Lake Malbena tourism proposal fails to pass Supreme Court full bench on appeal

The matter will be sent back to the Resource Management and Planning Appeal Tribunal to consider against the Tasmanian Wilderness World Heritage Area reserve management plan as a result.

It comes over 30 months since Central Highlands Council rejected the proposal from Daniel Hackett, of Wild Drake, to fly high-paying visitors by helicopter from Derwent Bridge to an area near Lake Malbena, with a standing camp to be added on Halls Island.

The proposal was approved in RMPAT in 2019, then unsuccessfully appealed in the Supreme Court in 2020 before it was appealed to the full bench.

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In a majority judgment, Chief Justice Alan Blow and Justice David Porter ruled in favour of the appeal, while Justice Michael Brett ruled against.

In his reasons, Justice Porter said the matter came down to whether the proposal included "only" standing camps under the reserve management plan, but RMPAT had made no findings on this.

"The reserve management plan allows the activity of visitor accommodation if it is not new private (non-commercial) infrastructure, and the accommodation consists only of standing camps," he wrote.

"The issue of whether the proposal consists only of 'standing camps' was the subject of evidence and argument before the Tribunal, but no findings were made.

"Whether the proposed use meets the acceptable solution depends on those findings of fact. If it does not, the inquiry goes no further."

But Justice Brett believed such a use complied with the reserve management plan.

"It is abundantly clear from this exercise that the use of the land in the manner proposed in the development application is contemplated by and intended to be regulated by the management plan," he wrote.

"Irrespective of the basis upon which the Tribunal and the primary judge approached this question, this Court has all the information it needs to determine this appeal. It is not necessary for the matter to be remitted to either forum for further determination."

He was in the minority in the 2-1 judgment, however.

The decision was the latest in a series of planning approval delays for the tourism proposal.

Hackett has faith in proposal; Wilderness Society celebrates

The Wilderness Society Tasmania described the decision as "vindication" for its decision to continue appealing in the Supreme Court.

The proposal has faced extensive opposition from fly fishing and bushwalking groups, who claim it would degrade wilderness values and be the "thin edge of the wedge" for further development in wilderness areas.

Wilderness Society Tasmania campaign manager Tom Allen said it was a welcome outcome.

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"This is a victory for everyone who has fought for years to keep world heritage wilderness in lutruwita/Tasmania public, protected and thriving," he said.

Last year, Environment Minister Sussan Ley requested more information from Mr Hackett after finding the helicopter aspect could have an "adverse impact" on wedge-tailed eagles. He has altered the proposed flight path as part of that process.

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The Commonwealth consideration was independent of the planning appeals.

The proponent, Mr Hackett, said they would continue to pursue the proposal.

"We'll follow the prescribed planning processes before us, just as we always have," he said.

"The science backing the project is sound, and the long-term project will be achieved. Lengthy delays in Tasmanian environmental projects are nothing new to those involved."

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