North East Forest Alliance Incorporated (Inc1601738) v Forestry Corporation of NSW

[2023] NSWLEC 124

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW [2023] NSWLEC 124

Hearing dates:

14 to 15 August, 7 September 2023

Date of orders:

20 November 2023

Decision date:

20 November 2023

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

Orders at [287]

Catchwords:

JUDICIAL REVIEW – decision to approve operational plans – forestry operations – jurisdiction and justiciability of grounds of review in relation to integrated forestry operations approval – standing to sue under s 69ZA of the Forestry Act 2012 (NSW) – common law test of standing to sue – special interest – admissibility of expert evidence in judicial review proceedings – whether compliance with the conditions of the Coastal Integrated Forestry Operations Approval 2018 a mandatory consideration – whether principles of ecologically sustainable forestry management a mandatory precondition or consideration – whether site specific operating conditions a mandatory precondition or consideration

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW)

Environmental Planning and Assessment Act 1979 (NSW) s 9.45

Environmental Protection Biodiversity Conservation Act 1999 (Cth)

Fisheries Management Act 1994 (NSW) Part 7A

Forestry Act 2012 (NSW) ss 3, 5, 10, 11, 19, 45, 69G, 69L, 69M, 69N, 69NA, 69P, 69Q, 69R, 69RA, 69SA, 69SB, 69ZA

Forestry Legislation Amendment Act 2018 (NSW)

Interpretation Act 1987 (NSW) s 3

Land and Environment Court Act 1979 (NSW) s 20

National Parks & Wildlife Act 1974 (NSW) s 193

Protection of the Environment Administration Act 1991 (NSW) s 6

Protection of the Environment Operations Act 1997 (NSW) ss 120, 219, 252, 253

Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 31.19, 31.20

Cases Cited:

Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360; (1998) 152 ALR 418

Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3

Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200; (1989) 19 ALD 70; [1989] FCA 794

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493; [1980] HCA 53

Australian Heritage Commission v Mount Isa Mines (1997) 179 CLR 297; [1997] HCA 10

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49

Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director (1997) 18 WAR 126; (1997) 94 LGERA 380

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24

Caldera Environment Centre Incorporated v Tweed Shire Council [1993] NSWLEC 102

El Khouri v Gemaveld Pty Limited (2023) 256 LGERA 24; [2023] NSWCA 78

Haughton v Minister for Planning (2011) 185 LGERA 373; [2011] NSWLEC 217

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Initial Action Pty Ltd v Woollahra Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Mundine v Forestry Corporation NSW [2022] NSWLEC 140

Muswellbrook Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26

North Coast Environment Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492; (1994) 85 LGERA 270

North Queensland Conservation Council Inc v Executive Director, Queensland Parks & Wildlife Service [2000] QSC 172

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50

Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46

Ross v Lane (2022) 255 LGERA 136; [2022] NSWCA 235

Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301; (1998) 157 ALR 443

Stanley v Director of Public Prosecutions (NSW) (2023) 407 ALR 222; [2023] HCA 3

Timbarra Protection Coalition v Ross Mining (1999) 46 NSWLR 55; [1999] NSWCA 8

Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158

VicForests v Kinglake Friends of the Forest Inc (2021) 395 ALR 367; (2021) 248 LGERA 28; [2021] VSCA 195

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Texts Cited:

Coastal Integrated Forestry Operations Approval 2018 (published by NSW Environment Protection Authority, November 2018)

Mark Aronson et al, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Thomson Reuters (Professional) Australia Limited)

Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2000, The Federation Press)

Category:

Principal judgment

Parties:

North East Forest Alliance Incorporated (INC 1601738) (Applicant)
Forestry Corporation of NSW (Respondent)

Representation:

Counsel:
M R Hall SC with N Hammond and P Hart (Applicant)
I Hemmings SC with J McKelvey (Respondent)
Solicitors:
Environmental Defenders Office (Applicant)
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2023/239296

Publication restriction:

Nil

JUDGMENT

Introduction

NEFA’s notice of motion seeking interlocutory relief, and FCNSW’s undertakings

FCNSW’s notice of motion seeking summary dismissal

The hearing on 14 August and 7 September 2023

Outcome of the Class 4 proceedings

Factual background

Relevant provisions of the Forestry Act

The CIFOA

The parties’ evidence

Documentary evidence

Lay evidence

Expert evidence

Solicitor evidence

The summary dismissal motion: the question of NEFA’s standing to bring the proceedings

NEFA’s submissions in relation to its standing to bring the proceedings

NEFA’s submissions in relation to statutory open standing provisions

FCNSW’s submissions in relation to open standing in environmental laws generally

NEFA’s submissions in relation to the common law test for standing in Australian Conservation Foundation v The Commonwealth

Connections between organisation and the particular local environment

Long history of involvement and influence

Connection to the subject matter – environmentally sustainable forest management

Recognition by State and federal government bodies

Local community engagement

The importance of the environmental issue in question

FCNSW’s submissions in relation to the common law test for standing in Australian Conservation Foundation v The Commonwealth, and generally in relation to NEFA’s standing

Conclusions in relation to NEFA’s standing to bring the proceedings

The Court’s jurisdiction in relation to NEFA’s grounds of challenge

NEFA’s submissions in relation to the Court’s jurisdiction

FCNSW’s submissions in relation to the Court’s jurisdiction

Conclusions in relation to the Court’s jurisdiction/justiciability

Admissibility of expert evidence in relation to Grounds 1 and 3

NEFA’s submissions in relation to the admissibility of expert evidence, and whether there arises a jurisdictional fact

FCNSW’s submissions in relation to expert evidence in judicial review proceedings

Conclusions in relation to the admissibility of expert evidence

Ground 1: Condition 14 of the CIFOA - the principles of ESFM as a mandatory precondition or consideration, an operative condition or an objective

NEFA’s submissions in relation to Ground 1

FCNSW’s submissions in relation to Ground 1

Conclusions in relation to Ground 1

Ground 2 – Mandatory consideration: Capacity to comply with the conditions of the CIFOA

NEFA’s submissions in relation to Ground 2

FCNSW’s submissions in relation to Ground 2

Conclusions in relation to Ground 2

Ground 3: Failure to comply with condition 23.4 and Protocol 5 in relation to obtaining SSOCs

NEFA’s submissions in relation to Ground 3

NEFA’s first proposition: the SSOC preconditions are necessary preconditions to the SSOC process

NEFA’s second proposition: the SSOC preconditions were met in relation to the Braemar and Myrtle State Forests

NEFA’s third proposition: FCNSW must seek SSOCs where either or both SSOC preconditions are met and it seeks to conduct forestry operations

NEFA’s fourth proposition: the SSOC process relates to the approval of HHPs as they authorise forestry operations

NEFA’s fifth proposition: FCNSW’s failure to seek SSOCs prior to approving the HHPs results in invalidity

FCNSW’s submissions in relation to Ground 3

Conclusions in relation to Ground 3

Materiality

NEFA’s submissions in relation to materiality

FCNSW’s submissions in relation to materiality

Conclusions in relation to materiality

Conclusions

Costs

Orders

JUDGMENT

Introduction

1. These Class 4 judicial review proceedings concern the decisions of the respondent, Forestry Corporation NSW (FCNSW), by its planning supervisor Mr Matthew Howat, to approve the following “operational plans” within the meaning of condition 53 of the Coastal Integrated Forestry Operations Approval 2018 (CIFOA) granted under Part 5B of the Forestry Act 2012 (NSW) (Forestry Act) for the purpose of carrying out forestry operations:

1. Braemar 006 and 007 post-fire HHP 2023 (Harvest and Haul Plan 200002336) first approved on 29 March 2023 and subsequently varied on 30 May 2023 (the Braemar HHP); and

2. Myrtle 010-016 post-fire HHP 2023 (Harvest and Haul Plan 200001995) approved on 16 May 2023 (the Myrtle HHP).

2. An operational plan is a document which must be prepared by FCNSW under condition 53 of the CIFOA before forestry operations authorised under the CIFOA can commence to be carried out. The CIFOA came into effect upon execution by the then Minister for the Environment and the then Minister for Lands and Forestry on 16 November 2018. Mr Howat was the relevant FCNSW planning supervisor who “approved and dated” the Braemar HHP and the Myrtle HHP in accordance with condition 53.4(c) of the CIFOA.

3. There are some 40 protocols to the CIFOA compiled by the NSW Environmental Protection Authority (EPA) (the protocols) which support various requirements in the CIFOA and are to be read in conjunction with the CIFOA and with any relevant statutory provisions: Protocol 1 “Scope and Interpretation” condition 1.1(2). Condition 5.1 of the CIFOA provides that:

5.   Protocols

5.1   This approval applies and adopts the protocols, as amended, made public, and in force from time to time.

5.2   A register of protocols is set out in Part 2 of Schedule 1.

5.3   FCNSW must apply, and comply with, a protocol where required by the approval or by another protocol.

4. By summons filed Thursday, 27 July 2023, the applicant, North East Forest Alliance Incorporated (INC1601738) (NEFA), seeks declarations that each of the Braemar HHP and the Myrtle HHP is invalid and of no effect, orders quashing the purported decisions to approve the plans, and orders restraining FCNSW from proceeding in reliance on them.

5. In summary, NEFA’s grounds of challenge are as follows:

1. Each of the Braemar HHP and the Myrtle HHP fails to address matters that are mandatory pre-conditions to the exercise of the power to approve an operational plan in accordance with condition 53 of the CIFOA:

1. specifically condition 14.1 of the CIFOA which requires that forestry operations be carried out in accordance with the principles of ecologically sustainable forestry management (ESFM); and

2. operational requirements in sufficient detail to enable the person proposing to undertake forestry operations to comply with the conditions of the CIFOA, specifically condition 14.1 (Ground 1).

2. Further and in the alternative to Ground 1, in purporting to approve the Braemar HHP and the Myrtle HHP, FCNSW (Mr Howat) failed to consider a mandatory relevant consideration, namely the ability of a person to carry out forestry operations in accordance with the principles of ESFM (Ground 2).

3. FCNSW (Mr Howat) had no power to approve the Braemar HHP and the Myrtle HHP in circumstances where following bushfires that took place in NSW in 2019/2020 (the 2019/2020 bushfires), the circumstances described in condition 23.4 of the CIFOA were engaged, requiring FCNSW to comply with the requirements of condition 23.4 and Protocol 5 to the CIFOA in relation to obtaining site-specific operating conditions (SSOCs), but failed to do so (Ground 3).

