It has been established in section 6.1 that desk-top data is unreliable at the site-specific scale and therefore field verification is critical to determining whether values are present and impacted upon. As established in section 6.2, the process of field verification in turn requires a degree of interpretation, particularly in relation to classifying vegetation communities, identifying habitat and incorporating new knowledge. However, there is a lack of endorsed guidelines, criteria and decision support tools
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specific to land use planning to support this interpretation. In addition, as established in section 3.2.3, there is no formal referral agency or advisory body to act as referee when there are differences in interpretation. Given that, in most instances, the person undertaking the field verification and subsequent assessment against the planning scheme provisions is a suitably qualified person engaged directly by the applicant, ‘the issue then becomes how independently verifiable is what they are saying’ (State Expert 1 2015).
Eleven percent of interviewees (n = 4) were of the opinion that the consultants they dealt with were not compromised or biased in their assessments.
Personally I don't believe that [consultants are inherently biased towards those people that pay them]. It's not my experience, that that's the case. But it's a view held by some of the community (Manager Planning 5 2015).
Whereas 28% (n = 10) of interviewees across all areas of expertise, all scales and regions and State, local and non-government, including ecological consultants, expressed the view that consultants are compromised simply by virtue of being engaged by the applicant.
The developer’s engaged the consultant who then has an inherent conflict because they’re paid by the developer aren’t they? (Statutory Planner 1 2015).
If you're an applicant employing a consultant you’re almost trying to buy a permit from him and buy a report that’s going to favour what you want to do (Manager Planning 3 2015).
There’s confusion out there for all the specialist people working for developers… the planning system expects that as a specialist we are impartial, but our client would like us to not be (Ecological Consultant 2 2015).
I mean they’re paying the bills so you certainly-you can subtly change how you say things and they certainly give pressure to do that (Ecological Consultant 1 2015).
There’s some pragmatic reasons why it’s not always great to rely on the consultant working on behalf of a developer and their information and we have, I think it’s fair to say, some fairly regular issues with consultants about their interpretation of values and how they think those values should be managed versus our expertise in that regard (State Expert 1 2015).
Two of these interviewees acknowledged that, despite being compromised, consultants were generally trying to get the best conservation outcomes whilst still meeting the needs of their clients, the developers.
The only report we can really look at is usually the one that’s provided by the applicant; and, surprise surprise there's nothing worth saving in this environment or it’s curbed in a way that facilitates with what they want… there are certainly some significant people out there that do good work, but they still are badgered by their developer... If they don’t give the developer what they are asking for they won’t get the job next time… Working for Council they can come up with
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some recommendations that really do have biodiversity interests at heart, working for the developer, they’re coming up with a solution that they can kind of tolerate and sleep with that still pushes the development through (Strategic Planner 1 2015).
His commitment is to actually try and get as much before he gets the boot basically. And he appreciates that he can probably get more out of those developers than anyone else. In this work place they are doing their best to uphold as much as possible, but it’s driven by the developer (NRM 3 2015).
As shown in section 6.1.3, many planning authorities are limited in their capacity to review or question the assessment of the suitably qualified person engaged by the developer. In addition there is no formal process or regulatory body to review and audit assessments undertaken by the suitably qualified person within statutory planning. In contrast, the FPS has certification and accreditation processes for Forest Practices Officers (FPOs), with a skills-based Forest Practices Board appointing and delegating FPOs (State Expert 6 2015).
6.3.1
Certification and accreditation
The introduction of certification and accreditation of suitably qualified persons, including auditing and oversight by an independent body, was identified as potentially worthwhile by 42% (n = 15) of interviewees across all areas of expertise.
I do think there's an opportunity for some sort of accreditation or having a pool of registered experts whose material can be relied upon but I do think there always has to be the decision maker can disagree with that (NGO Expert 1 2015).
We need to know that when someone does a survey for the orange bellied parrot they have undoubted expertise in that area... People that do flora and fauna assessments… virtually anyone with a science degree can go and do it (NGO Expert 3 2015).
There needs to be an independent body there or an independence of assessment (Statutory Planner 1 2015).
Absolutely [accreditation is worthwhile]. I also think there should be some auditing. I have seen many botanical flora and fauna reports where they’re not of sufficient standard and they demonstrably missed many plants that they haven’t identified, so what have they not reported on? (Ecological Consultant 2 2015).
