Private timber reserve (Tasmania)

Legal definition

Private Timber Reserve is land that has been declared as a Private Timber Reserve under Section 11 of the Forests Practices Act 1985. The Act was passed by both Houses of the Tasmanian Government in 1985, and received Royal Assent 25 May 1985, with a commencement date of the 2 November 1987 for Part II - Private Timber Reserves.

Land declared as a Private Timber Reserve is "used only for establishing forests, or growing or harvesting timber in accordance with the Forest Practices Code and such other activities which the Authority considers to be compatible with establishing forests, or growing or harvesting timber". The activities considered to be compatible are; apiary sites, education and scientific purposes, grazing under well established trees, hunting, nature based recreation.

The declaration of the Private Timber Reserve is registered on the land title as per Section 15 of the Forests Practices Act 1985. The declaration of the Private Timber Reserve remains with the title(s), despite changes in ownership, or until an application to revoke is submitted by the landowner and approved. A landowner can make an application to revoke all or part of the area declared as a Private Timber Reserve, at any time.

A Private Timber Reserve is an area of land, used or intended to be used, for growing timber. It could be an area of native forest, plantation (exotic and native species) or land intended to be used to grow timber. The land has to be capable of growing timber. The minimum area that can be declared a Private Timber Reserve is five hectares.

Timber means trunks and branches of trees, whether standing or not, and all wood. This definition includes the full range of wood products; all categories of saw logs, veneer logs, pulpwood and firewood.

Extent

There are 1,114,883 hectares of private land in Tasmania covered by forest or plantation (857,751 hectares of native forests and 257,132 hectares of plantation). As June 2014, 449,444 hectares were declared as Private Timber Reserve. This represents 40% of the area of private land covered native forests or plantation. The estimates for the area of private land covered by native forests or plantation, and areas declared as Private Timber Reserve may include areas not covered by trees. Such areas include; rocky areas, glades, firebreaks, roads, and swamps, and are found within boundaries of the forest or plantation owned by individual land owners. All estimates of forests area, and area of land declared as Private Timber Reserve, use a number of methodologies to calculate area.

The State of Tasmania has 3.706 million hectares of forests (3.362 million hectares of native forests, 0.331 million hectares of plantation and 0.33 million hectares of other forest) covering 54% of the State.

There are 27.1 million hectares of private forest in Australia (16% of forest area privately owned). Only 13.9% of the World's forest is privately owned.

Procedures

Local planning schemes created under the Land Use Planning and Approval Act 1993 can not be used to zone an area, declared as a Private Timber Reserve, to make timber growing a prohibited activity or place conditions on the activity. On land declared a Private Timber Reserve, local government authority development applications for operations, subject to an approved Forest Practices Plan, are not required.

Consultation is still required under the Forest Practices Code with the local government authority when Forest Practices Plan are being prepared.

Applications

The process to declare an area a Private Timber Reserve is set out in the Part II of the Forest Practices Act 1985.

The landowner completes an application form, and informs anyone who has an interest in the land or the trees as per Section 5 of the application. Landowners can declare any part or all their land a Private Timber Reserves.

The application is in two parts, Part A to be completed by the Applicant (landowner) and Part B, completed by a person authorized by the Forests Practices Authority Board. Part B of the Application requires details on vegetation cover, and on any natural or cultural values on the area. A Private Timber Reserve can only be declared over an area where forestry activity can be undertaken in accordance with the Forest Practices Code.

Private Forests Tasmania assesses the application and makes a recommendation to the Board of the Forest Practices Authority that the Private Timber Reserve be granted, or not. Private Forest Tasmania has a delegation under the Forest Practices Act 1985 – Part II PRIVATE TIMBER RESERVES, from the Board of the Forest Practices Authority to accept, assess and make recommendations on applications to declare and revoke land as private timber reserve

The declaration of the land as a Private Timber Reserve is registered on the land title, and can be declared over a whole title or over part of a title.

Application fees apply. Section 5 (2)(d) Forests Practices Act 1985 requires that, "an application to declare land as a private timber reserve must be accompanied by a fee". Originally the cost per application was AUD$100 (prior to 1999) with a fee of AUD$350 introduced in 1999-2000. The fee increase followed an instruction from the Government that the fee should cover the costs of processing the application.

