Bailey v The Forestry Commission of New South Wales

[1989] NSWLEC 174

Land and Environment Court

of New South Wales

CITATION:	Bailey v The Forestry Commission of New South Wales [1989] NSWLEC 174
PARTIES:	APPLICANT T.R.Bailey RESPONDENT The Forestry Commission Of New South Wales
FILE NUMBER(S):	40212 of 1987
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act, 1979 Forestry Act 1916 Forestry Regulation 1983
CASES CITED:	Guthega Development Pty Limited v. The Minister, 1987 NSWLR 353, at 367; Parramatta City Council v. Hale, 1982 47 LGRA 319; Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335, at 339-341; ACR Trading Pty Ltd and Anor v. Fat-Sel Pty Ltd and Anor 1987 11 NSWLR 67, at 82.
DATES OF HEARING:
DATE OF JUDGMENT:	03/31/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The respondent, The Forestry Commission of New South Wales ("the Forestry Commission") is responsible for the administration of the Forestry Act 1916 and has the care and control of all State Forests and other Crown timber lands in N.S.W. It provides planning and research, supervision, fire control and road construction therein and logging operations are authorised by the grant of licences, harvesting plans and other approvals.

The applicant is part owner and the occupier of land adjacent to the Mistake State Forest in an area near the head of South Arm Creek near Bowraville. Mistake State Forest is a hardwood forest having an area of some 8,616ha, and is inland and to the west of Macksville on the north coast of N.S.W. some 500km north of Sydney. The applicant is a member of an unincorporated body known as the "South Arm Catchment Protection Group", which has been active in opposition to logging activities in the said forest.

The application seeks declarations concerning the lawfulness of activities carried out by the Forestry Commission and approvals granted by it to others to carry out logging activities in the Mistake State Forest.

This application initially also sought orders with respect to a licensee who was authorised by the Forestry Commission to carry out the felling and removal of logs from the forest. The second respondent withdrew from these proceedings as a consequence of interlocutory orders against both respondents made by Stein J. on 30th November, 1987. Such orders relate to logging activities in compartments in the catchments of South Arm, Lowes, Purgatory and Jasper Creeks.

Mistake State Forest forms part of the Macksville Management Area which encompasses a total area of over 50,000ha. Approvals and works relevant to this application purport to be in accordance with prescriptions in a Management Plan adopted by the Forestry Commission, and amended in 1980, 1982, 1983, 1986 and 1987. The first record of timber cutting in the Nambucca area was 1842 and hardwood sawmilling commenced in the 1870s with a mill located at the port of Nambucca Heads, followed by sawmills at Bowraville and Macksville. Early logging was selective in that only superior trees were removed and extraction was by bullock teams concentrated on the closer coastal forests of better topography. Poles, piles, girders, sleepers and other miscellaneous sawn and hewn timbers have been obtained from coastal forests since the turn of the century. Hardwood logging commenced in the mid-1940s and concentrated on the more accessible eastern sections located significantly closer to the sawmills, and in particular on Mistake

State Forest. The earlier logging was selective, so some stands logged in the 1940s and 1950s now carry some larger merchantable trees not then considered suitable for saw logs, and twenty to thirty year old regeneration. Since the 1960s, hardwood logging operations in the management area have concentrated on up river forests on the basis of maximum economic utilisation of mature and over-mature growing stock.

Most areas adjacent to the residents of the Upper South Creek were last logged between the years 1945 and 1961.

The evidence called by the parties in this matter was extensive and it is impossible and inappropriate to set it all out herein. I have given careful consideration to that evidence and will make reference only to some aspects thereof.

The applicant is unemployed and has lived in the area since about 1975 and the main rural pursuit on his land is the grazing of a small number of cattle and horses. Most of his property, which has an area of about 121ha, is steep country and immediately adjoins the State Forest. He was aware of the existence of the State Forest at time of purchase, and that logging activities were carried out therein. He alleges that as a consequence of such logging activities and, particularly since the construction of Hanging Rock Road between 1982 and 1984, rainforest areas have been logged and serious erosion has taken place which has caused siltation and pollution of creeks within his property.

Mr Bailey alleges that the areas proposed for logging include very steep areas which drain to the existing creek and river system, and large areas have been laid bare. In some areas more than fifty per cent of the over-storey has been removed, including ridge lines, and he observed benching of slopes in excess of thirty-five degrees. He says that rainforest pockets have been destroyed by removal of brush box over-storey and the construction of log dumps, and that there has been "rampant" regeneration of lantana and burning by exposure to the sun of light-intolerant species such as palms and epiphytes. Snig tracks have caused erosion channels up to half a metre deep, trees have been felled into stream beds, and filter strips and stream beds damaged by bulldozers. He says that the present logging operations appear to be more intensive and extensive than those which have been the practice of the Forestry Commission in the past, and is concerned that if the activities continue in the same manner in steep country

there will be a significant impact upon the forest and adjoining properties.

William K. Jolley, Alfred Tesser, Ronald Begg, Graham McPeade and Peter Hunt are the owner/occupiers of various properties in the vicinity of the Mistake State Forest. They all claim to have observed significant disturbance of soils, mostly in the form of poorly drained snig tracks, particularly where constructed on steep gradients. They also observed the subsidence and erosion in sections of Hanging Rock Road, and erosion generally in snig tracks, which they say caused soil erosion within drainage lines and considerable forest and soil disturbance therefrom. They observed what they describe as "an increased siltation of creeks". Some are compelled to rely upon rainwater for drinking purposes because the water in the creek is often polluted. They claim an adverse visual impact of logging operations particularly along the ridges and in the valleys and rainforest. They object to the logging of the steeper slopes and the removal of the majority of trees from "group selection" logging.