6. The hearing of this matter took place between Monday, 14 and Tuesday, 15 August 2023. The proceedings were then stood over to enable the parties to file written closing submissions, and to appear before the Court on Thursday, 7 September 2023 to address the Court in closing.

7. On Thursday, 7 September 2023, NEFA was granted leave, with the consent of FCNSW, to file in court an amended summons.

NEFA’s notice of motion seeking interlocutory relief, and FCNSW’s undertakings

8. By notice of motion filed on Thursday, 27 July 2023, NEFA sought the following interlocutory relief (the injunction motion):

1   The time for service of the Summons herein is abridged to 4 pm on [28 July 2023].

2   Service of the Summons, the Notice of Motion dated 27 July 2023, the affidavits of Kimberley Hutchinson and of Dailan Pugh both made on 27 July 2023 and the exhibits thereto may be effected by emailed electronic copies to the email addresses of Alix Cameron, General Counsel of FCNSW...

3   FCNSW be restrained, until the claim is determined or until further order, from conducting or authorising the conduct of any forestry operation:

a. In compartments 06 and/or 07 of the Braemar state forest in reliance on the Harvest and Haul Plan number 200002336 dated 30 May 2023 or any harvest and haul plan to like effect; and

b. In compartments 10 to 16 inclusive of the Myrtle state forest in reliance on the Harvest and Haul Plan number 200001995 dated 16 May 2023 or any harvest and haul plan to like effect.

4   FCNSW pay NEFA’s costs of the motion dated 27 July 2023.

5   Order 3 be entered immediately and a sealed copy of the order as entered be released to NEFA for service.

9. On Friday, 28 July 2023, Robson J as duty judge made Orders 1 and 2. The need for the relief sought in Order 3 to be determined on that occasion was removed as FCNSW gave a limited undertaking to NEFA to suspend harvesting operations under the Braemar HHP and the Myrtle HHP until close of business on 2 August 2023, being the next listing date. On Wednesday, 2 August 2023, FCNSW provided a further undertaking to suspend harvesting operations under the Braemar HHP and the Myrtle HHP until Monday, 14 August 2023, being the date of the commencement of the hearing before me.

10. On Monday, 14 August 2023, FCNSW extended its undertaking to NEFA until 15 August 2023. On Tuesday, 15 August 2023, FCNSW informed the Court that it would extend its undertaking until the delivery of judgment in this proceeding. Therefore, it does not arise for me to determine the injunction motion.

FCNSW’s notice of motion seeking summary dismissal

11. By notice of motion filed on Tuesday, 1 August 2023, FCNSW sought the following orders (the summary dismissal motion):

1 Pursuant to rule 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), the whole of the proceedings are summarily dismissed.

2 In the alternative, pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the whole of NEFA’s Summons be struck out.

3   NEFA pay FCNSW’s costs of the motion.

4   Such further or other orders as the Court deems fit.

The hearing on 14 August and 7 September 2023

12. At the hearing on Monday, 14 August 2023, FCNSW agreed that the Court should deal with its summary dismissal motion together with the determination of the substantive proceedings.

13. At the hearing on 14 and 15 August and 7 September, and in written submissions, there was ventilated by the parties the issue raised by FCNSW’s summary dismissal motion of NEFA’s standing to bring the proceedings and the issue of the Court’s jurisdiction to hear and determine the proceedings.

Outcome of the Class 4 proceedings

14. There were filed lengthy written submissions by both parties. These voluminous submissions have been summarised in these reasons for judgment.

15. In summary, I have determined as follows:

1. In relation to the question of NEFA’s standing, NEFA has standing at common law to bring the proceedings.

2. In relation to the question of the Court’s jurisdiction, the decision of a FCNSW planning supervisor to approve an operational plan made pursuant to the embedded authority in condition 53 of the CIFOA enlivens the power of the Court to entertain an application for judicial review of the decision.

3. In relation to the admissibility of expert evidence, the evidence of neither expert is relevant to the issues raised in the proceedings and is inadmissible. Expert evidence is sought to be relied on by NEFA in relation to each of Grounds 1 and 3, and NEFA contends that each of those grounds raises a jurisdictional fact. I have concluded that neither of those grounds raises a jurisdictional fact and that, in any event the expert evidence would not assist in the determination of any such jurisdictional fact.

4. In relation to Ground 1, condition 14.1 is an objective of the CIFOA and not an operative condition. Consideration of the achievement of the principles of ESFM in the making of an operational plan is not a jurisdictional fact to be determined by the Court with the function of reviewing a decision of FCNSW to approve an operational plan.

5. In relation to Ground 2, the effect of condition 53 of the CIFOA is not to make the capacity of a person carrying out a proposed forestry operation to comply with the CIFOA in the manner contended by NEFA a mandatory consideration. In particular, I do not consider that condition 14 which sets out the general objectives of the approval is a mandatory consideration in the determination by the FCNSW planning supervisor to approve an operational plan.

6. In relation to Ground 3, condition 23.4 of the CIFOA required FCNSW to comply with the requirements of condition 23.4 and Protocol 5 to the CIFOA in relation to obtaining site-specific operating conditions. NEFA has not established that the process of obtaining site-specific operating conditions applies to the approval of operational plans which authorise forestry operations. Properly construed, each of conditions 53 and 23 of the CIFOA involves a distinct exercise of power. Nor are circumstances referred to in the chapeau to condition 23.4 jurisdictional facts.

Factual background

16. The following factual background is derived from an agreed chronology and supplemented by the material in the evidence book filed in the proceedings.

17. On 5 June 1989, NEFA was formed. NEFA’s key aims were “to protect old growth forest, wilderness, rainforests and threatened species in the [N]orth [E]ast of NSW”. NEFA did not become an incorporated association until 26 November 2016. The objectives of the incorporated association were agreed by its members to be as follows:

• To work for the protection of the public native forests of Northeast NSW.

• To campaign to protect:

— old growth, old hollow-bearing trees,

— rainforests, rare forest ecosystem types,

— wilderness,

— threatened species and their habitat,

— the capacity of native forests of Northeast NSW to supply clean and abundant water.

• To promote the urgent necessity of restoring the carbon storage capacity of native forests of Northeast NSW to mitigate climate change.

• To raise public awareness of the values of Northeast NSW native forests and to foster research into same.

• To support other groups working to conserve native forests in other areas.

• To audit and monitor forest operations and

• To be committed to non-violent action to persons and property in the pursuit of our goals.

18. On 16 November 2018, the Minister for the Environment and the Minister for Lands and Forestry granted the CIFOA pursuant to Part 5B of the Forestry Act.

19. On 20 August 2019, and prior to the 2019/2020 bushfires, Mr Matthew Kinny of FCNSW approved Braemar 006-007 HHP, plan ID HP_BRAEMAR_BRA007_2019 (2019 Braemar HHP). It was common ground that the forestry operations the subject of these proceedings did not commence to be carried out under the 2019 Braemar HHP.

18. Between October and December 2019, the 2019/2020 bushfires commenced. The Braemar and Myrtle State Forests were severely burnt as a result of the 2019/2020 bushfires. According to a report prepared by the NSW Natural Resources Commission (NRC), titled “NSW Forest Monitoring and Improvement Program: Insights for NSW forest outcomes and management”, dated November 2022, (November 2022 NRC report) the 2019/2020 bushfires “were unprecedented in their extent and severity, resulting in the largest total area burnt in a single recorded fire season in eastern Australia”. The 2019/2020 bushfires “also had extensive impacts on the habitat of hundreds of species”.

19. On 13 December 2019, upon the request of the EPA, FCNSW ceased forestry operations in the CIFOA Region (as defined in condition 12 at [59] below). FCNSW and the State of NSW were “signatories to the majority of long-term hardwood supply contracts in coastal NSW”, and enacted the force majeure provisions in those supply contracts across all hardwood coastal supply areas. According to a letter of 7 September 2020 from Mr Gary Barnes, secretary of the Department of Regional NSW and Mr Anshul Chaudhary, acting chief executive officer of FCNSW, to Ms Tracy Mackey, chief executive officer of the EPA (the 7 September 2020 letter), on 13 December 2019 the EPA requested of FCNSW that “forestry operations not occur in forest burnt since August 2019 until [there was agreement] on additional environmental controls”.

20. On 14 May 2020, FCNSW approved Myrtle 010-016 post fire HHP 2020, plan ID HP_MYRTLE_10_11_12_13_14_15_16_2019 (2020 Myrtle HHP) for forestry operations in compartments 10 to 16 of the Myrtle State Forest. The 2020 Myrtle HHP made references throughout to SSOCs granted by the EPA. It was common ground that FCNSW ultimately did not proceed with the forestry operations pursuant to the 2020 Myrtle HHP.

21. Throughout 2020, FCNSW attempted to negotiate further SSOCs with the EPA but considered the negotiations to have “proven almost impossible”. In or around September 2020, FCNSW withdrew its notice of force majeure on the contracts for timber supply and harvest and haulage in the CIFOA Region. In the 7 September 2020 letter, Mr Barnes of the Department of Regional NSW and Mr Chaudhary of FCNSW wrote to the EPA stating (emphasis added):

All involved in this process have acknowledged that developing and operating under the SSOC is challenging and time consuming and is providing neither a landscape approach to environmental protections as envisaged by the CIFOA, nor sufficient harvesting sites to meet industry requirements.

The restricted timber supply means significant impacts on the hardwood industry are now imminent, with only a few weeks remaining before job losses are expected. It is expected that 155 direct jobs are at risk of being lost over the next few months in the south coast and Eden regions. By the end of 2020, a further 460 direct hardwood industry jobs will be under threat on the north coast. The impact is expected to be two to three times greater accounting for indirect employment.

FCNSW and the State of NSW are signatories to the majority of long-term hardwood supply contracts in coastal NSW. The Force Majeure provisions in those contracts have been enacted across all hardwood coastal supply areas. However, when FCNSW is able to operate under and comply with the CIFOA it is legally obliged to do so in order to meet supply commitments.