The application fee is subject to annual increase under the Fee Units Act 1997. An application to declare land as a Private Timber Reserve attracts 350 fee units. In 2015-16, a fee unit value was set at AUD$1.51 per fee unit. Currently the fee is AUD$535.50 (July 2016) plus the cost of registering the declaration on the land title.

The Crown Solicitor charges a fee to register the Private Timber Reserve on the land title, AUD$104.50 (including GST) if a Private Timber Reserve covers only full titles, and an additional AUD$104.50 (including GST) if a Private Timber Reserve covers part of the land title listed in the application as well.

Forest practices plans

Section 18(2)b of the Forest Practices Act 1985 states that a forests practices plan is to " contain, in the case of a private timber reserve, or where the owner of the land referred to in the plan wishes to restock the land with trees, specifications in connection with the restocking of the land with tree".

A forest practices plan can not be certified for an area declared as a Private Timber Reserve, unless the reforestation section of the plan contains restocking requirements.

Land tax

Under the Land Tax Act 2000 landowners in Tasmania are subject to annual land tax, based on land value.

If the land meets the definition of Primary Production Land or PPL classification applies to land as at 1 July in any year, then the owner of that land is not required to pay land tax for that land in that financial year. Land declared as a Private Timber Reserve under section 11 of the Forest Practices Act 1985 and advertised in the Tasmanian Government Gazette is eligible for PPL classification and no land tax is payable.

Rationale

The ‘Report of the Board of Inquiry into Private Forestry Development in Tasmania 1977’ recommended that; "That statutory provisions be made for a ‘dedication’ scheme in relation to private land based broadly on the British scheme which has operated since 1947 and that direct financial assistance be provided by the Government within the framework of the scheme."

The Report authors recognized the need, and potential return to the industry and State, if assistance was provided to private forest owners. Such assistance was proposed to be provided to owner who had dedicated their land for forestry. Like the British scheme the aim was to encourage the proper management of native forests.

The Board also discussed the illogical distinctions drawn by finance companies between moneys available for clearing of forests and agriculture and for forestry. Investment funds for forestry were difficult to obtain. In summary, the need to secure investment in private forestry was recognized and the dedication of a private timber reserve was a key element to securing that investment, either from the government or the private sector.

Forest Practices Act (1985)

When the Bill for the Forest Practices Act was introduced into the Tasmanian Parliament in April 1985, the Minister for Forests, Robin Gray, referenced the Private Forestry Council recommendation to create the "concept of private timber reserve".

1962 amendments

On the introduction of the Forest Practices Act 1985 amendments were made to sections 756 and 759 of the now repealed.

In the Local Government Act 1962 Section 756, provided local government with the power to terminate certain non-conforming uses under a planning scheme. If a use was terminated a landowner had to seek approval to use their land, even if the use of the land use had not changed. The Forest Practices Act 1985 amendment meant land declared as Private Timber Reserve was one land use where the power to terminate non-conforming uses did not apply. The other uses, where the power to terminate non-conforming uses does not apply, were; the site of a dwelling house or land used for agriculture, horticulture, viticulture, pasture, or similar purpose.

The 1985 amendment of Section 758 of the Local Government Act 1962, provided for the land declared as Private Timber Reserve to be treated as a lawful use of land. This meant that land used for forestry had same status as land used for agriculture.

These amendments were deemed necessary because the use of the land for forestry purposes is not obvious. It is relatively simple to recognize land used for housing and agriculture, and hence continuing use, because the land contains buildings or crops or livestock. The use of an area of forest, used for forestry purposes, is infrequent and the period between any activity may span decades.

1993 amendments

There was a need to ensure that ‘continuing use’ be recognised was also addressed in the new planning Act Land Use Planning and Approvals Act 1993 introduced in 1993.

Under the Land Use Planning and Approvals Act 1993 on land: where use has stopped for 2 years or more periods; or which has stopped for 2 or more periods which together total 2 years in any period of 3 years; or in the case of a use which is seasonal in nature, if the use does not take place for 2 years in succession; is subject to the operation of a planning scheme or interim order.

Forestry has a pattern of land use where there is activity when planted or regenerated occurs, and then years later when thinning or harvesting occurs. It is often not apparent that in the period between planting/regeneration and any harvest, the land is being used to grow timber. The direct reference to Private Timber Reserves was necessary otherwise the pattern of use of land for forestry, could have resulted in the land being subject to planning schemes and interim orders, without the fact the land was being used for forestry, and had been for decades, being recognized.