Alan Lea of Brush Box Creek, Taylors Arm, is a qualified forester and was employed formerly by the A.C.T. Forest Department of Territories and Local Government. In his opinion, environmental problems arise in these "up river forests" (or working circle) because management involves low economic input for expected low economic returns. The up river forests are generally steep, logging costs are high and haulage distances greater. He agrees that the Mistake State Forest's soils are of moderate erosion hazard, but says that there is a potential for soil slumping and erosion on steep slopes during heavy rain. He says that brush box is now logged whereas in the past it was unacceptable, and that this practice exposes adjoining rainforest pockets. He accepts that log dumps are inevitable in working State Forests and, whilst some have regenerated, says that erosion will take place therein unless properly restored.

David Milledge, ecologist, specialises in flora and fauna surveys. Whilst he has extensive practical experience, he does not hold relevant tertiary qualifications. Until these proceedings commenced, the Forestry Commission was unaware of the existence of |CF2.|PSIbosistoa floydii|CF1.|PSO in the proposed logging areas. This species is found in rainforest areas and is rare, but not classed as vulnerable. Mr Milledge says that in this forest it is "threatened". Mistake State Forest is fairly rich in flora and fauna, and this is despite logging activities over many years. Mr Milledge says that, on the other hand, the diversity of flora and fauna would be richer had there not been logging activities. He observed a snig trail cut through what he considers to be a rainforest in Compartment 324, and is of the opinion that brush box in or in the vicinity of such rainforests is under heavy pressure from logging operation activities. The brush box is also the habitat of the spotted tail quoll.

John Schmidt is a geologist and, at the request of the applicant, visited the Mistake State Forest. In particular, he inspected the Jaspers Creek, Purgatory Creek and Hanging Rock Road areas. He formed the opinion that the main forest soils in the forest would have moderate erodability. In his opinion, soil erosion and stream siltation is attributed to the critical factor combination of high slope, large volumes of soil disturbance, and bench cuts across drainage lines. In his opinion, logging and associated works in areas of high slope of twenty-five degrees and over, as observed in both the Purgatory and Hanging Rock areas, poses a serious threat to the balance and stability of the upper water catchment areas in that area in the form of unnecessary soil erosion and forest degradation. He says that logging is affecting water quality in creeks, and that many people draw water from such creeks. If log dump areas are not regraded after the termination of works the likelihood of erosion in those areas is much gr

eater.

John McGarity is an Associate Professor of Agronomy and Soils at the University of New England, and a lecturer in soils and soil conservation for many years to rural science and resource management students, including those employed by the Forestry Commission.

Mistake State Forest is a high rainfall area and, in his opinion, the erodability of the Mistake State Forest is four times that of Eden State Forest. Despite attempts to conform to the Standard Erosion Mitigation Conditions, in his opinion selective logging as undertaken in the Purgatory Creek, South Creek and Jasper Creek upper catchment areas has led to an increase in accelerated soil erosion in the short term and poses a substantial threat to the landscape stability in the longer term. Closed access roads, snig tracks, log dumps, batters and banks have generally been subject to surface wash, rilling and more severe cutting in on steeper slopes. These features now threaten to initiate more permanent gullies. In the absence of replacement of surface soil and stockpiles where vegetation has been extremely slow, he is doubtful whether soil replaced over bladed sub-soil would be retained on slopes exceeding thirty degrees. Professor McGarity assumed that further disturbance of the upper catchment will exacerba

te the existing problems. However, he did not corroborate the allegations of the local residents that logging operations at this stage had caused siltation and deposition in the local stream system outside the forest.

The Forestry Commission called eight employees, a representative of the Soil Conservation Service and three contractors.

Dr J.H. Drielsma, an Assistant Commissioner for Forestry in N.S.W. and formerly Chief of the N.S.W. Forestry Commission Planning Division, responsible for management, planning and environmental matters generally within the Forestry Commission, Mr C. Roberts, District Forester, and Mr P. Busby, Regional Forester, explained the history of the forest, management policies, the concept of "sustainable yield", procedures and documentation, and the nature and extent of environmental review by the Forestry Commission.

Mistake State Forest has been selectively logged over many years and no further major roading is proposed, although snig tracks, short log haul roads and log dumps will be built by contractors or their operators as required for short term use. The Forestry Commission asserts that the proposed activities are merely a continuation of existing selective logging operations.

All operations are said to be in conformity with the Management Plan, and the amendments in 1982 flowed from a re-inventory of the coastal working circle in 1979, and the calculation of an annual yield of saw log timber from the area designed to be sustainable indefinitely into the future. Permissible yields from the area will reduce in conformity with this calculation. The objective in the calculation of sustainable yield is said to have two major characteristics:

1. The yield is equal to or less than the average growth of the forest, and can therefore be harvested indefinitely.

2. The growing stock of the forest is never depleted, and the forest structure on average remains essentially unaltered over time or builds up temporarily if the yield is set at less than the growth.

However, sustainable yield does not regulate the number of trees to be removed because it is calculated only on crown quality, and therefore the only limit is on quota logs.

