in litigation and get their recommendations.

The Legal Aid Commission has limited resources and can no longer provide legal assistance for civil cases, which includes most environmental law matters. The Environmental Defenders Office is therefore the best first point of contact for such matters. However, Legal Aid may provide legal assistance to people who have been charged with criminal offences.

1. Directions Hearing
   
2. Compulsory mediation conference
   
3. Full Hearing (if necessary)
   
4. Final decision, including any orders
   
5. Orders in relation to costs (in some cases)

The Directions Hearing is a preliminary meeting of the parties, generally before the Registrar of the Tribunal. It is usually held within two weeks of the appeal being lodged – the date of the directions hearing will appear in the public notice in the newspaper regarding the appeal.

In the directions hearing, the Registrar will consider applications from any other parties who want to join the appeal.

Parties to the appeal may also request documents from each other to assist in structuring their arguments. The Tribunal can make orders for parties to provide relevant documents to all the other parties.

Another purpose of this directions hearing is to clarify the issues in the appeal and to see if some or all of the issues can be resolved by mediation or whether it will go to a full hearing. The Tribunal now generally requires that parties attend mediation before setting a hearing date.

Finally, at the directions hearing the Tribunal will set out a timetable for the appeal, including dates for mediation, exchanging evidence and a full hearing (if necessary).

All parties must comply with the directions of the Tribunal made at this hearing.

This is a conference with the Registrar. It is Tribunal practice to have a mandatory initial mediation - a person who does not attend the mediation may be excluded from the appeal, or their application will be dismissed. If you want to be represented by a lawyer at the mediation conference, you must give the other parties at least 48 hours notice.

The purpose of a mediation is to allow all the parties to try to find a mutually acceptable solution to an appeal. If all parties reach agreement at the mediation, the Tribunal may, without holding a hearing, make the orders agreed to by the parties.

• The terms of the agreement are put in writing and signed by all parties and then given to the Tribunal.

• If the Tribunal is satisfied that a decision in those terms would be within its powers and appropriate, it can consent to the agreement and give orders that it be carried out.

Even if the parties do not resolve all the issues, mediation can be a useful way to reduce the number of issues that will be considered at a full hearing.

Note 1: Mediations are confidential and evidence of anything that happens at a conference is inadmissible at the full hearing.

Note 2: If you are acting on behalf of an organisation or a group of people in an appeal, you should obtain a signed authority to settle on behalf of your organisation or group at the mediation.

Note 3: A mediation may include a visit to the site.

If a full hearing is necessary, the parties will generally appear before the Tribunal panel to present their evidence. The panel is normally comprised of the chairperson (who must be a lawyer) and two other members (specialists in a relevant field, such as engineering , town planning or heritage issues).

• The Tribunal must hear and determine an appeal within 90 days of it being lodged (unless the parties agree to extend this period).

• The Tribunal usually reserves its decision at the end of the hearing (that is, they do not make a decision immediately).

• The Tribunal must notify each party to the appeal of its decision as soon as practicable after making its decision (normally within two weeks). The Tribunal provides written reasons for its decision (including its findings on questions of fact and the evidence or other material on which the findings are based).

• Once the Tribunal has handed down its decision, it has no further jurisdiction and generally cannot enter into any correspondence with the parties in relation to the decision

• The decision comes into effect 10 days after it is made (unless the Tribunal has specified another date).

☞ See below for information about costs.

Important: All witnesses must be present at the hearing so that their evidence can be tested by questions from opposing parties. Without the witness being present, written evidence may be disregarded.

To prepare for your appeal, you should list all of your grounds of appeal, and work out what evidence you will need to support your arguments for each ground. For example, if you are arguing that a development will have an adverse impact on a threatened bird species, you may need evidence about the breeding habits or migratory patterns of the bird or expert advice on how fragmentation of habitat will reduce breeding success.

Other evidence in support of your case may include photographs, video/audio tapes, plans or maps, and documents.

You need to put all the evidence you wish to present in support of your case in writing (this is called a proof of evidence) and provide it to the other parties before the appeal. As a general rule, evidence which has not been given to all other parties beforehand cannot be presented to the full hearing.

Each witness you are calling to give evidence must prepare a separate proof of evidence and must attend the hearing to be cross-examined on their evidence. Each expert witness should give details of their relevant qualifications in their proof of evidence.