However, one interviewee expressed concerns about the costs of introducing an accreditation system.
It’s very hard to have one accreditation that said, ‘Yes you’re qualified’. I think Council staff need to be savvy enough to think, ‘Do I know that ecological consultant? Can I ask for their qualifications to make sure they are suitably qualified?’ I think that caveat there,-suitably qualified,-gives Council the ability to ask questions if they need to or if that person isn’t known or even if their data doesn’t seem consistent… I think a place as small as Tasmania, it should be easy
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to ask those questions and find those things out. I think accreditation could be really expensive and therefore just not viable potentially (NRM 2 2015).
Establishing an accreditation process clearly requires resourcing as well as consideration of how it is established and maintained in a manner appropriate to land use planning. However, such processes have been established in relation to bushfire, Aboriginal heritage and forest practices. As acknowledged by a number of interviewees (n = 5, 14%), predominantly state experts (n = 4), the accreditation system established for forest practices in particular has potential as a model.
Anybody can call themselves a Botanical consultant and get out there and get work… Personally I think there should be some accreditation process. I mean FPO’s have to be accredited and I think they have to be reaccredited every few years. It’s baffling to me why they don’t have a similar system for people setting themselves up to be consultants. (State Expert 8 2015).
I think they should have certification. I feel that passionate. How you do that I’m not quite sure, but FPA does it with their FPO’s, their Forest Practices officers (State Expert 3 2015).
Accreditation, while only part of the solution to addressing the potential bias associated with the direct engagement of suitably qualified persons by the applicant, provides much needed accountability and support for ecological consultants.
6.3.2
Formal referral system
Another solution to reduce potential bias identified by a number of interviewees is the establishment of a referral system or process, akin to that for Level 2 activities or heritage.
I’d prefer to see a [referral] mechanism similar to those which existing in EMPCA, cultural heritage and water and sewerage (Manager Planning 4 2015).
If you did have an independent referral agency that was purely looking at the biodiversity outcomes, and if it was their assessment that irrespective of any of the economic or social benefits that Council had identified, from a biodiversity perspective it wasn't going to stack up then Council's hands were tied, then I think that's the appropriate way to do it and we do have that model with some of the other things like heritage and sewerage and water and Level 2's so it’s not a foreign concept for the planning system to adopt that sort of referral process (NGO Expert 1 2015).
Some planning authorities do refer proposals to the Policy Conservation Advice Branch (PCAB) of DPIPWE for informal advice, especially where State listed communities or species may be impacted. However there is no legislative requirement for them to do so, there is no head of power for DPIPWE to provide binding advice and the level of advice received is variable and not always helpful.
It’s very random who refers things to PCAB from Councils. Obviously because there’s no trigger in LUPAA to say you must or the planning scheme’s say you must (State Expert 5 2015).
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We do [refer applications to PCAB], but often their advice is very difficult to make much out of, and the chances of them turning up to a panel hearing and actually advocating a position is slim, and sometimes, if the only advice is there maybe the presence of some particular species, and they … recommend that you do another assessment at a different time of the year; that’s the end of the story. We’ve got no legs to really follow it up (Strategic Planner 1 2015).
Referring to PCAB is great. PCAB go 'that bit's ok, that bit no way'. Then we can go 'that bit ok, that bit no way' (NRM 1 2015).
Occasionally [we refer applications to PCAB]. But to be honest, pretty rarely, (i) because of the time, and (ii) because I’ve often found their responses not overly helpful or useful (Environmental Planner 2 2015).
We ask for the developer to get the information from a private consultant. If there's a threatened species we don't send it through... If it needs a threatened species permit, we'll come to a conclusion ourselves on the basis of the qualified report we've got or we might get a second opinion from another consultant. We don't go to DPIPWE (Manager Planning 2 2015).
There is also a lack of referral requirements under the EPBCA, which is based on a self-referral system. Under the self-referral approach, planning authorities are not required to refer proposals to the Commonwealth where they may have a significant impact on a matter of national environmental significance and there is no mechanism for them to do so.