There has now been substantial recovery post-fire in many coastal State forests. The key challenges that led to FCNSW seeking SSOC under the CIFOA have now largely dissipated. Forest ground cover has regenerated sufficiently to manage soil and water risks and overhead tree hazards have now stabilised enabling survey and mark-up to be safely undertaken. For that reason FCNSW intends to return to harvesting in September 2020, under the standard requirements of the CIFOA in fire-affected forests where SSOC have not yet been issued. This transition will occur progressively over the next few months.

24. In response to the 7 September 2020 letter, by letter of 22 September 2020, Ms Mackey of the EPA said:

It is the view of the EPA that the unprecedented fires of 2019/20 have significantly impacted the environmental values of the state forests of coastal NSW. Subsequent timber harvesting in areas impacted by fire pose a major environmental risk to the extent that ecologically sustainable forest management (ESFM), as required under the NSW Forestry Act 2012, is unlikely to be achievable under a business-as-usual approach. It is for this reason that the EPA has been working with FCNSW and NSW agencies to ensure forestry operations are subject to additional conditions to mitigate their impacts. As you note this has not been easy, but this does not mean it should be abandoned.

…

The EPA commissioned an independent report by Dr Andrew Smith, an experienced and well-respected forest ecologist, to examine the CIFOA and the site-specific operating conditions in the context of the environmental risks of harvesting timber in burnt landscapes. The report also considered the principles of ESFM and the precautionary principle.

…

The findings of Dr Smith’s report, in conjunction with more current information used to support the development of site-specific prescriptions and operational advice from EPA officers working in areas affected by the bushfires has informed the EPA’s position that a return to operating under the CIFOA alone in all areas of the State as you propose is not tenable at this time. The EPA is keen to ensure that the principles of ESFM are applied, including maintaining a range of forest values for future and present generations. The EPA is concerned that; your proposal may not achieve these principles.

The EPA is further concerned that your proposal does not adopt best-available knowledge and adaptive management practices and does not appear to be consistent with the precautionary principle, which has never been more relevant. The EPA has a statutory objective to protect, restore and enhance the quality of the environment in NSW having regard to the need to maintain ecologically sustainable development. In this context I am currently considering regulatory options to ensure the risk to the environment continues to be appropriately addressed.

25. In or around February 2021, FCNSW developed a set of voluntary conditions titled “FCNSW Rationale for short term operations under the CIFOA with additional environmental safeguards while the NRC charts a long-term pathway to return to the CIFOA” (the voluntary conditions). The voluntary conditions related to the South Coast region of NSW, and provided under the heading “Alternative FCNSW model – CIFOA with additional environmental safeguards for the short-term” as follows (emphasis added):

104. FCNSW has assessed the conditions proposed by the EPA in response to the Smith Report and determined that there are some that can be supported by relevant evidence and can be practically applied or adapted in the context of the FCNSW Report. FCNSW believes that these conditions can both uphold the requirements of the precautionary principle and still meet reasonable timber supply requirements during 2021.

105. Ongoing landscape-scale monitoring surveys undertaken by FCNSW staff are providing strong evidence of recovery in many forest areas, including survival and recovery of critical flora and fauna populations.

106. FCNSW has developed a robust alternative to the current SSOC process that applies as a basis the [sic] standard CIFOA, supplemented with additional precautionary conditions to mitigate potential impacts in the short term…

107. In order to meet the equally weighted statutory objectives of supplying timber to industry and supporting regional communities in an environmentally sustainable manner, FCNSW needs immediate certainty to plan under a framework that adequately reflects the post Bushfires environment and provides a guaranteed minimum level of timber supply for the industry to survive in the short term. Without immediate certainty it will not be possible to manage imminent small business closures and the flow-on effects in regional NSW communities already adversely affected by the Bushfires themselves. This would be an unacceptable outcome under the NSW RFAs and Forestry Act objectives.

108. A risk assessment and SWOT analysis for the options of remaining engaged in negotiations with the EPA towards SSOC or using a revised FCNSW model for CIFOA augmented by additional environmental safeguards, has been undertaken and is included in Attachment 1.

109. It is proposed that this model be applied across the Eden, south coast and Tumut sub regions. The existing EPA process of risk assessments and approval of SSOCs would not be required as the voluntary additional environmental safeguards would be applied to all operations in these areas as a precautionary measure.

…

116. FCNSW appreciates that the additional environmental safeguards are voluntary. However, adherence to these additional environmental safeguards can be enforced through FCNSW’s contracts and licences with harvesting operators and FCNSW intends to gather data on their implementation and compliance and provide that to the EPA as it would with CIFOA requirements in the normal course…

117. This is an interim step which provides a framework for the timber industry to continue operating in the short term pending the NRC advice and the resultant pathway forward. FCNSW appreciates that this was the original intention of the SSOC process however the lack of emphasis on social and economic values of sustainable forest management outcomes; changing landscape of potential conditions; and lack of certainty on timeframes and deliverables has rendered this process unworkable…

26. After developing the voluntary conditions, FCNSW commenced forestry operations in Eden in March 2021 and the South Coast of the CIFOA Region in April 2021, “with additional environmental safeguards put in place in recognition of the impacts of the 2019-2020 bushfires”.

27. By letter dated 17 March 2021, Ms Mackey of the EPA responded to FCNSW’s decision to recommence logging operations under voluntary conditions in the following terms (emphasis added):

Although FCNSW proposes to apply a series of voluntary protection measures in addition to the CIFOA conditions, these measures are not enforceable, and the EPA will not endorse such an approach. The EPA maintains the position outlined in its letter of 15 February 2021 that site specific operating conditions (SSOC) are essential to ensuring harvesting activities in fire-impacted forests are carried out to meet ecologically sustainable forest management (ESFM), the legislative framework and relevant Regional Forest Agreements (RFA).

…

The EPA remains committed to the National Resources Commission (NRC) review approach, which will inform a longer-term decision on forestry operations. Until then, the EPA’s expectation is that the precautionary principle is applied to forestry practices in NSW. The EPA reiterates its position that the combined impacts of fire and post-fire logging warrants careful management and that SSOC are the best way of ensuring ESFM.

28. In May 2021, FCNSW’s timber supply to its contractors on the North Coast was “around 34,000 cubic metres below sawlog contracts”. The supply source from hardwood plantations was “largely…exhausted with remaining plantations needing further time to grow to maturity”.

29. FCNSW developed two further voluntary conditions:

1. the first in or around July 2021, titled “Addendum – Forestry Corporation Rationale for operations under the CIFOA with additional environmental safeguards” (addendum to voluntary conditions); and

2. the second in or around October 2021, titled “Post Fire Voluntary Environmental Safeguards ‐ Update to Rationale North Coast” (North Coast voluntary conditions). These North Coast voluntary conditions expressly addressed the North Coast of the CIFOA Region in which the Myrtle and Braemar State Forests are situated, and are referred to in each of the Myrtle and Braemar HHPs.

30. On 24 February 2023, NEFA wrote to the EPA in relation to proposed forestry operations in the Doubleduke State Forest, NSW and ecological risks to the forests in response to the 2019/2020 bushfires. On 27 March 2023, NEFA received a response from Mr Tony Chappel, chief executive officer of the EPA, as follows:

Site-specific operating conditions (SSOC's) under clause 23 of the Coastal Integrated Forestry Operations Approval (CIFOA) can only be issued by the EPA at the specific request of the Forestry Corporation of NSW (FCNSW). As you are aware, FCNSW elected to stop requesting SSOCs in late 2020 and return to operating under the CIFOA. All SSOCs including those issued by the EPA for Doubleduke State Forest have now lapsed.

31. On 29 March 2023, Mr Howat of FCNSW approved Braemar 006-007 post fire HHP 2023, plan ID 200002336 for forestry operations in compartments 6 and 7 of the Braemar State Forest (initial Braemar HHP).

32. On 16 May 2023, Mr Howat of FCNSW approved the Myrtle HHP for forestry operations in compartments 10 to 16 of the Myrtle State Forest. The Myrtle HHP included some of the North Coast voluntary conditions but did not make specific reference to any of the SSOCs previously granted by the EPA for forestry operations pursuant to the 2020 Myrtle HHP.

33. On 30 May 2023, Mr Howat approved a variation to the initial Braemar HHP, thereby making the Braemar HHP. The Braemar HHP included some of the North Coast voluntary conditions. The document varying the Braemar HHP, titled “Variation to Operational Plan”, identified the following “[o]perational plan conditions / prescriptions to be amended”:

1. Modify various sections of 5. Operational Responsibilities and 7. ESA & Other Sensitive Areas sections of plan to align with intention of ecology report and current mark-up requirements SOP.

2. Update riparian protection table to reflect correct requirements for protection of unmapped and class 1 drainage lines.

34. On 27 July 2023, NEFA commenced these Class 4 proceedings.

35. On 3 August 2023, the EPA updated its webpage “Bushfire-affected forestry operations” to provide, under the heading “EPA’s current position on forestry operations in fire affected forests” as follows:

We continue to advocate that FCNSW obtain site-specific operating conditions in areas recovering from the 2019/20 wildfires. This approach will ensure that harvesting activities in fire-impacted forests are carried out in an ecologically sustainable manner, and therefore meet the requirements of the Forestry Act 2012, the CIFOA and relevant Regional Forest Agreements.

36. On 3 August 2023, the EPA also updated its webpage “Status of operations in bushfire-affected forests” to provide as follows:

We continue to advocate that FCNSW obtain site-specific operating conditions in areas recovering from the 2019-20 wildfires.

On 10 February 2021 Forestry Corporation of NSW (FCNSW) advised us that they would be returning to regular operations under the Coastal IFOA (CIFOA) in fire-impacted forests. They further advised that they may implement additional voluntary measures to the requirements of the CIFOA if they consider they are required. We are not aware of what these voluntary measures are, and we will not be able to regulate against them.

Relevant provisions of the Forestry Act

37. The current structure of regulation of forestry operations in New South Wales was introduced by amendments to the Forestry Act effected by way of the Forestry Legislation Amendment Act 2018 (NSW). In Part 5B of the Forestry Act as amended, s 69M permits the granting of “integrated forestry operations approvals” (IFOAs). IFOAs may only be granted jointly by the Minister for the Environment and the Minister for Lands and Forestry (s 69N(1)).

