Ivan Dean, Speeches Index

Wednesday 26 August 2009

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

Matter of Urgent Public Importance

Mr DEAN ( Windermere - Motion) - Madam President, I move -

That the Council do now adjourn for the purpose of discussing a matter of urgent public importance, namely the Resource Management and Planning Appeal Tribunal's intention to conduct hearings predominantly in Hobart, and that the Legislative Council calls on the Government to provide appropriate funding to allow the tribunal to conduct hearings in the area relevant to the matter being heard.

Mr PARKINSON - Point of order, Madam President. Before members proceed with this motion they should be aware that the honourable member is raising this debate but yesterday he cancelled a meeting that was scheduled for him to take place with the minister in relation to this matter. He cancelled that meeting and now wishes to raise the matter by way of interruption to government business on a government business day. I think that is inappropriate, I think members should be aware of that. This matter can be introduced by way of a notice of motion and debated in due course. That would be the appropriate course.

Madam PRESIDENT - I will allow a point of personal explanation. The issue that seems to arise is the urgency or otherwise considering a cancellation of the meeting with the minister, so perhaps the honourable member would like to make a personal explanation.

Personal Explanation

Mr DEAN - Thank you, Madam President. When this matter arose and was brought to my attention about three weeks ago, I attempted to get an urgent meeting with the minister. My office made contact, I was told that there was no available meeting time with the minister until this week and I was not able to keep a meeting with the minister when it was scheduled for this week, at a time we were sitting. I tried the best that I could do in all of the circumstances. I was prepared to travel to Hobart for that meeting, as I had indicated, to meet with the minister before the Parliament sat but I was not able to get it under any circumstances and I do not know the reason for that but it was made fairly clear what the situation was at the time. I attempted to do it, Madam President.

Madam PRESIDENT - Thank you. We have had a point of order from the Leader and a query about the urgency of this particular matter and an explanation from the member as to why that meeting did not happen yesterday. The motion allows for three members to stand in their place to support this urgency debate. In light of the information from both sides and the information that everybody has now heard, I am going to rule that if there are three members that stand we will continue. The decision thus becomes a decision on the Floor of the House and I believe this is the most appropriate process to take. We have heard both explanations so, according to the Standing Orders, I am looking for three members to rise in their place to support whether or not this is a matter of public importance which should take precedence at this particular time.

Members standing.

Madam PRESIDENT - I think that quite clearly supports the process. The member may continue.

Mr DEAN - I thank the members for their support of this matter because it very clearly is a matter of public importance and it does require this Government to either appropriately fund RMPAT, the Resource Management and Planning Appeal Tribunal, and/or give it a direction to act responsibly and sit where least costs will be incurred and with least inconvenience to the greater majority of people. The importance of the matter is because the practice adopted by RMPAT is right now, as we speak, having a detrimental impact on a hearing that was under way last week. I now understand that it has been adjourned for a decision in relation to it but it was a matter that arose at Burnie. I do not believe that the Government expected or even considered that RMPAT would control its business in the way it is currently occurring. I think the Government would be most annoyed at what is happening when all these facts are brought out. If you look at the Resource Management and Planning Appeal Tribunal Act of 1993, there is nothing in the act to require this tribunal to sit in Hobart. When you read through it, you look at the objectives of the tribunal, it becomes clear that the intention was that it would sit anywhere within the State and it would sit in the location relative to the appeal wherever possible. If that were not the case, why, under the objectives, would we have this wording? I will go through a couple of dot points that clearly set out the objectives:

1. Encourage public involvement in resource management and planning;

2. Promote the sharing of responsibility for resource management and planning between the different spheres of government, the community and industry in Tasmania.

How could public involvement be encouraged by requiring a Circular Head appeal, a Burnie appeal, and a Strahan appeal to be heard in Hobart? In fact to hold appeals from these locations in Hobart discourages public involvement. That is why I bring this important motion before the House today.

It is said that some witnesses will not be able to attend. That appeal has now been partly heard, and I am not sure whether all witnesses were able to attend in Hobart, but that was the case prior to the appeal actually commencing. Accordingly, how does this autocracy promote the sharing of resource management and planning between the different spheres of government, the community and industry in Tasmania? They have been left out.

It is a bureaucracy that has gone mad. It is the case of an obviously underfunded government department - and in a moment I will read a comment that it has made about that underfunding - cost-shifting to those people who have a lawful right to appeal against a development that they genuinely believe to be ill-considered, and also cost-shifting to local government. I am not going to refer to it too much, but I continually wave this document around, a document signed by the premiers of all States throughout Australia in April 2006, saying that there would be no cost-shifting to local government. It is entitled 'The inter-governmental agreement establishing principles guiding inter-governmental relations on local government matters'. I am not going to quote from it, I simply want to identify the document. Would RMPAT be aware of this document?