In the calculations of sustained yield in the Management Plan the upper river circle was not included because it was then considered to be a buffer. However, from the early 1900s white beech, red cedar logs and ironbark girders were obtained from accessible areas within such up river forests. The Management Plan does refer to several environmental matters, e.g. climate, soil, ecological and silvicultural matters, and environmental reviews were made before timber licences were issued in 1987. The Management Plan mainly deals with commercial management and, with respect to wildlife, no specific study has been carried out by the Forestry Commission. I infer this is because it believed that wildlife populations are likely to be similar to those in the north coast area generally.

A harvesting plan must be issued by the Forestry Commission to contractors before logging may take place, and depicts the physical boundaries of the areas to be logged. Filter strips and identified rainforest are excluded from areas which may be logged and an experienced contractor is aware that he is required to avoid rainforest species. The Forestry Commission claims that species types and filter strips present field boundaries which can be easily identified by experienced field operators. There is a dispute between the Forestry Commission and other experts as to the identification of rainforest areas and species. Brush box, because it is regarded as a hardwood by the Forestry Commission, is permitted to be logged if it is outside a filter strip or designated retention area, and where it occurs on the edges of rainforest areas.

Some harvesting plans which have been issued apply to the whole of the compartment and do not limit extraction to hardwood nor specify prescriptions.

The licences issued to contractors incorporate the Standard Erosion Mitigation Conditions. Notwithstanding the conditions of the licences, a forester is said to have delegated power to permit departures therefrom and, in particular, to authorise snig tracks of more than twenty-five degrees slope "according to the field situation". From time to time, snig tracks were authorised in slopes of more than twenty-five degrees, and when assessing gradients for this purpose it is the practice of the forester to average slopes over longer sections of snig tracks. No records are kept of any such special authorisation. In many cases, a contractor might merely assume authorisation because of his awareness of the practices of the Forestry Commission. Because trees are not selected or marked by the Forestry Commission for extraction, and the location of snig tracks is not usually shown on harvesting plans, decisions with respect thereto are also left to the operator. The contractor removes every possible merchantable stem,

including sleeper trees and pole trees. After logging there could be areas where no trees would be left, particularly with group selection, but generally the Forestry Commission seeks to retain a forest appearance. In this way timber is left to grow larger for future cutting cycles, and a fifty per cent canopy cover is sought over the nett loggable area.

Even though Stein J. was informed that Compartment 357 would not be logged, a timber licence and harvesting plan has been issued to permit logging of almost the whole of the compartment. The Forestry Commission regarded it and compartments 366, 367 and 369 as being less environmentally sensitive than those the subject of the original application. An environmental check list was used with respect to Compartment 357.

Dr Drielsma and the said foresters gave detailed reasons why they are of the opinion that the proposed activities are unlikely to significantly affect the subject environment, and that the Forestry Commission, particularly since the institution of environmental reviews, has discharged all of its duties pursuant to ss.111 and 112 of the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act").

Soil erodability and the appropriateness of the Standard Erosion Mitigation Conditions in the proposed logging areas was considered by Mr R.S. Saul, who is a soil conservationist with the Soil Conservation Service of N.S.W., Mr P.J. Ryan, forest soil scientist, Mr R.H. Squire, professional management officer, and Dr P.M. Cornish, forest hydrologist, each employed by the Forestry Commission. They are of the opinion that the soil types in the area range from low to moderate erodability, and concluded that the Standard Erosion Mitigation Conditions for logging had generally been implemented in a satisfactory manner, except along some minor logging roads. Mr Saul says there is room for improvement in the implementation of drainage works and care should be taken in planning and designing drainage works. In their opinion, erosion in the area under review is minimal, with only minor sediment layers reaching the main stream. In the Wilkes Road/Purgatory Creek area he observed considerable slumpage on the steep uphill

cut batter of the road. In his opinion, the batter is very prone to slumpage because of its steepness, type of soil and the dip of the rock strata in the direction of slope, and prevailing weather conditions had a significant effect upon the stability of the batter. He said stabilisation of the batter would occur over a period of time.

They confirmed that snig tracks varied from being almost flat up to a slope of thirty degrees. There is, in their opinion, minor erosion of snig tracks, except where cross banks have been damaged by stock or vehicles, and in some cases initial construction was of a poor standard.

Mr Ryan arranged for laboratory soil testing of samples from the Mistake State Forest. Professor McGarity did not. Mr Ryan saw no evidence that the surface soils were any more or less dispersible than the sub-soils, and no evidence of sodic sub-soils which would cause dispersion. He agrees that, in the assessment of erosion hazard, steepness is important and says that the main factors are the chemical features, the erodability of the terrain and the cover. He concedes, if that test is applied, that significant sections of Mistake State Forest could not be logged. He disagrees with the findings of Professor McGarity as to the propensity of the soil to disperse.

Dr Cornish conceded that he had formed his opinions before he made a visit to the forest and carried out any inspection, but still challenged most of the findings of Professor McGarity.

They therefore concluded that logging operations in the Mistake State Forest had led to an increase in soil erosion, but that the long term effect of erosion should be minimal if the Standard Erosion Mitigation Conditions for logging are implemented in a satisfactory manner.

Mr G.N. Baur is a silviculturalist employed by the Forestry Commission, and formerly a research officer on the north coast. He has not visited the Mistake State Forest in recent years, but he was present on several occasions during Forestry Commission excursions into this and adjacent State Forests prior to 1973.

