RALPHS BAY CONSERVATION AREA
Legal Arguments in Brief

Background

On 4 July last year, then Environment Minister, Judy Jackson, sought to ‘clarify’ the boundary on advice from the Solicitor General and issued a statement to the effect that the Ralphs Bay sandflats to low water mark were no longer included within the Conservation Area. 

The State Government is attempting to change the boundary of the Conservation Area as a direct result of an approach from the Walker Corporation’s legal adviser in late June/early July 2005. 

Legal advice obtained by the Tasmanian Conservation Trust and SRB Inc. points to a different conclusion being reached had Minister Jackson sought a wider determination on the boundary question.  In Parliament on Thursday 31 August 2006, Minister Llewellyn confirmed the government had NO legal advice recommending the boundary be moved from low water mark to high water mark, and that the Bill was ‘a political decision’ made by Cabinet.  (Hansard, 7.30 pm).  The Minister also confirmed formal advice had not been sought from the Surveyor General.

On 12 August 2005, SRB Inc. requested the Minister reconsider her decision, setting out a clear list of arguments and applying standard surveying practice to support the inclusion of the land area to low water mark within the boundary - as was the original intent of the Crown Lands’ Act Order of 1982 creating the Coastal Reserve which became the Ralphs Bay Conservation Area ‘by name change only’ under the RFA Act of 1998.

If passed by Parliament along with the PoSS, this bill will not only ensure the full conservation values of Ralphs Bay are not adequately assessed by the RPDC, it will also set a shocking precedent for conservation areas and reserves across Tasmania.

Creation of the Ralphs Bay Coastal Reserve, 23rd April 1982

Crown Lands Act Order No. 28 of 1982, signed by Godfrey Harry (“Dick”) Adams, reserved “6 hectares or thereabouts” of land as the Ralphs Bay Coastal Reserve.

The sandflats were included in the Coastal Reserve

The Schedule to Crown Lands Act Order No. 28 of 1982 makes it clear the area to low water mark (LWM) was to be included in the Coastal Reserve.  The reserved land consists of, “6 hectares or thereabouts comprising lot 23 on S.P.D. 1002 filed and registered in the Office of the Registrar-General and Recorder of Titles at Hobart together with the land between lot 23 and the low water mark on Ralphs Bay as the same is shown surrounded by a heavy black line on the plan attached hereto.  (PF 10435)

6 hectares or THEREABOUTS

The land area above the high water mark (lot 23) was defined, as 6 ha or thereabouts. 
The word ‘thereabouts’ indicates that the area between the high and low water marks (below lot 23) cannot be precisely defined and measured.  This is because “low water mark” is an “ambulatory boundary”.

Ambulatory boundaries

As the name implies, this is a natural boundary that is not fixed in one place, but wanders, slowly and imperceptibly.  Examples are the banks of a meandering river – and the low water mark, on a sandflat. 

On the 1998 Conservation Area plan under the RFA Act, and the L.I.S.T. map of the Ralphs Bay Conservation Area, mean LWM is defined by a dotted line that uses a standardised, statewide measure of the LWM, or seaward boundary of the land.

The mapmakers understand this perfectly.  They have always drawn this boundary right out across the sandflats, in a position that can reasonably be argued to indicate low tide mark.

Former Lands Minister Dick Adams remembers that the intent was always to protect the sandflats:

(ABC Radio News transcript)

HOBART– 12:30 PM News– 9 August 2006 – (Dick Adams - Ralphs Bay Conservation Area)

ABC 936

The former State Labor Minister who signed off on the original map of the Ralphs Bay conservation Area has revealed that he intended the reserve to extend to the low water mark.  The Save the Ralphs bay group is worried that the State Government is about to move the conservation area from the low water mark to the high water mark.  Lawyers from the Walker Corporation has queried whether the original map of the conservation area extends across the tidal flats where Walker wants to build its $300 million Lauderdale Quay style development. The former State Lands Minister and current Federal Labor Member for Lyons, Dick Adams approved the original map of the reserve in 1982.  Mr Adams says that the boundary of the conservation area is a matter for the current State Government to resolve.  The Government says that it will legislate to clear up any doubt about the boundary.

Dick Adams:  “It went down to the low water mark, now whether the low water mark covered all the mud flats, one doesn’t know”.

The Coastal Reserve becomes the Conservation Area in 1998

The current Conservation Area was created from the Coastal Reserve under the Regional Forest Agreement in 1998, by adding a small extra parcel of land to lot 23 and renaming the Coastal Reserve the “Ralphs Bay Conservation Area”.  (See Plan No. 4713 from the Central Plan Register).

The - recently revealed - private ownership of that small extra parcel of land is what the Lennon Government is basing its argument on for removing the sandflats.  This is a red herring.

The only relevant change made to the original Coastal Reserve in 1998 - according to the plan - was its name.  Land was clearly acquired by a means now in question, but that it not relevant to the fact that the Conservation Area was always intended to extend FROM the area that the Lennon Government now thinks should define the Conservation Area TO low water mark.

