AustLII Tasmanian Consolidated Acts

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FOREST PRACTICES ACT 1985 - SECT 16

16. Compensation may be payable where application refused

(1) Subject to this section, where–

(a) the Authority has refused to grant an application for a declaration of land as a private timber reserve only on the ground referred to in section 8(2)(d) or (e);

(b) the owner of the land has appealed to the Tribunal against the refusal to grant the application and the appeal has been dismissed; and

(c) timber on the land is thereby made less valuable to the owner of the land by virtue of the fact that he or she is prevented from using the land for timber production–

he or she is entitled to compensation for the value of the timber crop growing on that land in accordance with this section.
(2) The entitlement does not arise unless –

(a) an application for the compensation is received by the Authority within 30 days after the day on which the Tribunal dismissed the appeal; and

(b) the Authority is satisfied that, for at least 2 years before making the section 5 application, the owner of the land was actively managing the land for the purpose of establishing forests or growing (with the intention of harvesting) timber; and

(c) if the section 5 application was refused under section 8(2)(d) –

(i) the prohibition referred to in that section was not a prohibition contained in a planning scheme or special planning order under the Land Use Planning and Approvals Act 1993 or in a statutory provision that purports to enforce the observance of a requirement of any such scheme or order; and

(ii) the prohibition was imposed only within the period of 3 months immediately before the owner of the land made the section 5 application; and

(iii) the Authority is satisfied that, during the period the land was being actively managed before the imposition of the prohibition, the owner of the land had an intention to apply for the declaration of the land as a private timber reserve.

(2A) .  .  .  .  .  .  .  .  
(3) If –

(a) the section 5 application was refused on the ground referred to in section 8(2)(d) or (e) wholly or partly because the declaration would threaten natural or cultural values; and

(b) although the Crown wishes to preserve those values it does not want to acquire the land –

the Authority must, if requested to do so by the Minister, require the owner of the land to enter into a conservation covenant with that Minister for the protection of those values under Division 3 of Part 5 of the Nature Conservation Act 2002.
(4) If subsection (3) applies –

(a) compensation is not payable under this section unless the owner of the land and the Minister enter into the conservation covenant within 12 months after the day on which the owner of the land receives notification of the requirement; but

(b) if the conservation covenant is not entered into within that 12 month period, the owner of the land may apply to the Minister, in writing, for a certificate of release from the requirement.

(4A) On receipt of the application, the Minister must –

(a) issue the owner of the land with the certificate of release; or

(b) if the Minister is satisfied on reasonable grounds that the failure to enter into the conservation covenant within the required period is attributable to wilful obstruction, unreasonable delay or another unreasonable act or omission on the part of the owner of the land, refuse to issue the owner of the land with the certificate of release.

(4B) The certificate of release may be in such form as the Minister determines.
(4C) If the Minister does not take action under paragraph (a) or (b) of subsection (4A) within 30 days of receiving the application, the Minister is nevertheless taken to have issued the certificate of release at the expiration of that period.
(4D) If the application for the certificate of release is refused –

(a) the Minister must notify the owner of the land of the refusal, and the reasons for the refusal, as soon as practicable; and

(b) the owner of the land may apply to the Magistrates Court (Administrative Appeals Division) for a review of the refusal to issue the certificate of release.

(4E) The owner of the land may, if issued with the certificate of release, resubmit the application to have the land declared as a private timber reserve.
(4F) An application for the declaration of land as a private timber reserve resubmitted under subsection (4E) is not capable of being refused on the same or substantially the same grounds as the original application and, in that respect, the land may be declared as a private timber reserve notwithstanding –

(a) the operation of any Act that may prohibit the owner from establishing forests, or growing or harvesting timber on the land; or

(b) that it may not be in the public interest to grant the application because the declaration may threaten important natural or cultural values.

(5) Where an owner of land is entitled to compensation under this section the Authority shall request the Valuer-General to determine the amount of compensation that is payable.
(6) Unless the Authority or the owner of the land disputes the amount of compensation determined by the Valuer-General, the owner of the land is to be paid the amount of compensation determined by the Valuer-General.
(7) If the Authority or the owner of the land disputes the amount of compensation determined by the Valuer-General, that amount is to be determined in the same manner as a disputed claim for compensation under the Land Acquisition Act 1993.
(8) Any compensation payable under this section shall be paid out of moneys appropriated by Parliament for that purpose.
(9) Notwithstanding subsection (1), a person's entitlement to compensation under this section in respect of any land lapses if, before the compensation or first instalment of the compensation is otherwise due to be paid –

(a) the Crown acquires that land or any part of that land; or

(b) the person otherwise ceases to be the owner of that land or any part of that land.

(10) If an application for the declaration of land as a private timber reserve is refused on the ground referred to in section 8(2)(d), any entitlement to compensation arises under this section, not under the prohibition imposed under the Act referred to in that section or any other Act.
(11) In this section –
Minister means the Minister administering the Nature Conservation Act 2002;
natural or cultural values means natural or cultural values within the meaning of the Forest Practices Code.



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