38. FCNSW is constituted a corporation by s 5 of the Forestry Act. Section 10(1) provides that the principal objectives of FCNSW are as follows:

(a) to be a successful business and, to this end—

(i) to operate at least as efficiently as any comparable businesses, and

(ii) to maximise the net worth of the State’s investment in the Corporation,

(b) to have regard to the interests of the community in which it operates,

(c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991,

(d) to contribute towards regional development and decentralisation,

(e) to be an efficient and environmentally sustainable supplier of timber from Crown-timber land and land owned by it or otherwise under its control or management.

39. In accordance with s 10(2) each of the principal objectives of FCNSW is of equal importance. Section 11(1) of the Forestry Act specifies the principal functions of FCNSW, including in s 11(1)(a) to “carry out or authorise the carrying out of forestry operations in accordance with good forestry practice on Crown-timber land or land owned by the Corporation”.

40. The expression “forestry operations” is defined in s 3 of the Forestry Act as:

(a) logging operations, namely, the cutting and removal of timber from land for the purpose of timber production, or

(b) the harvesting of forest products, or

(c) ongoing forest management operations, namely, activities relating to the management of land for timber production such as thinning, burning and other silvicultural activities and bush fire hazard reduction, or

(d) ancillary activities to enable or assist in the above operations such as the provision of roads, snig tracks, waterway crossings and temporary timber storage facilities.

41. In Part 5B, “integrated forestry operations approvals” s 69M provides in relation to the granting of IFOAs for the carrying out of forestry operations to which Part 5B applies:

69M   Granting of approvals

(1)  Approval for the carrying out of forestry operations to which this Part applies may be granted under this Part. Such an approval is called an integrated forestry operations approval.

(2)  This Part does not prevent or affect the carrying out of forestry operations authorised by or under any other provision of this Act or any other Act or law. However, the carrying out of forestry operations to which an integrated forestry operations approval applies is subject to the terms of the approval.

42. Section 69N provides further in relation to the granting of IFOAs:

69N   Approvals to be granted jointly by relevant Ministers

(1)  An integrated forestry operations approval may only be granted jointly by the Minister for the Environment and the Minister for Lands and Forestry.

(2)  An integrated forestry operations approval is to be in writing signed by those Ministers.

(3) Before granting an integrated forestry operations approval, the Minister for the Environment and the Minister for Lands and Forestry are required to consult the Minister administering Part 7A of the Fisheries Management Act 1994.

43. Section 69L(1) provides as follows in relation to the purpose of IFOAs:

69L Purpose of integrated forestry operations approvals

(1) The purpose of this Part is to provide a framework for forestry operations to which this Part applies—

(a) that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and

(b) that integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.

44. Section 69L(2) proves the following definition of principles of ESFM:

principles of ecologically sustainable forest management means the following—

(a) maintaining forest values for future and present generations, including—

(i) forest biological diversity, and

(ii) the productive capacity and sustainability of forest ecosystems, and

(iii) the health and vitality of native forest ecosystems, and

(iv) soil and water quality, and

(v) the contribution of native forests to global geochemical cycles, and

(vi) the long term social and economic benefits of native forests, and

(vii) natural heritage values,

(b) ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations,

(c) providing incentives for voluntary compliance, capacity building and adoption of best-practice standards,

(d) applying best-available knowledge and adaptive management processes to deliver best-practice forest management,

(e) applying the precautionary principle (as referred to in section 6(2)(a) of the Protection of the Environment Administration Act 1991) in preventing environmental harm.

45. Section 69P provides in relation to the terms of an IFOA:

69P Terms of approval

(1) An integrated forestry operations approval is to describe the forestry operations covered by the approval, including a description of the area of the State to which it applies.

(2) An integrated forestry operations approval is—

(a) to make provision for or with respect to the carrying out of forestry operations covered by the approval, and

(b) to set out conditions subject to which those forestry operations are to be carried out, including conditions that may be imposed under any of the following—

(i) a biodiversity conservation licence under the Biodiversity Conservation Act 2016,

(ii) a licence under Part 7A of the Fisheries Management Act 1994,

(iii) an environment protection licence under the Protection of the Environment Operations Act 1997.

(3) An integrated forestry operations approval may apply or adopt protocols, codes, standards or other instruments that are publicly available and in force from time to time.

(4) Without limiting subsection (3), any such protocols may include those prepared by the Environment Protection Authority.

46. Section 69Q(1) provides that “[a]n [IFOA] has effect for the period (not exceeding 20 years) specified in it, unless sooner revoked”.

47. Section 69R(1) provides that “[a]n [IFOA] may be amended, suspended or revoked at any time jointly by the Ministers authorised to grant the approval.” Section 69RA(1) provides that “[b]efore an [IFOA] is amended or revoked, public consultation on the proposed amendment or revocation is to be undertaken.”

48. Section 69SA(1) provides that “[a] person who contravenes a requirement imposed by an [IFOA] is guilty of an offence.”

49. As to enforcement of IFOAs, s 69SB provides that “[t]he [EPA] has the function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of [IFOAs].”

50. Section 69ZA provides as follows in relation to the commencement of proceedings by third parties:

69ZA   Application of statutory provisions relating to proceedings by third parties

(1)  This section applies to the following statutory provisions—

(a) section 252 or 253 of the Protection of the Environment Operations Act 1997,

(b)  a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach (or a threatened or apprehended breach) of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach,

(c) section 219 of the Protection of the Environment Operations Act 1997.

(2)  Proceedings may not be brought under a statutory provision to which this section applies if the breach (or threatened or apprehended breach) to which the proceedings relate is as follows—

(a)  a breach of this Part (including a breach of any forest agreement),

(b)  a breach of an integrated forestry operations approval,

(c)  a breach of an Act or law that arises because any defence provided by an integrated forestry operations approval is not available as a result of a breach of the approval,

(d)  a breach of the Act that includes the statutory provision (including a breach of an instrument made under that Act) if the breach relates to forestry operations to which an integrated forestry operations approval applies.

(3)  This section does not apply to any proceedings brought by—

(a)  a Minister, or

(b)  the Environment Protection Authority or a member of the staff of the Authority, or

(c)  in the case of the provision of an Act referred to in subsection (1)(b)—a government agency or any government official engaged in the execution or administration of the Act.

The CIFOA

51. The text in relation to the granting of the CIFOA of approval to carry out forestry operations provides:

We, the undersigned Ministers, pursuant to Part 5B of the Forestry Act 2012:

1. revoke the Integrated Forestry Operations Approval for the Eden Region, the Integrated Forestry Operations for the Southern Region, the Integrated Forestry Operations Approval for the Upper North East Region and the Integrated Forestry Operations Approval for the Lower North East Region; and

2. grant approval for the carrying out of forestry operations in accordance with the conditions of this approval (the Integrated Forestry Operations Approval for the Coastal Region),

upon the later of the two dates on which this instrument is signed by the Ministers, or if the instrument is signed by both Ministers on the same date, on that date of signing.

52. In Chapter 1 of the CIFOA, in Division 1 condition 3.1 provides in relation to the interpretation of the CIFOA as follows:

3. General interpretation rules

3.1 The approval, and each protocol, is to be interpreted in accordance with the General Interpretation Rules set out in Part 1 of Schedule 1.

53. In Part 1 of Schedule 1, condition 124.1 provides that “in the approval and in each protocol, unless expressed to the contrary, a reference to: (e) the approval is to the approval as amended from time to time” and “(f) any protocol is to the protocol as amended from time to time”.

54. Condition 5.1 also provides that the CIFOA “applies and adopts the protocols, as amended, made public, and in force from time to time”. Condition 5.3 provides:

5.3 FCNSW must apply, and comply with, a protocol where required by the approval or by another protocol.

55. In relation to construing the CIFOA, condition 7 provides:

7. Most stringent condition applies

7.1 FCNSW must comply with the conditions of the approval and the protocol, as applicable.

7.2 If in a specific circumstance or location, more than one requirement of the approval or a protocol applies, the most stringent of the requirements must be complied with.

7.3 If it is unclear which requirement is the most stringent, FCNSW must seek advice in writing from the EPA on which requirement must be complied with, and comply with that requirement.

56. The terms of the CIFOA are set out in Division 2 of Chapter 1.

57. In relation to the duration of the CIFOA, condition 11.2 provides that “[t]he approval has effect for a period of 20 years from the commencement of the approval, unless otherwise revoked by the Ministers.”

58. Condition 12.1 identifies the area to which the CIFOA applies as follows:

12.1 The approval applies within the State of NSW to State Forest and other Crown-timber land within the Coastal IFOA Region subject to condition 12.2 below.

59. The “Coastal IFOA Region” is defined in Protocol 39 “Definitions” (which was approved by the EPA Chair and CEO on 31 October 2018) as “State Forest and other crown-timber lands to which the approval applies, and which is mapped in the ‘Coastal IFOA Region’ spatial dataset”.

60. Condition 13.1 identifies the forestry operations covered by the CIFOA. The operations authorised by the CIFOA include “(a) harvesting operations that are… (i) selective harvesting for the production of timber”.

61. Condition 14 specifies the general objectives of the CIFOA as follows:

14. General objectives of the approval

14.1 The overall objective of the approval is to authorise the carrying out of forestry operations set out in condition 13 above:

(a) in accordance with the principles of ecologically sustainable forest management;

(b) in a manner which integrates the regulatory regimes for:

(i) environmental planning and assessment;

(ii) the protection of the environment; and

(iii) threatened species conservation and biodiversity;

(c) in accordance with the conditions of this approval and the protocols, as applicable.

62. Condition 15 specifies specific objectives of the CIFOA. There are specific objectives in relation to threatened species (condition 15.1 and 15.3), including ensuring that practical measures are taken to protect the aquatic environment and waters from the impacts of water pollution caused by forestry operations (condition 15.2), and “ensuring the ongoing monitoring, evaluation, reporting and improvement of the approval so that it is effective in achieving the objectives of the approval and the relevant outcome statements” (condition 15.4).

63. Chapter 8 of the CIFOA concerns monitoring conditions. In accordance with condition 122.1, FCNSW is required to “participate in the work of the monitoring steering committee referred to in Protocol 38: Monitoring Program.” As part of that program, condition 23.1 provides that:

23.1 FCNSW may request the EPA to review a condition, objective or outcome of the approval by way of written submission to the EPA demonstrating that in FCNSW’s opinion:

(a) a condition, objective or outcome is not being consistently achieved when implementing the approval;

(b) the practical application or enforcement of a condition results in the consistent inability to effectively implement or regulate that condition;

(c) new information, or an alternative method, procedure, technique or approach to a condition would achieve an improved outcome; or

(d) the monitoring program under Chapter 8 of the approval identifies that the conditions are not effective or not delivering the intended objectives or outcomes of the approval.