Establishment of formal referral processes integrating statutory planning with State and Commonwealth legislation, in addition to the development of supporting guidelines and decision support tools and an accreditation system, would bring the processes for identifying and assessing impacts on biodiversity into alignment with the processes adopted by the FPS. Decision support tools guide the initial identification and classification of values and site-specific management prescriptions are determined by the FPA in consultation with DPIPWE. Therefore, the final interpretation of habitat and an appropriate management response is determined by the regulator, not the suitably qualified person, in this case the Forest Practices Officer.
Establishment of a referral system is contested, with some viewing such an approach as too complicated for a statutory planning process.
I don’t like the concept of the referral process because I think that the planning scheme needs to be able to stand on its own. While Heritage Tas has been quite good to deal with over the years, or at least that’s what we’ve found, not many government departments are, and I would be concerned that resource limitations down the track would cause complications and slow everything up (Statutory Planner 1 2015).
Notwithstanding, ensuring a referral system works efficiently is a matter of legislative reform and resources; neither of which are insurmountable barriers, providing there is the political will.
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Development of supporting guidelines and decision support tools, introduction of an accreditation process and establishment of a referral system are all potential mechanisms for improving consistency in interpretation and reducing the potential bias in expert advice. However these mechanisms do not sever the direct connection between a consultant and the developer, and consequently the conflict of interest remains.
6.3.3
Direct engagement
One possible mechanism to remove the conflict and associated potential bias identified by two interviewees was the engagement of consultants by the regulator rather than the developer, but at the expense of the developer.
The regulator could engage us and that makes sense… It makes sense for the private sector to pay for it if they’re the ones doing the development, but I wonder whether it could be structured slightly differently… I’m not sure how you’d fund that, but you could work some way out where somebody has to put an application in and then it could be commensurate with the scale of development… That way, really complex ones would cost more than other ones that are straightforward. But there’s a fund then to resource that, that’s paid independently of any particular developer (Ecological Consultant 2 2015).
There needs to be some sort of independent funding for it. So the consultant is just accredited under an independent process and paid out of an independent pool of money. So they're not beholden to the developer. That's hard to imagine but the easiest step is that we need a certification process for consultants (NGO Expert 3 2015).
A similar approach could be adopted if a matter proceeds to appeal and the expert witnesses are engaged directly by the Tribunal rather than by the appellant or respondent. The potential for an expert witness to have a conflict of interest where engaged by a party to the appeal is acknowledged in expert witness Practice Direction 12.
Where the same person represents a party at a hearing and gives evidence as an expert, there is a clear conflict between the overriding duty to the Tribunal and the duty to the party (client). (Resource Management and Appeals Tribunal 2018a).
Direct engagement of expert witnesses by the regulator or arbiter would arguably reduce bias and enable experts to assist the regulator or arbiter more impartially on matters relevant to the expert area of expertise, which according to Resource Management and Appeals Tribunal (2018b), is their duty.
6.4
Conclusion
In this chapter I have established that the current processes and rules for determining whether relevant concepts of biodiversity are present and impacted are compromised. It is widely acknowledged that field verification is critical to identification of relevant concepts. However the provisions of the SPPs
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and 34% (n = 10) of interim schemes preclude field verification outside the statutory overlay. Consequently, there is a reliance on desk-top data, unreliable at the site-specific scale, to make decisions and the impacts on values outside mapped areas remain unregulated and beyond consideration.
Notwithstanding, even where field verification is provided for, determining when values are present on a site and impacted by a proposal requires interpretation in classifying vegetation and determination of the significance of vegetation as habitat. Clear definitions, guidelines and management prescriptions specific to land use planning, and which are able to evolve as scientific knowledge changes, have the potential to improve substantive biodiversity conservation outcomes (Farrier, Whelan & Brown 2002; Ives et al. 2010; Peterson et al. 2007; Slocombe 1993). While such documents are forms of weak law (Buxton et al. 2006), when linked to statutory planning instruments and third party validation they gain in strength. The link between the Forest Practices Regulations, the Forest Practices Code, agreed management procedures and decision support tools utilised by the Forest Practices System in Tasmania provides a potential model worth further investigation.
Where values are identified as being relevant and impacted, determining whether this impact is acceptable comes down to the planning scheme criteria, or rules. This is the focus of the next chapter, where I evaluate the criteria used under the interim schemes and SPPs to determine whether the impacts are acceptable and in what circumstances (Chapter 7).
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