Mr Martin - You would not think so the way it acts.

Mr DEAN - Absolutely. I doubt very much that it is aware of the document. If it is I would like to know. What the Government can say in this case is that it is not cost-shifting, it is the tribunal.

That might be the case but where a government is underfunding an organisation it would know very well that extreme measures would need to be taken by that entity, including centralising hearings in Hobart where it is domiciled, to give it the capacity to operate. What it is saying is that it does not have the capacity to operate outside Hobart, except in very extreme cases. The Government is aware of what is happening as this matter was canvassed by this House earlier this year, Madam President. Back in March, following a decision taken by RMPAT to centralise hearings in Hobart except for extraordinary circumstances, it was visualised then that that move would be to the detriment of the rest of the State.

Ms Forrest - Has it identified what extraordinary circumstances would constitute that?

Mr DEAN - That is interesting, and a little later I will give some facts as to where an attempt was made to move the matter that has brought this to our attention to Hobart. I would have thought they were absolutely extraordinary circumstances, but the tribunal said that it was not.

Ms Forrest - It has not identified the extraordinary circumstances?

Mr DEAN - It has not identified what 'extraordinary circumstances' may be, to my knowledge.

Mr Hall - It was actually February that the matter was first raised.

Mr DEAN - It was, and I will refer to that in just a moment. This is some of the discussion, Madam President, that took place on 11 March 2009 in response to the Premier's state of the State address. I refer to Hansard to identify some of the issues that were raised. I will start part-way through an address that I was making in this House on 11 March 2009:

'Mr DEAN - … I just take that from headlines in the paper: "Tribunal planned for hearings slammed". I am not surprised that it was slammed. At the beginning of this, and I quote from the top of this report in the Examiner on 19 February:

"If the Resource Management And Planning Appeal Tribunal was to hold most of its hearings in Hobart, Northern Tasmania would be greatly disadvantaged, the Launceston City Council said yesterday."

I just wonder how they can make a decision like that without even consulting the partners and the people that would be most involved in those hearings. The people most involved in those hearings are the councils, local government and the developers.'

There are a lot of other comments in Hansard of that date relevant to this issue. When all of those issues were being raised the Leader for the Government made this comment:

'Mr Parkinson - I certainly did not get the impression that RMPAT was going to cancel or not have regional hearings. I had the impression that what they were doing was looking for efficiencies, not to cut them out altogether.

Mr DEAN - Probably not cut them out totally but they made it very clear that their position was to hold them in Hobart.

Mr Parkinson - Wherever possible, I suppose.'

So there was quite a discussion on this matter back then and, as the member for Western Tiers has mentioned, he and other members also made comment about the decision taken by RMPAT in the circumstances.

Madam President, this is a disgrace. The cost that will now be imposed on the other parties will be far greater than any cost incurred by the tribunal to sit and hear this case in Burnie. This is the case which has been brought to our attention and which should have been heard in Burnie. There is no doubt about that. If they had given a handout to RMPAT to travel to Burnie the people who were appealing against the development would have been much better off. There were solicitors, doctors and members of the public involved. They would all have been better off by giving RMPAT some money to travel and hear the case in Burnie.

Mr Parkinson - So they are appealing against the development, are they?

Mr DEAN - They were appealing against the development.

Ms Forrest - I can hear the government argument coming on here that it did a site visit at Burnie and took some evidence.

Mr DEAN - I understand that it travelled to Burnie, for a viewing of the site and some evidence was taken. The tribunal then adjourned to Hobart for another two-and-a-half days.

Ms Forrest - Many of the people that gave evidence in Hobart had to come from Burnie.

Mr DEAN - That is right.

Mr Hall - Which is a cost including the legal counsel, accommodation and everything else involved.

Mr DEAN - I am going to read some of the letter received from Mr Shaun McElwaine who is a prominent barrister and solicitor domiciled in Launceston. He puts this into perspective in outlining in what, in my view, is a disgraceful decision made without due regard to any other person or organisation. Only the cost to RMPAT was taken into account; the fact that it would cost others probably three to four times as much was not a consideration. I do not intend to read the entire comments of the letter. I simply want to read some paragraphs which I think adequately explain the position. It was written on 12 August 2009 and is headed 'Left Out Again!':

'Once again, residents of North and North Western Tasmania have been disadvantaged by decisions taken by people who reside in Hobart.

This time it's a decision by the Resource Management and Planning Appeal Tribunal (RMPAT) which, in substance, is that it will no longer sit to hear cases outside Hobart. And it does not matter that the subject matter of the appeal concerns development in Launceston, Burnie or for that matter Strahan.