64. The objectives of the CIFOA are set out in condition 14.1. Condition 23.2 provides that “[i]n consultation with FCNSW, the EPA will consider all relevant issues and, within six months or another timeframe approved by the EPA…(a) provide a report of the outcome of the review if the EPA determines that no changes are to be made to the approval; (b) amend the protocols to address the issues identified; or (c) recommend to the Ministers to amend the approval.”

65. Division 4 of Chapter 1 concerns “specific biodiversity and environment protection conditions”. Condition 16.1 provides that “FCNSW and any authorised person must not carry out any forestry operation that is likely to result in…(a) harm to any animal or plant” that is or is part of a “threatened species, extinct species, species extinct in the wild or threatened ecological community” and that is not listed in, or considered by Protocol 31 or identified as part of a threatened ecological community pursuant to Protocol 27. Under condition 17, except as expressly permitted by the CIFOA, a forestry operation must not pollute waters within the meaning of s 120 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).

66. Division 5 of Chapter 1 concerns the general conditions of the CIFOA. Condition 18 requires that every forestry operation (defined in Protocol 39 as the “operations and activities authorised under the approval as set out in condition 13”) “must be planned, implemented and conducted: (a) in accordance with the conditions of the approval; (b) in a competent manner; and (c) by a suitably qualified person.”

67. Condition 19.1 provides:

19.1 Forestry operations covered by the approval must be carried out in accordance with the approval, including in accordance with any relevant operational plan, during and at completion of a forestry operation in an operational area.

68. Conditions 23.4 to 23.6 set out a process for FCNSW to seek SSOCs in circumstances where “applying a condition of the approval would result in a poor environmental outcome” or where “in a specific and unique circumstance FCNSW would not be able to comply with the conditions of the approval” (SSOC process). The SSOC process is as follows:

23.4 If applying a condition of the approval at a specific site would result in a poor environmental outcome, or if in a specific and unique circumstance FCNSW would not be able to comply with the conditions of the approval, then prior to commencing the relevant forestry operation:

(a) FCNSW may submit a report to the EPA in accordance with Protocol 5: Approvals for restricted activities; and

(b) the EPA may grant a site-specific operating condition in response to the report that specifies:

(i) the conditions of the approval that must be implemented at the specific site for the duration of the forestry operation; and

(ii) site-specific operating conditions that must be implemented at the specific site for the duration of the forestry operation in that area, or for another time period specified by the EPA.

23.5 Where the EPA has issued FCNSW with a site-specific operating condition:

(a) the relevant forestry operation must be carried out in accordance with the site- specific operating condition; and

(b) unless otherwise specified in the site-specific operating condition, all other conditions of the approval must be complied with.

23.6 At the completion of the forestry operation, subject to the site-specific operating condition, the site-specific operating condition ceases to operate, and any subsequent forestry operation in that area must be carried out in accordance with the conditions of the approval.

69. In Protocol 5 to the CIFOA (Approvals for restricted activities), condition 5.1(1) provides that “[t]his protocol supports various conditions of the approval which require approval of restricted activities.” In particular, the restricted activity described in Table 1 to Protocol 5 as “[s]pecial provisions requiring a review or amendment to the approval at a specific site in a specific circumstance” refers to condition 23.4 of the CIFOA (that is, in relation to SSOCs) and identifies the EPA as the approval body.

70. Protocol 39 (Definitions) provides following definitions:

1. “approval” is defined as:

The approval granted to FCNSW under Part 5B of the Forestry Act 2012, which includes protocols.

Where there is a reference to a condition of the ‘approval’, it is a reference to a condition in the main body of the approval (Conditions 1-125).

In any other context, it takes the ordinary meaning.

2. “forestry operations” is defined as “the operations and activities authorised under the approval as set out in condition 13 of the approval”;

3. “operational area” is defined as “[a]n area defined in the operational plan and operations register in which a forestry operation (excluding forest product and timber operations conducted under section 45 of the Forestry Act 2012) is occurring or will occur”;

4. “operational plan” is defined as “[a] plan required to be prepared under condition 53 of the approval”; and

5. “operations register” is defined as: “[a] register required to be kept under condition 28 of the approval”.

71. Condition 53 of the CIFOA relates to operational plans. Condition 53.1 provides:

53.1 FCNSW must prepare a separate operational plan for each forestry operation in each operational area (as defined in the operations register), excluding forest product and timber operations conducted under section 45 of the Forestry Act.

72. Condition 53.2 provides that “[a] forestry operation must not commence in an operational area unless an operational plan has been prepared for that forestry operation in that operational area.”

73. Condition 53.3 provides that each operational plan must include the following documents for each forestry operation in each operational area prepared in accordance with Protocol 4: Operational Plans:

(a) general requirements for all operational plans;

(b) additional specific requirements for operational plans relating to harvesting operations, roading, burning operations, forest produce operations;

(c) a location map; and

(d) an operational map.

74. Condition 53.4 provides that each operational plan must:

(a) address the conditions of the approval;

(b) contain operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to comply with the conditions of the approval; and

(c) be approved and dated by a FCNSW planning supervisor.

75. Condition 53.3 refers to Protocol 4. In Protocol 4, condition 4.1(1) provides that condition 53 “requires the preparation of an operational plan, for a proposed forestry operation, in accordance with [Protocol 4].” Condition 4.2 specifies “general requirements” (4.2(2)) and “specific operational plan requirements for harvesting operations” (4.2(3)). Condition 4.1(3) provides that “[a]n operational plan must include all information required to be included by the protocols listed in conditions 43 and 54 of the approval to enable FCNSW or an authorised person conducting a forestry operation to comply with Chapter 4 [Operational Planning and Implementation] and Chapter 5 [Operating Conditions] of the approval.”

76. Condition 89 provides as follows in relation to the commencement of forestry operations:

89.1 FCNSW must not commence a forestry operation until there is an approved and current operational plan for the forestry operation.

89.2 Prior to the commencement of the forestry operation, the approved operational plan must be:

(a) named, signed and dated by all persons involved in carrying out the forestry operation;

(b) kept at the site of the forestry operation at all times; and

(c) provided to the EPA upon request.

The parties’ evidence

Documentary evidence

77. NEFA tendered documents including correspondence in relation to NEFA’s grounds of review, historical correspondence and media excerpts in relation to NEFA’s standing, and the November 2022 NRC report referred to at [20] above.

78. FCNSW tendered two statements of reasons in relation to the Braemar HHP and the Myrtle HHP, dated 8 August 2023 and 9 August 2023 respectively (the statements of reasons). The statements of reasons set out the background to each of the Braemar and Myrtle HHPs, the steps taken by Mr Howat in reviewing draft copies of the HHPs, the documents available to Mr Howat when reviewing the HHPs, and the “material matters taken into account” by Mr Howat and his reasons for approving each of the HHPs. The statements of reasons provide as follows:

Having had regard to the [Myrtle and Braemar HHPs], the supporting documentation...and the matters discussed above, the Planning Supervisor approved the HHP[s]. In approving the [HHPs]...Mr Howat was satisfied that:

a. The [HHPs] met the requirements of an operational plan under condition 53 of the CIFOA; and

b. The [HHPs] adequately recorded operational details to allow a person carrying out forestry operations to comply with the CIFOA.

79. FCNSW noted the following in relation to the statements of reasons:

This provision of this Statement of Reasons is without prejudice to the argument of [FCNSW] that the steps referred to in [NEFA’s] summons do not constitute ‘decisions’ for the purposes of the Uniform Civil Procedure Rules 2005 (NSW) or for the purpose of judicial review of such ‘decisions’. It is likewise not conceded that the actions described in this Statement of Reasons constitute ‘decisions’ of any kind or an exercise of a function that is conferred or imposed by a planning or environmental law.

80. FCNSW also tendered a “final report (updated)” of the NRC titled “Research Program Koala response to harvesting in NSW north coast state forests” dated December 2022 (the December 2022 NRC report).

Lay evidence

81. NEFA read three affidavits of Mr Dailan Pugh, president of NEFA, affirmed 27 July 2023, 1 August 2023 and 7 August 2023. In light of FCNSW’s objections to Mr Pugh’s affidavits, the parties agreed that the affidavits would be read on the limited basis that they are not expert evidence, but only as evidence of NEFA making submissions and carrying out “audits”, and not of the facts asserted in the submissions.

81. Mr Pugh said that NEFA had 35 formal members, some 80 volunteers who volunteer with NEFA on a regular basis, and 1,443 subscribers to NEFA’s general email subscription list. Mr Pugh described NEFA’s activities which include conducting “audits”, “scat surveys” and “vegetation plot surveys” in relation to the presence of listed threatened species in a number of State Forests and private properties in North East NSW and in relation to compliance with logging conditions under regulatory schemes. Mr Pugh expressed concern on behalf of NEFA, based on its audits and surveys in relation to the Braemar and Myrtle State Forests, that forestry operations “will compound the impacts of the 2019-20 bushfires on the remaining koala population and the slaty red gum population in the relevant State Forests”.

82. FCNSW read two affidavits of Mr Deane Kearney, senior manager environment and sustainability employed by FCNSW, affirmed 1 August 2023 and 10 August 2023. Mr Kearney deposed that FCNSW had undertaken “Broad Area Habitat Searches” (BAHS) in some “patches” within the Myrtle and Braemar State Forests in which FCNSW marked 259 koala feed trees for retention in the Myrtle State Forest, and 170 koala feed trees for retention in the Braemar State Forest. Mr Kearney said that under the Myrtle and Braemar HHPs, BAHS would continue across the remainder of the areas to be harvested as it had in the patches covered as at August 2023. The BAHS were also expected to identify “wildlife habitat clumps” (WHC) as well as “tree retention clumps” (TRC) in each of the Myrtle and Braemar State Forests which were “likely to contain significant numbers of koala browse trees”.