Note that on the right of the lower panel below the map, “Coastal Reserve” is crossed out, and “Conservation Area” is written over the words “Coastal Reserve”.

To make this even clearer, the “Amendments” panel over at the left side of the plan below the map states clearly the reason for the new title:  the Conservation Area was created, “BY NAME CHANGE BY RFA ACT OF 1998 (Sch. 9)”.

The Ralphs Bay Conservation Area is essentially the same parcel of land as the Coastal Reserve, and extends to the low water mark on the sandflats, just as the Ralphs Bay Coastal Reserve did.

Low water mark

LWM is the lowest line to which a body of water recedes.  The paper, “Tidal Interface - Analysis of Legal Entities - Tasmanian Perspective” prepared by the office of the Surveyor General, provides that the term low water mark is used at common law to determine the seaward boundary of the foreshore, or tidal land.

In the case of the Ralphs Bay Conservation Area, the low water mark would extend to the tidal mudflats.

The mapmakers have no trouble understanding that the boundary of the Conservation Area is out on the sandflats, at low water mark.

However, since LWM moves with the phases of the moon, the seasons and with shifts in the distribution of sediments - it is regarded as an ambulatory boundary, and has not been defined other than indicatively on a Plan of the area. 

By stating “LOW WATER MARK” on the low water side of the heavy black line placed at the high water mark, Plan 4713 indicates the extent of the Conservation Area, far out on the sandflats, just as it has always been mapped.

+/- 7,3 hectares

On Plan 4713, a small line points precisely to lot 23, ABOVE the high water mark, and states its size as “+/- 7.300 ha”.

.The Walker Corporation and the Lennon government argue such an apparently small area cannot possibly include the sandflats.

They are wrong, and this can be argued at least four ways: 

1/.  The “+/- 7.3 hectares” only applies to Lot 23, above the high water mark, and not to the whole Conservation Area (see Plan 4713, which labels this very clearly);

2/.  The Schedule to the 1982 Coastal Reserve stated categorically that the Coastal Reserve extended to the low water mark, and the Conservation Area was created from the Coastal Reserve by a simple name change.

3/. Even if “+/- 7.3 hectares” on Plan 4713 referred to the whole Conservation Area (rather than Lot 23 alone), the meaning of the “+/-“ would be equivalent to “thereabouts” in the phrase, “6 hectares or thereabouts”, in the title to the Schedule of the Coastal Reserve.  The “+/-“ would, like “thereabouts”, refer to the large area of land across the sandflats, whose precise area cannot be stated, due to the ambulatory nature of its boundary. 

4/. Even if there were to be a dispute between the phrase, “low water mark” and the figure, “+/- 7.3 hectares”, the former carries greater weight in matters of boundary law.

Metes and Bounds

The definitive reference in respect of surveying practice in Australia is Hallmann’s Legal Aspects of Boundary Surveying (1997), Institute of Surveyors Australia (NSW).

In paragraph (4.2), Hallman’s makes it clear that where there is a dispute between the description of a boundary (the “bound”) and the measurement (the “mete”), the bound has precedence over the mete.  Thus the description, “low water mark” or LWM has precedence over the measurement, “+/- 7.3 hectares” even IF the true meaning of this qualified figure is wilfully ignored.

In principles universally observed throughout all Australian jurisdictions and New Zealand,
surveyors give weight to all of the available evidence, but give weight to that evidence in the following order of priority:  firstly, Natural Boundaries, such as low water mark; (secondly and thirdly, monuments and fences - not applicable here), and only fourthly, Survey Measurements.

A WIDER DETERMINATION IN THE SUPREME COURT

Late last year, the Surveyor General, the EDO and advisers in Ms Jackson’s office all agreed that the precise legal extent of the Conservation Area could only be defined by a court - the SRB group could SEEK A WIDER DETERMINATION (than the Solicitor-General’s), in the Supreme Court, taking surveying practices into account.  The group not yet done so, because there is potentially a financial risk that would be very hard to bear.  The Minister has confirmed SRB Inc would most likely win such a case....

HANSARD - UNCORRECTED PROOFS
Parliament of Tasmania- House of Assembly
Thursday, 31 August 2006 - Part 2
RALPHS BAY CONSERVATION AREA (CLARIFICATION) BILL 2006 (No. 26)
Second Reading

Mr LLEWELLYN - In subsequent legal advice, however, the Solicitor-General has indicated that the conservation area would more likely than not extend to the actual ‘low water mark’ in Ralphs Bay, if it were the subject of litigation and not be restricted to the area bounded by black lines on plan 4713.”

Ms Jackson and, following the state election, new Minister for the Environment Paula Wriedt, hoped the matter could be resolved through the CLAC (Crown Lands Assessment and Classification) process. 

The Minister and Ms. Wriedt appeared to be sincere in their belief that the CLAC process could and should resolve boundary dispute, and communicated this to SRB Inc in writing. 

The Ralphs Bay Conservation Area was removed from CLAC’s agenda around the time of the March 18 election.