The vegetation in the Mistake State Forest varies considerably, often over quite short distances. Most of the area is dominated by one or usually more species of the genus |CF2.|PSIeucalyptus|CF1.|PSO, of which over sixty species occur in the area, or by their relatives, brush box and turpentine. Interspersed with these more widespread sclerophyll or open forests are usually smaller areas of rainforest of complex structure and floristic composition. Mr Baur says that ill effects from the logging of sclerophyll forest stands appear to relate to long past harvesting operations carried out without the benefit of the knowledge, techniques and supervision now available. Where species coded as "rare" or "threatened", such as |CF2.|PSIbosistoa floydii|CF1.|PSO, are known to occur in a forest, the Commission officers would consider what, if any, steps are needed to ensure their adequate protection. No such action is required because, in his opinion, rainforests are not proposed for logging. If they were, and the logg

ing were to be a low intensity harvesting of selected stems only, probably no special protection would be sought as the impact of the logging operation would be so slight, but some subsequent checking of the condition of rare species would be expected. In his opinion, whilst lantana is a result of logging in the forest and will delay regeneration and may deflect the nature of it, it can also be beneficial. In his opinion, brush box is rarely a rainforest species, although it certainly is a species that will occur in a rainforest. In his opinion, rainforest areas can be logged quite successfully and still maintain their integrity as rainforest stands.

Mr D.L. Binns is a research forester employed by the Forestry Commission and he reported on a vegetation research and fauna survey in the Mistake State Forest. In his opinion, the area is a working forest and there is no evidence of significant harm. He did find |CF2.|PSIbosistoa floydii|CF1.|PSO, but is of the opinion that it would not be affected by logging because it occurs in the fringes of the rainforest areas. In his opinion, rainforest areas or communities are not sensitive to minor disturbance such as selective logging, and does not believe that the spotted tail quoll is endangered by the logging which occurs in the Mistake State Forest. In his opinion, particularly in the Jaspers Creek catchment, sufficient individuals of the pre-logging over-storey species exist as new regeneration remnant mature trees, or pre-existing advanced growth, to reconstitute an over-storey characteristic of mature, undisturbed forest, even allowing for at least fifty per cent mortality. He says that Mr Milledge failed to m

ake important distinctions between current Forestry Commission activities and those prior to 1960, and that he had a very strong bias towards investigation of rainforest. He said this ignores the forest types most likely to be disturbed by logging.

Mr R.A. Ainley, a forester employed by Allen Taylor & Co. Limited, is responsible for purchasing logs for its six mills on the north coast. His company has a sawmill licence and a timber licence to take timber from the subject area. The up river working circle involves less intensive logging than in the coastal working circle. In the Hanging Rock Road area the approximate yield of merchantable hardwood trees has been about thirteen trees per hectare over the nett loggable area. This does not include poles and follow-up removal which might involve a further thirteen trees. Trees in the follow-up operation are more likely to be fifty per cent than one hundred per cent. In some compartments he anticipates only one or two trees per hectare over the whole gross compartment area because a large part of that compartment will be inaccessible. He says that slopes in logging areas of Hanging Rock Road vary from ten degrees to forty degrees, and the area of slope in excess of thirty degrees would be approximately thirty

per cent of the total logging area.

Mr. G.P. L'Estrange, Commercial Manager for Allen Taylor & Co. Pty Ltd, is responsible for the management and operation of the Bowraville Sawmill. The mill employs twenty-one people and engages a contractor, Mr Neaves, who also gave evidence. They each gave details of the disruption and economic hardship if the subject logging operations were not permitted to continue. Mr Neaves was not cross examined.

The issues are therefore:

i) Whether it was open to the respondent to conclude that the proposed logging in areas within the Mistake State Forest was not likely to significantly affect the environment within the meaning of s.112 of the E.P.& A. Act, so that it was not required to obtain, examine and consider an environmental impact statement prepared in accordance with that Act before it granted further annual timber licences, contractor's licences and operator's licences under the Forestry Act 1916 and Forestry Regulation 1983 to enable the said logging to continue.

ii) Alternatively, whether in fact, according to determination by the Court itself as distinct from by the respondent, the proposed logging in areas within the Mistake State Forest is likely to significantly affect the environment within the meaning of s.112 of the E.P.& A. Act, so that the respondent was required to obtain, examine and consider an environmental impact statement prepared in accordance with that Act before it granted, and does grant in the future, annual timber licences, contractor's licences and operator's licences under the Forestry Act 1916 and Forestry Regulation 1983 to enable the said logging to continue.

iii) Whether the respondent in its consideration of the said logging examined and took into account to the fullest extent possible within the meaning of s.111 of the E.P.& A. Act all matters affecting or likely to affect the environment by reason of the said further selective logging.

iv) If any of the above questions are answered unfavourably to the respondent, whether in the exercise of its discretion the Court should grant injunctive relief to the applicant.

The applicant's claim is based upon a number of alleged breaches of statutory duty imposed by the E.P.& A. Act. That Act provides a mutually exclusive regime with respect to procedures to be adopted in the granting of approval for the development of land, and imposes new statutory obligations to include environmental assessment in the decision making processes of public authorities under any State legislation.