Expert evidence

84. NEFA read two affidavits of Dr Stephen Phillips affirmed 31 July 2023 and 7 August 2023. Annexed to Dr Phillips’ 7 August 2023 affidavit was an expert report dated 7 August 2023 (Phillips report). Dr Phillips holds a Bachelor of Science (Honours) and a Doctor of Philosophy (PhD) in science. His PhD research focused on the identification and modelling of koala habitat. He has written book chapters and scientific publications on various aspects of koala habitat use and conservation. He is currently the principal research associate at Biolink Ecological Consultants Pty Ltd (Biolink).

85. In his 31 July 2023 affidavit, Dr Phillips provided his opinion in relation to the ecology of koalas inhabiting the Braemar and Myrtle State Forests and the impact of the 2019/2020 bushfires. On 20 June 2023, Dr Phillips undertook survey work in the Myrtle and Braemar State Forests. The surveys recorded “evidence of active habitat utilisation by koalas at 4 of 5 field sites in the Myrtle State Forest, and at 4 of 6 field sites in the Braemar State Forest…confirm[ing] that there are koalas present within the areas proposed for logging”. Dr Phillips expressed the opinion that the Braemar and Myrtle HHPs failed to:

1. mandate protections that will maintain forest values relevant to koalas;

2. apply best available knowledge and adaptive management processes to deliver best-practice forest management;

3. apply the precautionary principle to prevent environmental harm; and

4. prevent a poor environmental outcome for local koala populations.

86. The reasons given by Dr Phillips in forming this opinion in the 31 July 2023 affidavit, and maintained in the Phillips report, included that:

1. it was “likely that FCNSW [had] insufficient data in relation to both the presence of koalas following the bushfires and how the bushfires [had] impacted local koala populations and habitat”, and accordingly, additional surveys were required to “understand the extent and location of habitat being actively utilised by any resident population of koalas” in the Braemar and Myrtle State Forests;

2. the “CIFOA prescriptions, aimed at protecting listed threatened species, such as the koala, do not take into account the impacts of the 2019-20 bushfires”; and

3. there was a “serious risk that no suitable habitat [would] be retained for surviving koala populations in these areas under the CIFOA prescriptions” as the removal of “koala browse trees”, defined in Protocol 39 as live healthy trees greater than 30 centimetre “diameter at breast height” (DBH), would “significantly compound the impacts of the 2019-20 bushfires on surviving individuals and local populations of koalas in these areas”. Dr Phillips said that his research suggested that koala browse trees such as Grey Gums and Red Gums which are present in the compartments proposed for logging only become palatable to koalas when they exceed a minimum threshold of approximately 30 centimetre DBH.

87. In the Phillips report, Dr Phillips provided his opinion in relation to a number of matters, including a decline in the reporting rate of koalas using habitat in the Myrtle and Braemar State Forests, the severity of the 2019/2020 bushfires to the Myrtle and Braemar State Forests, his reasons for rejecting FCNSW’s BAHS approach, and FCNSW’s proposed retention of koala browse trees, WHCs, TRCs and “hollow bearing trees”.

88. Dr Phillips said his research also suggested that “koala population recovery from the impacts of fire can take as long as 10 to 15 years”, having regard to a series of independent studies that he conducted in relation to the Port Macquarie area between 2002 and 2010 (Port Macquarie Study).

89. FCNSW objected to the admission of Dr Phillips’ affidavits and the Phillips report into evidence on the ground of relevance. However, in the event that the Court finds Dr Phillips’ evidence to be relevant and admissible, FCNSW relied on the report of Ms Elizabeth Ashby, professional ecologist and director and principal consultant at Keystone Ecological Pty Ltd, dated 10 August 2023 (Ashby report). Ms Ashby holds a Bachelor of Science and Master of Science (Preliminary) and has written publications in relation to forest conservation issues.

90. In her report, Ms Ashby opined on matters including the CIFOA conditions relevant to the koala and the effectiveness of those CIFOA conditions, as well as specific matters raised in the Phillips report. Ms Ashby considered that “the CIFOA if implemented [would] not result in a poor environmental outcome for the [k]oala”. Contrary to Dr Phillips’ opinion that the recovery of koala populations from the impacts of fire could take as long as 10 to 15 years, Ms Ashby opined that there was evidence of koalas returning to heavily burnt forest within one year post-fire, referring to the November 2022 NRC report. Ms Ashby said that the Port Macquarie study was distinguishable as the population in that area was “quite large compared with the low density population likely to be supported by the habitat in [the] Myrtle and Braemar State Forest[s]”.

91. Dr Phillips and Ms Ashby gave evidence concurrently at the hearing on 14 and 15 August 2023.

Solicitor evidence

92. FCNSW also read an affidavit of Ms Anneliese Catrina Korber Moriarty, partner of the solicitor for FCNSW, sworn 1 August 2023, deposing to matters in relation to the injunction motion and summary dismissal motion.

The summary dismissal motion: the question of NEFA’s standing to bring the proceedings

93. A critical question arises as to NEFA’s standing to bring these proceedings. By way of its summary dismissal motion filed 1 August 2023, FCNSW sought to have the proceedings summarily dismissed, or the summons struck out, contending that NEFA lacks standing to bring the proceedings. As Craig J observed in Haughton v Minister for Planning ^[1] (Haughton) at [64], standing and jurisdiction are distinct concepts.

    1. (2011) 185 LGERA 373; [2011] NSWLEC 217 (Craig J).

94. Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides in relation to the dismissal of frivolous and vexatious proceedings:

13.4   Frivolous and vexatious proceedings

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

95. Rule 14.28 of the UCPR provides in relation to the circumstances in which the Court may strike out pleadings:

14.28   Circumstances in which court may strike out pleadings

(1)  The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

96. Section 69ZA of the Forestry Act in relation to the application of statutory provisions relating to proceedings by third parties, and standing to bring proceedings in relation to, inter alia, a breach of Part 5B, is extracted above at [50]. Section 69ZA(3) makes clear that the provision does not apply to proceedings brought by a Minister, the EPA or a member of the staff of the Authority or a government agency or any government official engaged in the execution or administration of the provisions of an Act referred to in s 69ZA(1)(b).

NEFA’s submissions in relation to its standing to bring the proceedings

97. It was not in dispute that NEFA bears the onus of establishing that it has standing to bring these proceedings. NEFA appears to have put its position in relation to standing as follows:

1. Section 69ZA(1)-(2) of the Forestry Act provides that “proceedings may not be brought under” ss 219, 252 or 253 of the POEO Act or “a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach…of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach”. That is, the “open standing” provisions in the POEO Act do not apply to proceedings commenced pursuant to the Forestry Act. However, s 69ZA does not go further to “impose any limitation on standing”. Therefore, the question of standing is to be determined by reference to the common law.

2. There is no requirement for standing to be demonstrated in relation to proceedings commenced pursuant to any law enacted for the protection of the environment. That is to say, standing at common law exists in relation to all matters concerning the protection of the environment, whether or not brought pursuant to the POEO Act or any other Act with an open standing provision. NEFA appears to accept that this position is presently unsupported by binding authority, and is to be determined “on any subsequent appeal”.

3. In any event, NEFA contends, for present purposes, that it does satisfy the common law test for standing as articulated by the High Court in Australian Conservation Foundation v The Commonwealth (ACF v Commonwealth). ^[2] It submitted that NEFA has a “sufficient interest” to bring these proceedings.

   2. (1980) 146 CLR 493 at 530 to 531; [1980] HCA 53 (Gibbs J).

NEFA’s submissions in relation to statutory open standing provisions

98. In relation to open standing, NEFA submitted that the “strong trend” in modern environmental statutes has been towards enacting “open standing” provisions. Examples are ss 252 and 253 of the POEO Act, s 193 of the National Parks & Wildlife Act 1974 (NSW) (NPW Act) and s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

99. NEFA accepted that s 69ZA of the Forestry Act has the effect of displacing such open standing provisions. However, NEFA submitted that the effect of s 69ZA is not to impose any restraint on standing, rather only to prevent NEFA in the present case from taking advantage of statutory liberalisations of the standing test, with the consequence that the question of standing reverts to the common law position.

100. NEFA submitted that following the introduction of statutory open standing provisions, particularly in ss 252 and 253 of the POEO Act, the development of jurisprudence in respect of the common law test for standing in the enforcement of environmental legislation has slowed. That was said to be “because the issue generally does not arise”, and that “[t]he cases indicating the progress of the legal test for standing tend to pre-date the enactment of the POEO Act”. Prior to the enactment of the open standing provisions in the POEO Act, a “clear trend of general liberalisation of the standing test was emerging from the case law”.

101. NEFA submitted that there is a “clear statutory trend towards open standing provisions in environmental laws, dispensing with standing as a necessary requirement before a challenge can be brought”, which has created a “gravitational pull” on the common law in respect of standing, citing Beaumont J in South Pacific Air Motive Pty Ltd v Magnus. ^[3] In that case, Beaumont J was considering whether Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) governed claims by passengers for psychological injuries. His Honour referred to the decision of Olney, Kiefel and Finn JJ in Adelaide Steamship Co Ltd v Spalvins,^[4] where the Court said “such is the significance of the Act’s provisions in this that their advent has created an entirely new setting to which the common law must now adapt itself”. Here, Mr Hall SC for NEFA submitted that “there has been a gravitational effect of the parliaments via statements of a move towards open-standing and the enforcement of environmental protection legislation.”

     3. (1998) 87 FCR 301 at 317; (1998) 157 ALR 443 (Beaumont J).

     4. (1998) 81 FCR 360 at 373; (1998) 152 ALR 418 at 428 (Olney, Kiefel and Finn JJ).

102. However, NEFA accepted that the effect of the test stated in ACF v Commonwealth and subsequent decisions is that “a mere belief or concern, however genuine, does not itself constitute a sufficient locus standi”, but submitted that once that belief or concern is converted into concrete action by a person or organisation to protect or uphold the particular interest involved, then standing will be established. That proposition is stronger when the interests of the person or organisation are closely connected to a particular geographical area or a particular type of environment, and to the subject matter of the relevant decision. The range of matters that the Court may take into account in determining whether the person or organisation has such an interest, it was submitted, is not closed and all aspects of the organisation and its activities are potentially relevant.

103. NEFA accepted that this Court is bound to find that there is an obligation to demonstrate locus standi by demonstrating a special interest in the sense that it will be “more particularly affected than other people”. But in order to preserve the question for any later argument that might arise on appeal, NEFA submitted that no such standing test applies to actions to enforce laws enacted for the protection of the environment. That is because the decision in ACF v Commonwealth was influenced by the nature of the particular statutory provisions in play in that case. Those were variously described as being entirely concerned with administrative arrangements for the execution of public duties, or as being concerned with relations between public authorities. The direct challenge was to a decision taken under foreign exchange control regulations, not under environmental legislation.