Land Use Planning and Approvals Act 1993 requires local government authorities to create planning schemes and zone land for uses. Areas of land were zoned for forestry use as a permitted use. Other areas of land where forestry occurred, but not zoned with forestry as a permitted used, required a development permit from the local government authority. These development permits do not provide any certainty that the land owner would be able to harvest the wood grown. Permits are usually issued for native forest harvest and regeneration, or to establish a plantation, but did not explicitly create the right to harvest at a latter date.

In Section 20 (7) of the Land Use Planning and Approvals Act 1993;

Section 20(7) also applies to mineral exploration, fishing and marine farming operations. Forestry, mineral exploration, fishing and marine farming are not subject to the provisions of planning schemes.

It is possible for a landowner to apply for a Private Timber Reserve, where under a local planning scheme forestry is a use permitted or where a permit is required. A Private Timber Reserves cannot be declared over an area where forestry is prohibited.

Forest Practices Tribunal

Under Section 9 of the Forests Practices Act 1985 an appeal can be made to the Forest Practices Tribunal against a refusal to grant, or the granting of a Private Timber Reserve. Twenty eight appeals were lodged with the Tribunal, 7 were upheld and 21 dismissed.

In two Appeals, the Appellant offered no proof to the Tribunal hearing (TASFPT 3 1997 and TASFPT 4 1997). In five other appeals (TASFPT 6 1997, TASFPT 7 1997 TASFPT 9 1997, TASFPT 3 1999, TASFPT 1 2004) the Forest Practices Board was the Respondent to an appeal by a landowner whose application for a Private Timber Reserve was refused.

The Meander Valley Council appealed to the Tribunal on nine occasions, and was successful on only one appeal (TASPFT 10 1997). The nine appeals include two appeals where no proof was provided to the Tribunal. In these two appeals the Council appealed to the Tribunal but provided no proof or submission to the Tribunal to support their appeal.

An additional three Tribunal hearings were held to consider costs. In two cases, the Tribunal directed each party pay their own cost and in one case costs were awarded to the Respondents.

List of challenges

There have been a number of challenges to applications to declare areas as Private Timber Reserve lodged in the Tasmanian Supreme Court.

Justice Crawford decision (1998)

An application to declare an area a Private Timber Reserve was received in June 1997, and assessed as per the requirements the Act Section 8 (d) of the Forests Practices Act 1985 which sets the grounds for granting or refusing and application. The local government authority, the Meander Valley Council lodged an objection to the application as provided in the Section 7 of the Act. Their ground for the objection was the that forestry "would not be in the public interest" as allowed under Section 8 of the Act.

The Board of the Forest Practices Authority approved the application and the Meander Valley Council appealed the decision to the Forest Practices Tribunal under Section 9 of the Act. The Tribunal held a hearing on the 13th October 1997, with the decision to dismiss the appeal delivered on the 10 November 1997.

On the 8 November 1997, the Meander Valley Planning Scheme 1995 came into effect and forestry become a prohibited activity on the land covered by the application. This meant on the 8 November 1997, forestry was prohibited on the land and the decision of the Tribunal of the 10 November was void. Under Section 8 (2) (d) of the Act refusal of an application is required if...

The planning scheme declaration on the 8 November 1997 meant owner of the land was prohibited from establishing forests, or growing or harvesting timber, on the land.

In early February 1998, the Meander Valley Council registered an appeal against the decision of the Forest Practices Tribunal with the Tasmanian Supreme Court. The Crown did not contest the appeal as establishing forests, or growing or harvesting timber was prohibited on the land under the local planning scheme at the 8 November 1997, two days before the Tribunal decision.

Justice Crawford on the 16th of March 1998 (M1 of 1998) concluded applications must be refused where forestry is a discretionary use and no permit has been issued, in addition to situations where forestry is prohibited use. The effect of this conclusion was that areas of land declared a Private Timber Reserve, where a permit was required to undertake forestry under a local planning scheme, "may now be held to be legally invalid".

Legal challenge

In June 1997, the Tasmanian Conservation Trust sought legal advice as to the implications of Justice Crawford's judgement. Their advice maintained that where a permit for forestry use is required under a planning scheme, and has not been obtained before the land was declared a Private Timber Reserve, the declaration of the private timber reserve was illegal.