With minor exceptions, with the introduction of the E.P.& A. Act, exemption from control by planning laws to development by public authorities has been repealed. Part IV continued the requirement in former planning legislation that all development, including development of land by the Crown, included in an environmental planning instrument is either prohibited or expressly permitted with or without the necessity of the written approval of a prescribed consent authority. Pursuant to Part V, however, an act, matter or thing which was not prohibited by a planning instrument, but does not require such approval, does not now escape environmental assessment in the decision making process pursuant to other legislation. To distinguish the obligations under Part IV from Part V it was necessary to introduce new concepts, and impose obligations whereby a defined "activity" requires an "approval" of a "determining authority". An approval is defined in the widest of terms and includes |CF2.|PSI"a consent, licence or permi

ssion or any form of authorisation; and a provision of financial accommodation by a determining authority to another person."|CF1.|PSO (Emphasis added.) (s.110.) Since amendment in 1985, the definition of "activity" is now almost identical to that of "development" in Part IV.

Generally speaking, these new obligations apply to development by, on behalf of or with the consent of a public authority or Minister on Crown land, which is the determining authority.

The Mistake State Forest is zoned 1(f)-Rural (Forestry) pursuant to the provisions of the Nambucca Local Environmental Plan 1986 (Amendment No.2) The objectives of that zone are to enable the continuance and expansion of forestry and development for associated purposes, and development for the purpose of forestry may be carried out without development consent. It is common ground that the carrying out of the said works by the Forestry Commission and the grant of licenses for logging activities does not require approval pursuant to the L.E.P., and are "activities" pursuant to Part V. It is common ground that the Forestry Commission is the determining authority for all of the activities and the proponent for the construction of roads, tracks, trails and log dumps, and their restoration and maintenance. The actual logging and associated works and log removal is to be carried out by others pursuant to approvals granted to them by the Forestry Commission.

S.111 provides:|CF2.|PSI

"Duty to consider environmental impact.

For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity." |CF1.|PSO

The obligations under Part V reflect contemporary community awareness of the need not only for the development and utilisation of public property and natural resources, but also simultaneous environmental protection. For this purpose the scheme of the United States "National Environmental Policy Act" ("N.E.P.A.") was adopted, which also in certain circumstances requires the assessment of an "environmental impact statement" prior to the grant of approval to or the carrying out of an activity.

Section 112(1) provides: |CF2.|PSI

"Decision of determining authority in relation to certain activities.

A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment unless -

a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity -

i) prepared in the prescribed form and manner by or on behalf of the proponent; and

ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner;".|CF1.|PSO

The duty to prepare the environmental impact statement, if it arises, is cast upon the proponent, that is, the person intending to carry out the activity, but the alleged breach is the determination by the Forestry Commission to carry out or grant an approval in relation to the activity in the absence of such an environmental impact statement.

It is well settled that an environmental impact statement is designed to serve the ultimate decision making process, not to replace it. It is not a decision making end in itself; its purpose is to ensure that activities carried out by a public authority or with its consent and which are likely to significantly affect the environment are properly considered and exposed to public comment.

The Regulations provide for the contents of an environmental impact statement and, in certain circumstances, compel the participation of the Director of Planning. The Director may order consideration of relevant matters in such environmental impact statement and thereafter may report on the assessment. The determining authority is obliged to have regard to such requirements, and it is not sufficient merely to address such matters on its own perception of their utility or reasonableness. In this way the legislation ensures that determination of the relevance of environmental matters is not confined merely to the Forestry Commission as the decision maker seeking to achieve the objectives of the Forestry Act.

In my opinion, Part V does permit, in appropriate circumstances, an environmental impact statement which adequately assesses the overall activity without necessarily at that time also assessing the detail of the site specific impact of intended structures, activities and land use; cf. Guthega Development Pty Limited v. The Minister, 1987 7 NSWLR 353, at 367. In a multi-stage activity this may compel further environmental impact statements, but does not in all situations compel the preparation of statements which must necessarily be voluminous or duplicated at each stage. At the time of consideration of site specific proposals, it is a question of fact and degree whether the environmental impact statement for the overall activity is sufficient to satisfy again the obligations under Part V, or the extent to which it requires to be supplemented, amended or updated.

The legislation is silent as to the procedure to be implemented or guidelines to determine the likelihood of a significant impact on an environment and therefore the need for an environmental impact statement. It is of course a question of fact and degree. This has led to a number of challenges similar to this matter seeking to dispute the correctness of the conclusions of the public authority, and seeking declarations and orders setting aside the approval as a consequence of the alleged actual likelihood of a significant impact in the carrying out of the activity. This Court has consistently said it should decline to do so, even if it disagrees with the decision, if it is satisfied it was reasonably open to the determining authority; see Bentham and Anor v. Kiama Municipal Council and Ors (1986) 59 LGRA 94, and the cases referred to therein. However, the question whether it is for the Court to substitute its own assessment in order to determine the lawfulness of a development approval granted pursuant to Par

t IV has been expressly left open by Cripps C.J. in Hunter Valley Vineyards Association and Anor v. Cessnock City Council and Anor, Land and Environment Court, 7th October 1988 (unreported).

However, this Court must be "vigilant" not to exceed its supervisory role by reviewing an administrative decision on its merits; see Minister for Aboriginal Affairs and Anor v. Peko-Wallsend Limited and Ors, 162 CLR 24. In my opinion, whether it can do so is a question of legislative intention which may be discerned from the words used. In Part V it is clearly not intended that an environmental impact statement be prepared with respect to all activities. The determining authority therefore has a duty as a condition precedent to carrying out or granting approval in relation thereto to determine the extent to which an activity is likely to affect the environment. In my opinion, in a review of the lawfulness of a decision made pursuant to Part V, it is not the function of this Court to substitute its opinion for that of the Forestry Commission because the legislature has vested the determination of matters of fact in that body. Also, it is well settled that in the absence of any statutory indication it is for th

e decision maker and not the Court to determine the appropriate weight to be given to the matters which are to be taken into account in exercising the statutory duty pursuant to Part V.