104. NEFA noted for the record that if this case reaches a Court which is at liberty to depart from the existing authorities, it will be argued that none of the considerations that led to the Court’s conclusion in ACF v Commonwealth applies to provisions such as those in the present case which are directly concerned with the protection of the Australian environment.

FCNSW’s submissions in relation to open standing in environmental laws generally

105. In relation to NEFA’s contention concerning common law “open standing” in matters concerning the environment, FCNSW submitted that NEFA seeks to “go beyond established common law principles of standing to break new ground”. FCNSW submitted that NEFA’s concept of common law open standing for enforcement of environmental laws does not accord with binding authority, having regard to the law as stated by Gibbs J in ACF v Commonwealth at 526. In particular, FCNSW submitted as follows:

1. It should not be assumed that because environmental laws in NSW have tended to include open standing provisions, that would have had an influence on the common law position. Rather, the express steps taken by Parliament to include open standing provisions in statutes could be said to demonstrate that it does not reflect the common law, and that the legislature wishes to reserve to itself the ability to decide which matters will be the subject of open standing.

2. It is no answer to say, as NEFA does, that the existence of open standing provisions has led to a lack of development in this area of the common law. In that regard, NEFA’s submission is predicated on an assumption that the development of a common law position in relation to open standing for environmental matters was otherwise certain. Such an assumption is without foundation.

3. If anything, the decision to “turn off” open standing provisions in s 69ZA of the Forestry Act suggests a legislative intention to limit the classes of people who may bring proceedings, and the suggestion by NEFA that the common law would nonetheless permit open standing in those circumstances is simply wrong.

NEFA’s submissions in relation to the common law test for standing in Australian Conservation Foundation v The Commonwealth

106. It was common ground that NEFA’s approach to standing in relation to environmental laws is generally unsupported by authority. Accordingly, NEFA accepted that the question of standing is to be determined by reference to the common law.

107. In ACF v Commonwealth, Gibbs J said at 530 to 531:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest for present purposes does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, or upholding a principle or winning a contest, if its actions succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”

108. NEFA submitted that the above statement, while authoritative, is not a statutory formula. For example, Mason J in ACF v Commonwealth referred to his earlier decision in Robinson v Western Australian Museum ^[5] as follows (at 547 to 548) (emphasis added):

The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another. In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration.

5. (1977) 138 CLR 283 at 327 to 328; [1977] HCA 46 (Mason J).

109. In relation to ACF v Commonwealth, NEFA submitted that:

246. NEFA identified examples of the FCNSW’s North Coast voluntary conditions as those excluding 50% of the gross LLA from harvesting; amending condition 64.2(c) to require the retention of “hollow bearing trees” where they exist and add up to 8 “Recruitment” trees where hollow bearing trees do not exist; amending condition 65 to provide additional prescription in relation to “koala browse trees” (the voluntary condition stating “an additional 5% base net area (BNA) (at compartment scale) identified as koala temporary tree retention clumps in LLAs with contemporary koala records”); and a requirement for additional operational surveys with a traverse of 1km/100ha and applying the “normal clump methodology” to be undertaken by drone where appropriate.

247. Further or in the alternative, NEFA submitted that FCNSW would not be able to comply with conditions of the CIFOA “in a specific and unique circumstance as [a] matter of fact”, and that FCNSW “also formed this opinion in preparing the HHPs”. NEFA submitted that the 2019/2020 bushfires constituted a “specific and unique circumstance” because the bushfires were unprecedented in their size, intensity and scale. Due to the impacts of the 2019/2020 bushfires, FCNSW could not comply with or in the alternative formed the view that it could not comply with the following CIFOA conditions: (1) condition 57 requiring BAHS to be conducted, both HHPs providing that “[a]s a result of the 2019-20 wildfires there may be some areas where [BAHS] and mark-up cannot safely occur due to overhead hazards,” and that no harvesting is to occur in areas where BAHS and mark up has not occurred; (2) condition 65 requiring the retention of koala browse trees, both HHPs referring to an additional 5% of the BNA of each compartment being managed as temporary feed tree clumps, and providing that “clumps will be prioritised to include primary and secondary koala browse tree species where they exist”; and (3) condition 14.1 (see above at [61]).

NEFA’s third proposition: FCNSW must seek SSOCs where either or both SSOC preconditions are met and it seeks to conduct forestry operations

252. NEFA submitted that where either SSOC precondition applies, FCNSW must either refrain from carrying out the operation, or must seek an SSOC. That is because it is clear from the “context, purpose and textual construction” of condition 23.4 that where either SSOC precondition applies, FCNSW cannot proceed with forestry operations unless it has obtained SSOCs from the EPA. Where either SSOC precondition is present, condition 23.4(a) provides that FCNSW “may” submit a report to the EPA in accordance with Protocol 5. NEFA accepted that while, on its face, the word “may” appears to provide FCNSW with the discretion to seek SSOCs, if the obligation to seek SSOCs were interpreted to provide FCNSW with the “option” to proceed with forestry operations without SSOCs, it would mean that FCNSW “could conduct forestry operations that would result in a poor environmental outcome and/or that do not comply with conditions of the CIFOA”. This would, in NEFA’s submission, render condition 23.4 and the CIFOA itself superfluous.

253. In particular, NEFA submitted, it was the intention of the Ministers in “drafting” condition 23.4 “that if ‘short term’ site-specific variations to the operating conditions were required, the EPA was to have a central role in preparing them and enforcing them”. There could be “no suggestion that it was intended to permit [FCNSW] to make up their own conditions”. Further, NEFA submitted, condition 23.5 indicates a “clear intention” of the Ministers that SSOCs issued by the EPA be enforceable. It would lead to “an absurd result” if the operator, FCNSW, “could develop its own conditions that are inconsistent with the CIFOA and cannot be enforced by the regulator”.

254. The EPA’s position in this regard was submitted to be clearly articulated on various EPA webpages. For example, the webpage titled “Bushfire-affected Forestry Operations” states that the EPA “continue[s] to advocate that FCNSW obtain site-specific operating conditions in areas recovering from the 2019-20 bushfires” (see [35] to [36] above).

255. Further, NEFA submitted, it is also clear from Protocol 5 that where either SSOC precondition is met and FCNSW seeks to conduct relevant forestry operations, it must obtain SSOCs from the EPA in order to do so. Protocol 5 identifies in Table 1, item 6, column 1, as a restricted activity “Special provisions requiring a review or amendment to the approval at a specific site in a specific site in a specific circumstance”, referring in column 2 to condition 23.4 of the approval and in column 3 to the EPA as the approval body/person. NEFA submitted that “this implies that where either SSOC precondition is met, [FCNSW] must seek approval to conduct forestry operations in a relevant operational area”. Further, conditions 5.2(2) and 5.2(3) in Protocol 5 were submitted to provide “strong textual indicators” that the use of “may” in condition 23.4(a) should be interpreted to mean that FCNSW should seek SSOCs where either of the SSOC preconditions is met and FCNSW seeks to proceed with forestry operations because condition 5.2(2) provides that “FCNSW may only propose to carry out a restricted activity where there is no practical alternative”, and despite condition 5.1 in Protocol 5 stating that the protocol supports various conditions of the approval that require approval, condition 5.3 “again adopts the language of condition 23.4(a)” by stating that “FCNSW may apply in accordance with this protocol for a restricted activity approval”.

NEFA’s fourth proposition: the SSOC process relates to the approval of HHPs as they authorise forestry operations

256. In relation to its fourth proposition concerning Ground 3, NEFA submitted that the SSOC process relates to the approval of HHPs for reasons including that condition 89.1 of the CIFOA expressly provides that FCNSW must not commence forestry operations until there is an approved and current operational plan for the forestry operation. In accordance with condition 53.4, an operational plan must (a) address the conditions of the CIFOA and (b) “contain operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to comply with the conditions of the approval”. NEFA submitted that “[t]he plain meaning of this phrase requires all conditions, including condition 23.4, to be addressed by an operational plan so that persons conducting the operation can comply with the CIFOA”. Further, the chapeau to condition 23.4 also requires that SSOCs be sought prior to the commencement of a forestry operation. For an operational plan to be current, and for persons to be able to comply with the CIFOA, an operational plan must, therefore, refer to SSOCs.

NEFA’s fifth proposition: FCNSW’s failure to seek SSOCs prior to approving the HHPs results in invalidity

257. NEFA’s fifth proposition in relation to Ground 3 was that FCNSW is required to seek SSOCs in relation to its proposed forestry operations in the Myrtle and Braemar State Forests because both, or in the alternative one, of the SSOCs preconditions was enlivened and FCNSW sought to proceed with forestry operations. Accordingly, FCNSW’s failure to seek SSOCs prior to approving the Myrtle and Braemar HHPs results in invalidity of the HHPs.

FCNSW’s submissions in relation to Ground 3

258. As to NEFA’s submissions in relation to Ground 3, FCNSW submitted that the submissions “squarely” frame the ground as another ground raising a question of jurisdictional fact, and that is not how the ground was pleaded in the amended summons. While the amended summons clearly identifies the alleged mandatory precondition for the purposes of Ground 1, in relation to Ground 3 the amended summons does not identify the alleged mandatory pre-condition. The shift in approach by NEFA was submitted by FCNSW to presumably “counter the proposition” put forward by FCNSW in its opening submissions that “Ground 3, properly understood, seeks civil enforcement of the CIFOA masquerading as judicial review”. At the end of the first tranche of the hearing, senior counsel for FCNSW expressed his client’s concern in relation to a “shifting case” as follows:

Can we note, your Honour, that it is of great concern to us, because your Honour will have seen that we’ve criticised the - I don’t say that in a critical way, but we’ve criticised the summons and the cases pleaded in our submissions already, and we do not want an adjournment to be an opportunity for the applicant to be able to stray from the case as currently pleaded in its summons. So we would be taking a strict approach to the case as already pleaded in the summons, and we just note that now that the time - part of the condition of us acceding to this request is that the case can’t change.

