Council’s forestry decision disputed

Press, 19 July 1988, Page 18

Council’s forestry decision disputed

The hearing of an appeal by Nelson Pine Forest, Ltd, against the Waimea County Council because of a decision of the Planning Tribunal which upheld planning controls on the removal of native forest on private land in the county began before Mr Justice Holland in the High Court yesterday.

The case is expected to take at least three days.

In its District Scheme review, the Waimea County proposed to make the clearance of native forests by the owners of land on which it stands a conditional use.

The County Council in 1986 upheld an objection by the Native Forests Action Council to the review which then allowed owners to clear-fell native bush on their properties as of right.

That decision was upheld by the Planning Tribunal after an objection by nelson Pine Forest, Ltd, was heard.

Messrs John Fogarty and Jon Jackson appear for Nelson Pine Forest; Mr Warwick Heal for the Waimea County Council; Messrs Peter Salmon, Q.C., and John Maassen for the Native Forests Action Council; and Mr Keith Robinson for the Minister of Conservation.

In its notice of appeal, the forestry company says that the tribunal was erroneous in a number of points of law. The amendments to the proposed scheme went further than the Native Forests Action Council objection, which had not suggested any

criteria. The Court is asked to decide whether it was a bona fide or consistent use of the Planning Act to classify logging as a conditional use, given the object of the scheme which was to control development with a slight bias towards resource management and not to impose restrictions amounting to preservation. The Court has also been asked to decide whether the act could restrain owners of forest from felling their trees, unless the logging was part of development which was economic and outweighed the advantage of retention of the native forest without the owner being entitled to compensation.

The tribunal decision pursued a policy inconsistent with the object of the scheme, the statement of appeal said. In his opening, Mr Forgarty said that the decision reinforced what was clearly the attitude of the tribunal that the company was making a wasteful use of a limited resource. The council had decided not to expose itself to an argument for compensation to the owner of privately owned timber. The Planning Tribunal had accepted and adopted that position. It was asserted by the appeal that given the limited object of the scheme it was not a bona fide use of the power in section 36 to classify logging as a conditional use.

As a matter of reasonableness, that had been

clearly accepted by the Planning Tribunal in other cases which were quoted by Mr Fogarty. All statutory powers had to be exercised for their proper purpose. That was a fundamental principle of administrate law. “The courts will not interpret the Town and Country Planning Act powers as enabling the councils and tribunals to intentionally or unintentionally declare a limited object and set out to achieve a more radical one,” Mr Fogarty said. “We are dealing with native forests in private ownership and a planning procedure which is designed to control the use of that resource without exposing local authorities to claims for compensation. The community reflected by central and local government has for one reason or another elected not to resume this land into public ownership,” said Mr Fogarty. The Planning Tribunal did not come to grips with the implications of conservation forestry. If it had, that exercise would have brought out into the open the proposition, “Does the Town and Country Planning Act enable a local authority to impose conservation forestry on privately owned forest?” “Somehow the tribunal did not meet this obvious issue and come to grips with it. We are left with a much more modest restraint ‘with a slight bias towards resource management’,” Mr Fogarty said.