The duty to prepare and assess an environmental impact statement may arise pursuant to s.112 if the carrying out of the activity is "likely" to "significantly" affect the environment. Neither of these terms is defined. Each is an ordinary English word and it follows that their meaning is a question of fact and not of law. To find such meaning, assistance may be obtained from dictionaries. Unless the context demands, it would be an error to assign to "significant" a meaning which was not its popular meaning; Hope v. Council of the City of Bathurst, (1980) 144 CLR 1. I have previously accepted that in the context of Part V "likely" does not mean "more probably than not", but rather a "real chance" or "probably". The test to determine whether the activity is likely to "significantly" affect the environment in this context is whether it is "important", "notable", "weighty" or "more than ordinary"; Jarasius v. Forestry Commission of N.S.W., Land & Environment Court, 4th March, 1988 (unreported); see also Drummoyne

Municipal Council v. Roads and Traffic Authority of N.S.W., Stein J., Land & Environment Court, 22nd March, 1989 (unreported).

I accept that in each case it is relevant to consider not only the absolute qualitative environmental effects of the activity, but also those in the context of existing adverse impacts arising from the subject environment; cf. Hanly v. Kleindienst 1972 471 F.2d 823. There is, in my opinion, no sensible reason for construing the duty imposed by s.112 as extending to every activity or to an activity whose impact is, considered alone, "significant", yet of only marginal impact as part of the relevant existing environment. In my opinion such activity, unless likely to exacerbate adversely the existing situation, is unlikely to have an impact which would significantly affect the relevant environment within the meaning of s.112.

The significance of the likely impact of the activity must therefore be gauged against the nature and scale of the relevant environment. The "environment" is defined to include all aspects of the surroundings of man (s.4), whether affecting him as an individual or in his social grouping. Whilst this Court has on a number of occasions accepted that the definition is expressed in the widest possible terms, it has, however, rejected claims that the relevant environment of a particular activity should be regarded as the whole of the State or region in order to justify a determination of an "insignificant" likely impact. Whilst in appropriate circumstances it is open to look at the whole undertaking of which the relevant activity forms a part, it must remain a question of fact as to what is the environment for relevant purposes with respect to the proposed activity.

The Forestry Commission regarded the "environment" as the whole area (i.e. more than 8,600ha), and as a working forest and not what it calls a "pristine" one. Its operations and those of its contractors are described as:|CF2.|PSI

"... a form of multiple-purpose rural land use rather than a project-specific, discrete development process, and involves continuing, progressive and cyclic activities over long time frames and large areas of land. Planning for it is done on a much longer cycle than for any other activity and this is part of the relevant environment. The determination of a sustained yield strategy with selective logging, as applies in the present matter, requires a time frame over many years which commenced many years ago, and the delineation of a resource base which will be available over a long period of time. This situation commenced a long time ago and is part of the existing environment. The most relevant contractor, Allen Taylor and Co. Limited, has been operating in the forest for many years and that is part of the relevant environment.

Properly managed forestry involves periodic ecosystem disturbances of a relatively minor nature over a relatively short period of time and this is part of the relevant environment."|CF1.|PSO

The Forestry Commission says it is most relevant that the forest is zoned under the L.E.P. for the proposed activities without the necessity of development consent, and that there are no proposals for inclusion in a park or reserve. However, the fact of the zoning under the L.E.P. for forestry purposes has, in my opinion, little relevance in the resolution of the lawfulness of the determinations by the Forestry Commission. It is the absence of the need for development consent under that instrument which triggers the obligations pursuant to Part V, and compels the decision of the Forestry Commission to be environmentally sensitive.

The logging operations are not intended to be carried out in an environment which is a rainforest, but in a forest which contains pockets of rainforest. It was open to the Forestry Commission to conclude that, to some extent, all relevant localities in the forest have been subject to selective logging, but in my opinion large areas of the steep up river areas could not be described as a "working forest". These areas were previously virtually inaccessible and logging is now only feasible since the introduction of the bulldozer and the chainsaw. However, no reliable post-logging data has been kept and the extent of logging that has occurred and the likely impact of further logging therefore, must be drawn from the opinions of experts on little information. Natural regeneration has and will in time occur over most, if not all of the logged area, particularly in the long term. I accept that it was open to find that creeks in the area have always been susceptible to natural erosion in times of heavy flow, and that

to the present time erosion is largely confined to the general vicinity of extraction areas. I am satisfied that claims of siltation of creeks outside the forest as a direct consequence of logging activities are exaggerated and unfounded. No further major roading is proposed in the forest and it was open to the Forestry Commission to determine that existing roads have already significantly altered the character and nature of the relevant environment.

I am persuaded by the Forestry Commission that most of the above matters describe the nature and extent of the "environment", and also are relevant to determine whether it was reasonably open to it to determine that the subject activities were not likely to "significantly affect" it. There can be no doubt that the subject environment is part of a mature dry sclerophyll forest, with pockets of rainforest, which is generally steep and subject to high rainfall. Notwithstanding previous selective logging and associated works, it is fairly rich in flora and fauna and for relevant purposes could not be described as "depauperate". That is a Forestry Commission term, having relevance only to describe an area of little economic value and poor structural development. In my judgment, it was not open to the Forestry Commission to determine that the relevant environment for the purposes of s.112 in this matter is the whole forest. However, nor would it be merely the individual compartments or land included in harvesting p

lans whose areas do not appear to follow meaningful ecological or geographical boundaries. In my judgment, the Forestry Commission should have determined the relevant "environment" by reference to the area the subject of the licences and harvesting plans, but considered as part of land to be used for the overall activity.