I attach to this an email from the Registrar of the RMPAT which is dated 11 February 2009. You will observe that it attaches a Tribunal circular titled: "Notification of Variation to Listing Procedures". The document is self explanatory ...

I, and a number of the other parties to the appeal, have attempted to explain to the RMPAT why this will substantially inconvenience a large number of people. What is particularly troubling is that three of the objecting residents are general practitioners based in Burnie and they simply cannot afford the time to travel to Hobart for the hearing of any portion of the appeal. And, add to this, the fact that the Burnie City Council must resource the hearing of the appeal in Hobart, there are two Burnie based lawyers engaged (apart from myself based in Launceston) and a number of the witnesses will be from Burnie as well.

Despite various representations to the RMPAT the Registrar provided the following advice to the parties in these terms in an email dated 5 August 2009:

There is a practice direction dealing with the venue for hearings relating to developments away from Hobart. That direction provides that ordinarily all matters will be heard in Hobart. Where a site inspection is required the Tribunal may, at its own discretion, determine to have the first day of a hearing to be at or near the location the subject of the development application, but thereafter the hearing will continue at Hobart.

That practice direction reflects the imperative to reduce the costs associated with the provision of services. The direction may be departed from in exceptional circumstances.'

What are exceptional circumstances I do not know because if this was not exceptional they are never going to meet that criteria.

The letter continues:

'When an application is made for a departure from the direction the appropriate course is to weigh those submissions against the budgetary consideration which underpins the direction.

In this case a number of submissions have been made to the Tribunal seeking a departure from the direction and requesting the entire hearing be conducted in Burnie. The proponent has opposed a change to the arrangements. Issues of convenience and cost are relied upon.

All of those submissions have been carefully read and considered.

It is observed that the direction will always give rise to inconvenience to those parties away from Hobart. Mere inconvenience is not a basis for departing from the direction.'

Ms Forrest - Mere inconvenience?

Mr DEAN -

'Were it so, the direction would have no scope within which to operate and would be rendered futile.

Nor, save in the most exceptional circumstances will cost, or the opportunity cost associated with being away from a place, be relevant. Compliance with the direction must cause "unreasonable or unjust outcomes".

It is only when attendance at the place of the proposed development for the duration of the hearing is essential to the performance of the functions vested in the Tribunal, or that adherence to the direction will visit unreasonable or unjust outcomes upon the parties, that the direction should be departed from.

This is not such a case.

Accordingly, as previously advised, the first day of the hearing will occur in Burnie but thereafter the hearing will adjourn to Hobart.'

That is on the letter that was received back by Shaun McElwaine from RMPAT.

Ms Forrest - Through you, Madam President - did they at all explain what would be considered unreasonable or unjust? Did they provide any grounds for that?

Mr DEAN - No explanation has been given of that. RMPAT might be able to do that or the Leader might be able to give some understanding of what is meant by that.

I will quote a couple of paragraphs from this letter from Mr McElwaine:

'I do not want to raise, for obvious reasons, the merits of the dispute as properly the RMPAT will undertake its hearing function according to law. But this ruling puts the cost of the RMPAT first and fails to recognize that the cost burden is shifted to the parties. This is not the way to deliver government services.

I spoke with the Registrar of the RMPAT, Mr Bryan, on 7 August 2009. He explained to me that the Tribunal "simply does not have enough money" to perform its statutory functions according to law.'

That is a pretty damning statement.

Mr Martin - It could be a good model. They could save some money by closing the courts next.

Ms Forrest - Just have the court in Hobart and everyone can travel down.

Mr Parkinson - In the case of the family court that has been the practice for a long, long time.

Mr DEAN - I fail to understand it. I will continue on with the comments of Mr McElwaine:

'I gained the impression that it is presently chronically underfunded and may well not be able to operate as an effective tribunal unless something is urgently done.'

There are other comments made in that letter from Mr McElwaine and I am not going to refer to the further comments but that document is available, some members have it, and perhaps, Madam President, I should table a copy of that document. I will give consideration to that in a moment.

There are some other documents that I will refer to which are pertinent to this case. There is a letter that I think most of the members would have received some time ago from the General Manager of the Launceston City Council. This document was dated 16 February 2009 and I quote:

'On behalf of Launceston City Council I must protest in the strongest terms to this unilateral change in procedures. I cannot accept that this is the most effective response to operating budget cuts that the Tribunal can implement. It is nothing more than cost shifting to Councils and the development community. It will result in the denial of natural justice for those who cannot or will not travel out of their home region to defend their basic rights of appeal. The net community cost will far outweigh the marginal savings to the Department resulting from this change.'