Proofs of evidence are generally exchanged 14 days before the hearing date (the Tribunal will make directions about when proofs must be exchanged). You must give three copies of all the proofs to the Tribunal and one copy to each other party.

The parties are then given 7 days to prepare response proofs or supplementary proofs which point out problems with the other expert reports, or provide more information in response to questions raised by other experts.

Note: It is a good idea to organise your documents and the documents you receive from the other parties in a folder with an index, so that you can find them easily during the hearing.

The Tribunal can make orders about how evidence is presented at a hearing. However, the usual sequence is:

• First, the developer presents their case.

• Second, the planning authority (council) or decision making authority responds

• Finally, the person who lodged the appeal and any other parties to the appeal present their arguments.

• You should firstly confirm (and if necessary correct) your proof of evidence. (There is no need for the whole proof to be read aloud).

• If you would like to clarify or further explain your evidence (such as providing original colour photographs to the Tribunal), this is the time to do it.

• You cannot normally expand or add to your written evidence at this stage.

• Only present facts and professional opinions in your evidence. Leave your arguments about the merits of the case (that is, whether the Council made the right decision) until later (see final submissions, below).

Following the evidence of each witness, the Chairperson invites the representative of each other party and then Tribunal members to ask questions of that witness.

You should prepare for the cross-examination of each witness before the hearing by carefully going through his/her proof(s) and preparing questions you wish to ask. Take careful note of any relevant comments the witness makes at the hearing before (and after) your cross-examination.

When cross-examining you should only ask questions. You should not make comments or statements – there will be an opportunity to make these comments when summing up your case in the final submissions.

• Keep the questions short, relevant and concise.

• Give the witness ample time for a response.

• If you have photographs, a statement or any other evidence that directly contradicts what the witness has stated or was in his/her proof of evidence, you should present these to the witness. Ask questions about that evidence.

You should not:

• ask more than one question at a time

• question a witness on matters which are outside his/her scope of knowledge

• question a witness on matters which are not relevant to the issues before the Tribunal

• feel that you have to cross-examine (eg. if other parties have asked the questions that you were going to ask the witness, you can simply tell the Chairperson that you don’t have any further questions to ask)

• continue with a particular line of questioning if the Tribunal tells you not to ask any more questions about the issue.

Following cross-examination, the party who called the witness is invited by the Chairperson to re-examine the witness.

Re-examination of the witness enables clarification of issues raised during cross-examination, not new matters. For example, if the other party’s lawyer mentioned that your witness had only conducted studies in Victorian forests, not Tasmanian forests, you could ask your witness to explain why the findings of her studies are applicable in Tasmania.

Final submissions provide an opportunity for the parties to summarise their case to the Tribunal. This is where you can argue that the evidence supports your case, or that the planning scheme should be interpreted a certain way.

The Chairperson will direct the order of final submissions. If there is insufficient time, the Chairperson may request that the final submissions be given in writing.

In most cases the Chairperson and Tribunal members inspect the site, generally without the parties.

A party may appeal against any decision of the Tribunal to the Supreme Court of Tasmania on a question of law only (not the merits of the case).

The appeal must be lodged within 28 days of the Tribunal decision and must comply with the Rules of the Supreme Court

During a Tribunal hearing, the Tribunal may, of its own initiative, or upon the request of a party to the appeal, refer a question of law to the Supreme Court for consideration (for example, about the correct interpretation of a provision of the legislation). The hearing is then suspended until the Supreme Court determines the issue.

• If you are considering a Supreme Court appeal (or if one of the other parties makes such an appeal), you are strongly advised to obtain legal advice at the earliest possible opportunity and, if appropriate, engage a lawyer to represent you.

• The Tribunal’s decision takes effect even if an appeal has been lodged in the Supreme Court. You will need to request a ‘stay order’ from the Supreme Court to prevent action on the Tribunal orders until the Supreme Court decision.

Chapters 5 and 6 describes how you can take action against someone who is breaching or likely to breach a Planning Permit or Planning Scheme or who is causing (or likely to cause) environmental harm, such as pollution. These actions are called Civil Enforcement.

Click HERE for more information about this.

In the Supreme Court and Magistrates Court, whoever loses the case is generally required to pay all or part of the winner’s costs. This is not necessarily the case with the Tribunal.

Normally, at the end of its written decisions, the Tribunal will allow each party a specified period (eg 14 days) to apply for an order for costs. If you wish to apply for costs you should do so in writing, providing detailed arguments as to what the Tribunal should take into account.