I accept that the proposed operations in the Mistake State Forest will be generally in conformity with the plan of management and, with some exceptions, generally in accordance with the conditions attached to the timber licences and the provisions of the harvesting plans. I also accept that most of the operations will be competently supervised by foresters employed by the Forestry Commission.

I also accept that Forestry Commission officers when supervising logging operations take care to identify and preserve rare, threatened or endangered fauna or flora species, and take what they consider to be appropriate steps to protect their habitat. However, there is no doubt that it is the intention of the Forestry Commission and the loggers at their discretion to remove brush box in areas in close proximity to what normally would be regarded by others as rainforest, and that tracks are likely to be cut through such rainforest areas. The removal of the surrounds to pockets of rainforest, particularly of brush box, is likely to cause some degradation in status to such rainforest and is therefore likely to have an effect on the nature and extent of species therein.

I am fully conscious of the fact that the subject logging activities do not involve either what is known as integrated logging or clear felling operations. However, it is clear that in some areas the logging activities, both initial and follow-up, particularly with group selection, are likely to involve the removal of a large number, if not the majority, of mature trees in a compartment. Such activities must be likely to change significantly the character of the environment and cause a significant change in the age, species and structure of trees therein and, in my judgment, it was not open to the Forestry Commission to determine otherwise.

I accept that to some extent such changes are likely to remain only for what could be described as the short term, and that some of the said operations actually facilitate regrowth, particularly of blackbutt, in this type of forest.

Notwithstanding the challenge by the Forestry Commission, I have no hesitation in accepting Professor McGarity as an expert in respect of matters relating to soil management and likely soil erosion in the subject forest. I prefer his opinions and I am satisfied that the proposed logging operations of the Forestry Commission and the contractors must be likely to pose a substantial threat to landscape stability in the subject area in the longer term. This is a consequence of the potential in this area for rains of high intensity, duration and prevalence on land which has long slopes in the elevated parts of the catchment, and which are potentially readily reactivated, erosion prone drainage systems.

I am satisfied that had the Forestry Commission given "real" consideration to the matter (Parramatta City Council v. Hale, 1982 47 LGRA 319), it would have had no option but to conclude that in the up river forest where the surface soil was removed and the sub-soil exposed it must be likely to be highly erodable, particularly as a result of logging and tracks on slopes over twenty-five degrees. The Standard Erosion Mitigation Conditions imposed on the operations by the Forestry Commission are likely to be unsuitable guidelines for erosion control in the steeper catchments in the Mistake State Forest. I accept the opinion of Professor McGarity that, even if the Standard Erosion Mitigation Conditions were conscientiously applied, it was very doubtful whether they would hold such exposed soils and prevent the formation of gullies and continuing generalised erosion. The Forestry Commission should have been concerned at the incompleteness of knowledge of the soils in the area and particularly the existence of sodi

um clays in the catchments. There is a lack of data regarding the sub-soil stability and dispersiblity of the yellow and red podsolic soils in the catchment, and of the direction of dip of folded rocks which might predispose some slopes to mass movement. I agree that for this purpose there is a need for proper surveys to enable a discharge of the Forestry Commission's duties pursuant to Part V. I would expect an environmental impact statement to provide the data which would enable the Forestry Commission to assess properly the extent of highly dispersible sub-soils in areas proposed for logging activities.

I am therefore of the opinion that it was not reasonably open to the Forestry Commission to determine the subject activities are not likely to significantly affect the environment. It is common ground that, if required, no environmental impact statement complying with the provisions of Part V of the E.P.& A. Act has been prepared with respect to any relevant activity. It follows that in the absence of an environmental impact statement with respect thereto, the Forestry Commission has failed to discharge its duties pursuant to Part V.

The Forestry Commission has, as an alternative, adopted procedures to demonstrate that for the purposes of Part V it has reasonably determined for itself the need for an environmental impact statement with respect to carrying out logging activities, and that it has also discharged its obligations pursuant to s.111.

The duty imposed on the subject determinations by the Forestry Commission under the Forestry Act by s.111 is in the widest of terms and is mandatory. However, the obligation to take into account to the fullest extent possible all matters affecting or likely to affect the environment is not taken literally. The concept has also been derived from N.E.P.A. and decisions of the United States Court of Appeal thereon have been applied in this Court and it will construe the obligation to be to the fullest extent "reasonably practicable"; Guthega Development Pty Limited v. The Minister (supra), and Drummoyne Municipal Council v. Roads and Traffic Authority of N.S.W. (supra).

I accept that all harvesting and road operations within the Mistake State Forest have been subject to not only consideration of economic, but also some environmental factors. The consideration of such matters is said to have been by way of:

1. The Macksville Management Plan 1978, with amendments in 1980, 1982, 1983, 1986 and 1987.

2. Environmental reviews and environmental review check lists.

3. The imposition of Standard Erosion Mitigation Conditions, June 1984.

4. The issue of licences and harvesting plans, with conditions, in accordance with the Forestry Act and Regulations and with the benefit of historical and renewed aerial photography, maps and the local knowledge of foremen and foresters with past experience.