The Board of Forest Practices Authority provided a brief statement on the issue for affected people. Private Forests Tasmania sent a letters to approximately 540 holders of Private Timber Reserves that may be affected, and all 149 current applicants (as at June 1997). All local government authorities were also informed of the position.

In July 1997, the Government announced it would pass legislation to validate private timber reserves (media release 15 July). The Opposition also expressed support for the proposal to validate private timber reserves.

The Tasmanian Conservation Trust applied to the Resource Management and Planning Appeal Tribunal on 8 September 1997, seeking to have all Private Timber Reserves declared after the introduction of the Land Use Planning and Approval Act 1993 to be revoked. Parties to the application were the Forest Practices Authority and Private Forests Tasmania, as respondents. A hearing was held 18 September 1997, when it was argued, and accepted, that land owners whose land had been declared as private timber reserve, post the introduction of the Land Use Planning and Approval Act 1993, should be informed of the proceedings. Private Forests Tasmania identified the land owners who could be affected by the Tribunal's decisions. A total of 980 applications, covering some 320,000 hectares, have been accepted to date (1997); with some 540 applications, involving 383 landowners, affected by any decision to revoke Private Timber Reserves approved after the introduction of Land Use Planning and Approvals Act 1993.

If successful, the Trust's application could have resulted in the majority all Private Timber Reserves, approved after the introduction of Land Use Planning and Approvals Act 1993 (9 November 1993) to be revoked. Some landowners may have had local government approval to undertake forestry activities prior to applying for a Private Timber Reserve, and hence would not be revoked. Of immediate concern was that Timber Harvesting Plans for areas declared as Private Timber Reserves, may be invalid, and may need local government planning permission. Any harvesting underway on Private Timber Reserves at the time, without planning permission, would have in breach of the provisions of the Land Use Planning and Approval Act 1993.

Legislative response

An amendment was made to Forest Practices Act 1985 whereby a requirement to obtain a permit to undertake forestry activities under the Land Use Planning and Approvals Act 1993 was deemed not to be a prohibition under Section 8 2(A) of the Forest Practices Act 1985.

In June 1999, Royal assent was given to the Forest Practices (Private Timber Reserves Validation) Act 1999. This Act validated Private Timber Reserves already declared.

Forests Practices Tribunal (2006)

An appeal against the approval of a Private Timber Applications from EE & IC Porter resulted in a hearing that heard evidence for 17 days. There were six appellants Meander Valley Council, J & M Hawkes, N Hoofman, PA Elkin, J Lies, J King; The appellants were all "prescribed persons" under the Forest Practices Act Section 7(4) with three respondents; EE & IC Porter (landowners who submitted the application, and the Forests Practices Authority who approved the application. Other parties provided submissions to the appeal: Private Forests Tasmania, the Authority accepting and assessing the application; Gunns Ltd, a forestry company purchasing the wood from the landowner; The Environment Association, a local conservation group and Mr Lockhart, a local resident.

The Tribunal received 12 submissions in writing. These submissions often included expert advice and opinion from other parties. Each submission was then reviewed by all Appellants and Respondents, and submissions in reply lodged. In some cases, additional expert advice was included. During the hearing each party was then able cross examine witness, in particular expert witnesses, giving evidence. As result, in addition to the authors of the submissions from the Appellants and Respondents (12 persons), 17 persons were subject to cross examination.

Findings

The Tribunal dismissed the appeal and affirmed the decision of the Forest Practices Authority to approve the application.

During the hearing the appellants sought to have the decision of the Forest Practice Authority quashed because the application form for the Private Timber Reserve was not complete. The Tribunal found this did not invalidate the application. The application process was changed by the Private Forests Tasmania, in conjunction with Forests Practices Authority, in 2006, and a two part application form was authorized.

This hearing is notable due to its length, and the extensive cross examination of witnesses. The Tribunal found:

Appeal

An appellant, Mr King appealed the decision of the Tribunal to the Supreme Court pursuant to the Judicial Review Act 2000. Justice Blow Alan Blow concluded that "No error of law on the part of the Tribunal", and dismissed the appeal.

Mr King then lodged and appeal with the Supreme Court of Tasmania - Full Court, where Justices Underwood, Slicer and Tennent, all dismissed his appeal.