Meander ratepayer group wins in the Supreme Court

By Sharon Webb

A SUPREME Court decision has the potential to overturn Meander Valley Council’s allocation of a school property to a drug rehabilitation religious group.

Meander Area Residents and Ratepayers Association had appealed the council’s lease of the former Meander Primary School for a peppercorn rent to Teen Challenge in Tasmania’s Planning Appeals Tribunal – on the one ground of bushfire protection.

The tribunal rejected the appeal ultra vires, essentially saying a decision was beyond the delegated powers of the legislation.

MARRA appealed to the Supreme Court and in his June decision, Justice Blow sent the decision back to the tribunal to reconsider.

Justice Blow also directed that the tribunal reconsidering MARRA’s appeal must be constituted by members who did not sit on the original hearing. That direction may drag out the matter for a long time because of the limited number of tribunal members.

MARRA president Bodhi McSweeney said their members were pleased with the determination.

‘We have always been concerned about the lack of due process and community consultation in the granting of the lease to Teen Challenge Tasmania by the Meander Valley Council,’ she said.

‘It’s the wrong place for any drug rehabilitation centre and we have serious concerns about the nature of the program and its directors.’

Meander Valley Council’s only comment on Justice Blow’s decision was that it was ‘waiting for advice on the decision and would consider its position in due course’.

While the Council would not comment on the cost to date of legal action to defend its decision on the school, it is estimated at more than $250,000.

The ground on which MARRA appealed to the tribunal was that the proposal did not comply with standards in the Meander Valley Interim Planning Scheme 2013 relating to bushfire-prone areas.

According to Justice Blow’s, the proposed rehabilitation centre is classed as ‘hospital services’, a ‘vulnerable use’ under the Bushfire Prone Areas Code.

Therefore it must comply with the code’s standards for vulnerable use.

Meander Valley Council decided that the centre complied and granted a permit.

But MARRA appealed to the tribunal on grounds of the code’s statement that ‘only in exceptional circumstances should vulnerable uses be located on land which is within a bushfire prone area’.

Under the code, when a vulnerable use is proposed to be located in a bushfire prone area it must be demonstrated that:

• there is an overriding benefit to the community

• there is no suitable alternative lower risk site and

• the bushfire risk can be managed to an acceptable level having regard to any advice from the Tasmania Fire Service.

Justice Blow said witnesses gave evidence at the tribunal on whether there was ‘no suitable alternative lower risk site’ and until the final day of the hearing there was no suggestion any of the three provisions was ultra vires.

‘That changed. It appears that counsel for the council had a “light bulb moment” on the morning of the fourth day of the hearing. After the hearing had resumed, he advised his opponent that he would contend that the “no suitable alternative lower risk site element” was ultra vires,’ Justice Blow said.

That move by Meander Valley Council’s legal representative, Shaun McElwaine, led to the
tribunal declaring the matter ultra vires.

‘This appeal (by MARRA) must succeed because of the tribunal’s error in concluding that performance criterion was ultra vires,’ Justice Blow said.

Note that in the Supreme Court, the name of the case is Timber World Pty Ltd vs Meander Valley Council as Timber World is funding MARRA’s legal case while MARRA raises funds to repay the money.