However, some material relied upon was prepared only for the purpose of these proceedings, and not considered in the relevant determinations by the Forestry Commission. In any event, in my opinion, the Management Plan, as amended, was concerned predominantly with economic factors and the environmental reviews are superficial documents. Such documents were inadequate to enable a full and proper consideration of the likely effects of the activities, and neither separately nor collectively with the other material would satisfy the requirements of Part V.

A survey or an assessment of soil or its erodability in steep country was not undertaken, and it is clear that the Forestry Commission has at all relevant times, without review, acted on the erroneous premise that the imposition of the Standard Erosion Mitigation Conditions on licences would be appropriate under all circumstances. No "real" consideration appears to me to have been given to the appropriateness of these Conditions in the up river steep country which is now proposed for logging activities.

No reason was given in these proceedings why practices of the Forestry Commission in other forests, such as the marking of trees to be logged or retained and the planning of snig tracks, are not carried out by it or its foresters in the Mistake State Forest. Neither in the subject harvesting plans nor the licences is the contractor told:

1. Which specific or number of trees may be logged, as distinct from volume of quota logs.

2. Which specific areas are too steep.

3. Which specific areas are rainforest.

4. The width of filter strips.

5. The location of snig tracks.

Such matters were not examined or taken into account by the Forestry Commission at all, and are mostly left to the discretion of the contractor, unless controlled in the field at the discretion of the forester.

Whilst the Forestry Commission might have confidence in its foresters and the contractors to administer and apply its practices and procedures, in my opinion it is in error to approve the activity but leave to those persons the later consideration and determination of important environmental matters. In my opinion, it is clear that the assessment of environmental matters as now required by Part V must be made by the Forestry Commission or its delegate before or at the time of making the relevant determinations. I therefore am unable to discern "real" consideration (Parramatta City Council v. Hale, supra) of environmental factors or to the fullest extent reasonably practicable by the Forestry Commission in accordance with s.111.

Whilst an applicant who has established that a breach of the law has occurred, and that a continuous breach is threatened, is usually entitled to an injunction to restrain that breach, the Court retains a discretion to make orders in the context of disputes "as it thinks fit", or whether any orders should be made at all. Such discretion has been described as being a wide one, not given an unduly restrictive operation, and being just as much a part of the structure and scheme of the E.P.& A. Act for the enforcement of planning laws as are the other parts. The obligations imposed on the Forestry Commission arise from the provisions of a Statute by which Parliament has expressed itself on the public interest. The discretion permits, in appropriate cases, refusal of injunctive relief where to grant it would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation. Relief will be denied if the breach is technical, or is not serious when taken into account in relation t

o the totality of factors the decision maker had to consider.

Relevant authorities and principles applicable to the approach to be taken when exercising discretion are collected and explained by Kirby P. in Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335, at 339-341, ACR Trading Pty Ltd and Anor v. Fat-Sel Pty Ltd and Anor 1987 11 NSWLR 67, at 82. It is clear that the discretion conferred upon the Court should not be used to set aside the new regime imposed by the E.P.& A. Act to make the decisions of a determining authority environmentally sensitive.

There can be no doubt that the growing and winning of timber in this forest promotes the objects of the E.P.& A. Act and is in the public interest (s.5). The subject forest is specifically zoned for such purposes and forestry may be carried out therein without the need for development consent. The forest is not included or proposed to be included in open space areas or public reserves. I accept that the activities are taking place in a forest which has been subject to logging operations over many years, and that there will be further monitoring by expert Forestry Commission officers if such operations are continued. I consider that it is common ground that there will be considerable hardship to contractors, their families and associated persons if logging activities in this forest are terminated or suspended pending the preparation and consideration of an environmental impact statement and a discharge of duties imposed by s.111.

However, whilst I have found a breach by the Forestry Commission of its duties pursuant to Part V to consider an environmental impact statement and to assess properly the likely impact of the proposed activities on the environment, I consider that many of the claims of the applicant are exaggerated or technical or are merely criticism of Forestry Commission practices. I consider that the most serious matter is the likelihood of soil erodability in steep country, nevertheless the adverse effects of erosion from many years of logging activities are in the main localised and continuation thereof is not likely to affect areas outside the forest, except in the long term.

With respect to logging and associated works generally, unless it is acting ultra vires, it is not my function in these proceedings to determine the wisdom or appropriateness of Forestry Commission practices and procedures which are within its general area of expertise, and I do not have the power to exercise my discretion in order to substitute my opinions for those of the determining authority. That it presently is in breach of its duties prescribed by Part V of the Act does not mean that it could not properly approve any or all of the subject activities in the future. I assume that the respondent wishes to continue with logging operations in the Mistake State Forest and that, as a consequence of this judgment, it will now take all necessary steps properly to discharge the duties imposed pursuant to Part V.

I am persuaded that in most parts of this forest it is highly likely, after compliance with those obligations, that it would be open to the Forestry Commission properly to determine that similar logging operations could and should be approved in suitable locations and under appropriate conditions. I consider for that purpose that whilst I should make declarations with respect to the validity of the existing determinations to carry out or approve current logging activities, I should not make orders at this time restraining all logging operations. The parties are therefore requested to bring in Short Minutes of declarations to enable me to give effect to this judgment and, unless the Forestry Commission gives appropriate undertakings, orders which only restrain logging and associated works within identified portions of compartments comprising steep forest, that is, with slopes in excess of twenty-five degrees, pending compliance with the obligations imposed by Part V of the E.P.& A. Act.