As a general rule, parties to an appeal will bear their own costs. However, if the Tribunal is satisfied that it is fair and reasonable to do so, it may order that one party pay some or all of the costs of another party.

• the result of the appeal;

• whether a party has raised frivolous or vexatious issues;

• whether a party has unreasonably prolonged the appeal or increased the costs of it;

• the relative merits of the claims made by each of the parties;

• whether a party has failed to comply with a direction or order of the Tribunal, a planning scheme or any other law;

• the nature, complexity and outcome of the appeal;

• the capacity of the parties to meet an order for costs.

Please note, unlike other planning matters, the general rule for civil enforcement action under LUPAA is that the losing party will pay the costs of the winning party.

Legal fees can be a trap for the unwary, so be on top of it from the outset.

If you engage a lawyer (for advice or to represent you in court) then it is important to establish how you will be charged, and, if possible, how much.

1. The lawyer and the client may agree in advance on the amount of professional fees which the lawyer will charge for acting on the client’s behalf for certain agreed work.
   
2. On an item-by-item basis for each item of work done by the lawyer in the handling of your case. For example, a lawyer can charge the client for telephone calls, the writing of letters, the reading of letters, and for various items of work relating to the preparation of and appearing in court proceedings.
   
3. According to the time spent working on the matter.

Important: Make sure that the method of charging to be adopted is explained to you before legal costs are incurred. This should be done by the lawyer in writing.

If you are uncertain about fees being charged or are unhappy about a legal bill, indicate your concerns to your lawyer and discuss the matter with him/her. If you are still concerned, then seek advice from the Law Society or a Community Legal Service (see contacts at end of chapter). To protect clients, there are rules for legal charging and your legal bill can be challenged in some circumstances.

If you have queries regarding the Tribunal, then try its website (LINK).

From here you can download:

• the correct form you will need to lodge any appeal.

• the Tribunal's Practice Direction

You can phone the Tribunal office for information about procedural matters - but they cannot give legal advice or advise upon the merits or prospects of success of an appeal.

To obtain a copy of the Environmental Defenders Office publication Going it Alone phone 6223 2770.

• The LIST website

• State Library System (check phone book for locations near you)

• Law Library: 28 Murray Street, Hobart 7000 Ph: 6234 2021

• Parliamentary Library: Parliament House, Hobart 7000 Ph: 6233 6253

• Morris Miller Library: University of Tasmania, Sandy Bay 7005 Ph: 6220 2101

• University Law Library: Cnr Grosvenor Crescent & Alexander Street, Sandy Bay 7005 Ph: 6220 2063

• Departmental Library (DEPHA): 134 Macquarie Street, Hobart 7000

• Department of Community Services and Health Library: Ground floor, 34 Davey Street Hobart 7000

• Resource Management and Planning Appeal Tribunal: Website
  2nd Floor TGIO Building, 144-148 Macquarie Street, Hobart 7000 Ph: 6233 6464 Fax: 6224 0825.

• Supreme Court of Tasmania (Website)

• Magistrates Courts: (Website)

• The Legal Aid Commission of Tasmania: (Website)
  123 Collins Street, Hobart 7000 Ph: 6230 0900
  16 Brisbane Street, Launceston 7250 Ph: 6331 7088
  Harris Building, 47-51 Cattley Street, Burnie 7320 Ph: 6431 5622

• Environmental Defenders Office: (Website)
  131 Macquarie Street, Hobart 7000 Ph: 6223 2770 Fax: 6223 2074
  Email: edotas@edo.org.au

• Community Legal Services: (Website)
  166 Macquarie Street, Hobart 7000 Ph: 6223 2500 Fax: 6223 2510
  68 York Street, Launceston 7250 Ph: 6334 1577 Fax: 6331 5237
  62 Stewart Street, Devonport 7310 Ph: 6424 8720 Fax: 6424 4604

• The Planning Institute of Australia (Website)
  Secretary, 19A Hunter Street, Hobart GPO Box 977 Hobart 70017000 Ph: 6231 1842
  Email: tas@planning.net.au

• Law Society of Tasmania: (Website)
  28 Murray Street, Hobart 7000 Ph: 6234 4133.
  Telephone advice line: South Ph: 6234 4133 Other areas 1800 001 180 (freecall)