There are other comments in that letter again, Madam President, but I shall not refer to them.

I have a letter from Mr Ian Abernethy written only a week ago in relation to this item and I take a couple of very short quotes from that:

'When the matter was first brought to our attention we lobbied Justice to reverse the decision on the grounds of equity and access to services for all. Those comments were quickly counter claimed by Justice that they have to make budget cuts and this will save them a few thousand for each hearing (think it averaged around $3k).

In terms of impact on Council - yes it is an increase in cost and a risk in terms of OH and S with people travelling. The greatest inconvenience would be to the public who now have to take at least one day off work (maybe more if it is an early hearing or a multiple day hearing) and the cost of travel. The new arrangements favour those in the south of the State and create an equity issue for those in other parts of the State.'

The other one I wanted to comment on is a release on 13 February 2009 in the Examiner and I take it that these statements are correct because I never saw any retraction in the paper. These are comments made by the Premier and this is what I raised earlier, that I think that the Government will be upset and annoyed with what is happening because it does not accord with the comments and the statements made by the Premier back on that date. I will take a couple of quotes from this Examiner report:

'Premier David Bartlett maintains that budget cuts to the Resource Management and Planning Appeals Tribunal will not prevent hearings from happening outside of Hobart …

But Mr Bartlett said yesterday that the tribunal would still consider holding hearings elsewhere if it was not reasonable to hear the matter in Hobart.'

He uses the words 'reasonable' and 'not reasonable'.

Mr Wing - Which would apply to most cases.

Mr DEAN - I would have thought almost every case.

Ms Forrest - Reasonable for who?

Mr DEAN - Yes, that is right. Then the further comment made was from Mr Bartlett - and this is a direct quote:

' "Where there is a substantial body of work for RMPAT to do, they will do it outside of Hobart", Mr Bartlett said.'

Then another direct quote was:

'It doesn't mean that in any way shape or form this Government is Hobart-centric.'

Mr Hall - Something must have initiated that.

Mr DEAN - It was as a result of our discussions, I think.

Mr Hall - No, you've got to read the rest of it. Who else is named in there?

Members laughing.

Mr DEAN - There is a mention of another member in here, Madam President, and it simply says:

'Western Tiers MLC Greg Hall has branded the move "penny pinching gone mad" and will be moving a motion when Parliament resumes to try and overturn the decision.'

I happened to overlook that point and I am sorry.

Mr Finch - Never let a chance pass you by.

[11.30 a.m.]
Mr DEAN - Madam President, I am purely using this case as an example to demonstrate just what is currently happening out there as we speak with these hearings, and simply because of a shortfall in the Budget. That is what RMPAT are saying, that is the only reason. It is too late for the case referred to; it is under way, as I said, and is now awaiting a decision.

We should not sit back and allow this to happen. If there were some other good reasons given you might consider it but not for the reason identified - insufficient funds. There is sufficient cost incurred in having an appeal relating to a property in Burnie or Launceston heard in Hobart. There is a significant increase in cost for all of those people to have to travel to Hobart and find overnight accommodation. In this instance the doctors were complaining bitterly because of a need to have other doctors come into their practices. There were a lot of issues but I am not going to go into those.

Ms Forrest - They cannot get locums for Scottsdale; how are they going to get locums in Burnie?

Mr DEAN - I honestly do not know and I would suspect that a person who has a legitimate appeal right would be thwarted from that process simply because of the inconvenience.

Ms Forrest - This is a time of high demand for GPs.

Mr DEAN - Yes, that is right.

Mr Hall - Because tribunal hearings are by nature adversarial, legal counsel is often needed and therefore you have the additional costs of bringing those legal counsel down there, their accommodation costs and so on.

Ms Forrest - They do not come cheaply, do they?

Mr Hall - No, we know.

Mr DEAN - Madam President, I am not going to take it any further and I will be interested to see whether other members can make a contribution to this but in my opinion it has to change. The Government has to stand up here and be counted, they have to provide RMPAT with reasonable funding to carry out their function in the proper manner.

Mr Parkinson - Who should pay?

Mr DEAN - RMPAT is the tribunal set up by the Government to look at development applications and so on.

Mr Parkinson - I heard somebody say the taxpayer should pay.

Mr DEAN - Somebody; well, I would suspect that that is probably right.

Ms Forrest - That is who is paying now.

Mr DEAN - But something has to happen. It is interfering with and impacting on development applications - very important issues.

Mr Martin - And people's rights.

Mr DEAN - I honestly cannot understand it. I was absolutely amazed to receive that letter from Mr McElwaine. I have talked to him and other witnesses but I do not have the right to identify them by name. This is completely unsatisfactory and something must happen.

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