259. I accept that there was a shift during the course of the hearing in the approach of NEFA to the way it casts Ground 3. Nonetheless, notwithstanding the change in approach, FCNSW in its written submissions addressed Ground 3 as it apprehends the ground to have been put, and sought to “cut through the voluminous submissions on the point”. Put shortly, FCNSW submitted, NEFA was wrong in that the SSOC process, as referred to by NEFA, does not relate to the approval of operational plans, and that NEFA failed to establish the fourth of its propositions in relation to Ground 3.

260. Again, FCNSW submitted, as it had submitted in relation to the question of jurisdiction and justiciability, that the only approval of forestry operations is by the Ministers in the CIFOA (and subject to conditions). Condition 53 does not approve the carrying out of forestry operations, rather is a timing provision that relates only to when forestry operations may commence in an operational area. That is, FCNSW submitted, the operational plan must be approved prior to the commencement of forestry operations in each operational area.

261. FCNSW referred to numerous other “commencement requirements and also stop points in the CIFOA”, as well as provisions that “automatically read to changing circumstances”. Some examples were identified, including condition 21.1 (specific site biodiversity conditions); condition 21.2 and 21.3 (specific site biodiversity conditions); condition 28.2 (operations register); condition 44.1 (LLA); and condition 84.2 (species management plans). FCNSW identified condition 23.4 as a particular example of a commencement requirement. After the operational plan has approved the commencement of forestry operations in the relevant operational area, condition 23.4 has continuing effect. That is because although the operational plan relates to the commencement of forestry operations in the operational area, the effect of condition 23.4 is much more specific. It relates to either:

1. a specific site at which there would be a poor environmental outcome, being a site that is part only of the operational area otherwise the subject of the operational plan; or

2. a specific and unique circumstance, again, a specific and unique circumstance that arises after the operational plan has authorised the commencement of forestry operations in the operational area as a whole and in all circumstances.

262. In particular, FCNSW submitted that Ground 3 requires NEFA to establish a connection between condition 23 and condition 53, and to demonstrate that condition 23 which contains special provisions requiring a review or amendment to the approval can somehow affect the power in condition 53 to approve the operational plan. There is, FCNSW submitted, no such connection: condition 53 authorises the commencement of operations within an operational area, and it is only after an operational plan has been approved for that operational area, that a particular forestry operation at a specific site or in a specific and unique circumstance may trigger condition 23. Even if NEFA were able to demonstrate that the conditions in the chapeau to condition 23.4 are met, that could not affect the validity of the already approved operational plan. Rather, what NEFA seeks to argue is that in commencing and carrying out forestry operations pursuant to the operational plan, NEFA anticipates that there will be a breach of condition 23. Because of the operation of s 69ZA of the Forestry Act (concerning the application of statutory proceedings by third parties), NEFA cannot seek to restrain any such alleged anticipated breach.

263. FCNSW submitted that the error in NEFA’s approach arises because it has sought to construe condition 23.4 in light of the particular facts it says apply to the Braemar and Myrtle State Forests where the operational areas are fire affected. On NEFA’s case, the entirety of the forestry operations would be subject to SSOCs. Rather, the words of condition 23.4 must be read on their own in the context in which they appear first and then applied to particular facts. The absence of any correlation between the operation of condition 23.4 and the approval, at a preliminary stage, of an operational plan for an operational area, pursuant to condition 53, was sufficient to cause NEFA to fail on Ground 3.

264. In relation to NEFA’s other four propositions, FCNSW submitted as follows. It referred to and repeated its submissions in relation to the identification of jurisdictional facts made in relation to Ground 1, and submitted that the Court would reject NEFA’s submission that the two limbs in the chapeau to condition 23.4 are jurisdictional facts. Again, this was said to be because condition 23 facilitates variation to the conditions of the approval by the means of SSOCs in two different circumstance: the first being where if applying a condition of the approval (as defined in Protocol 39) at a specific site would result in a poor environmental outcome; the second being if in a specific and unique circumstance, FCNSW would not be able to comply with the conditions of the approval. Each of these circumstances, referred to by NEFA as the SSOC preconditions, requires an evaluative process. In order to determine whether there is a “poor” environmental outcome necessarily involves a degree of evaluation, as does the determination of whether a circumstance is “unique”. FCNSW submitted that these textual indicators suggest that the initial decision maker is likely to be best placed to undertake the evaluation, and that their findings should not be reviewable. Further, FCNSW repeated that NEFA’s analysis of condition 23.4 and whether the SSOC preconditions are objective jurisdictional facts suffers from the problem that NEFA uses the facts of the present matter to inform the construction of the CIFOA for which it contends. There is no textual or contextual support in either the Forestry Act or the CIFOA for the conclusion that because of FCNSW’s application of voluntary conditions without the input of the EPA, SSOC preconditions are objective jurisdictional facts.

265. FCNSW identified a further, particular problem in NEFA’s framing of the third of the five propositions in relation to Ground 3, namely an assumption that the operation of the chapeau to condition 23 is binary – that is, if either of the SSOC preconditions is met, FCNSW has only two choices: either (1) it does not carry out the forestry operation at the specific site or in the specific and unique circumstance; or (2) it applies for a site-specific operating condition. FCNSW submitted that on a proper construction of the CIFOA, condition 23 is not binary, rather there is a third alternative. Different conditions of the approval are expressed in different ways. Some are expressed in minimums: for example, minimum buffer zones, minimum areas or minimum number of retained. Others are expressed as maximums: for example maximum timber volumes (condition 13.1(b)), maximum annual harvest limits (13.1(b)), maximum area that can be subject to intensive harvesting (condition 45.2) and maximum size of a coupe (condition 45.3). The third possibility is that FCNSW may decide not merely to comply with minimums or seek to achieve the maximums. It might decide to take a more conservative approach than is provided for by the CIFOA, and nevertheless remain compliant with it.

266. That, FCNSW submitted, is precisely what occurred in the approval of the Braemar HHP and the Myrtle HHP. As can be seen from the statements of reasons provided by FCNSW in relation to each of the HHPs, by application of an internal FCNSW document titled “Post-Fire Standard Operating Procedure” issued in October 2021 and without the necessity to form an opinion as to whether or not the chapeau to condition 23 had been triggered, “FCNSW decided to follow its voluntary conditions”; that is to apply the conditions of the CIFOA, but without necessarily providing only for the minimums or achieving the maximums. Accordingly, even if consideration of the chapeau is a question of fact susceptible to review and NEFA can “satisfy either of those factual requirements, that does not mandate the binary result of either cessation of forestry operations or applying for a SSOC”.

267. Next, FCNSW submitted that Ground 3 as pleaded appears to suggest that if either of the requirements of the chapeau to condition 23 is met, there arises “some automatic connection between condition 23.4, Protocol 5 and the power to approve an operational plan”. There are, FCNSW submitted, a number of difficulties with those assumptions. Protocol 5 (Approvals for restricted activities) provides some additional requirements in relation to restricted activities. Relevantly, Table 1 to Protocol 5 specifies those restricted activities, Item 6 being the restricted activity referred to in condition 23.4 of the CIFOA. Properly understood, the “restricted activity” referred to in Protocol 5 is an activity to be carried out in accordance with the site-specific operating conditions. Where the operations do not trigger either of the requirements of the chapeau to condition 23, and/or the operations are carried out in accordance with the voluntary conditions such that 23.4 is not triggered at all, then those forestry operations do not become a restricted activity.

268. FCNSW noted in relation to the final matter to be addressed in relation to the second of the five propositions advanced by NEFA, namely that as a fact the SSOC preconditions would be met in the Braemar and Myrtle State Forests, that NEFA’s submissions set out a great deal of detail about the evidence of Dr Phillips, and NEFA proceeded on an assumption that any potential impact on the koala or its habitat would automatically lead to the conclusion either that the application of the CIFOA leads to a poor environmental outcome or that FCNSW cannot comply with conditions of the CIFOA. Neither conclusion, FCNSW submitted, would be true. That is because NEFA does not grapple with what constitutes a “poor environmental outcome” in the context of condition 23.4.

269. FCNSW referred to three conditions of the CIFOA with which NEFA said FCNSW could not comply so as to trigger the second of the SSOC preconditions. In relation to the first of those conditions, relevantly condition 57, NEFA did not “identify a non-compliance”. FCNSW submitted that if a BAHS cannot be completed, no harvesting can occur, and that it is not a breach of the CIFOA to not harvest: “If it were proposed that harvesting continue in the absence of BAHS that would be a different story. But that is not the case here”.

270. Nor, FCNSW submitted, did the second condition with which NEFA said FCNSW could not comply, condition 65, “identify a non-compliance”. Rather, FCNSW submitted, NEFA “simply assume[d]” that FCNSW may not be able to meet tree retention requirements in some areas. There was “no evidence that harvesting [wa]s proposed to occur notwithstanding an inability to retain the minimum number of trees”. In the absence of a proposal to harvest, there could be no non-compliance.

271. Likewise, in relation to the third condition on which NEFA relied, condition 14.1, NEFA did not “identify a non-compliance”: first, as submitted previously by FCNSW, condition 14.1 is not an operational condition; secondly, NEFA’s evidence fell “well short of establishing any prospective breach of the principles of ESFM”.

262. As to the fifth of NEFA’s five propositions in relation to Ground 3 (namely, that FCNSW’s failure to seek either or both of the SSOCs results in invalidity), FCNSW submitted that that proposition is “not a standalone criterion”, rather “a consequence of the other four propositions” each of which fails. The failure of any one of the first four propositions must mean that Ground 3 fails.

Conclusions in relation to Ground 3

273. In relation to Ground 3, I find as follows:

1. As submitted by FCNSW, Ground 3 must fail because NEFA has failed to establish the fourth of its five propositions in relation to Ground 3, namely that the SSOC process applies to the approval of HHPs which authorise forestry operations.

2. It is true that I have found above at [179] that the Court has power to entertain an application to review the embedded decision of the FCNSW planning supervisor to approve each operational plan. However, it does not follow that there is a connection between condition 23 and condition 53 and that condition 53 relates to the process for FCNSW to seek SSOCs in specified circumstances, as submitted by FCNSW, subsequent to the grant of an approval by the Minister under Part 5B of the Forestry Act.

3. Condition 23.4 is specific. It relates to either:

1. a “specific site” at which there would be a “poor environmental outcome”, being a site that is part only of the operational area otherwise the subject of the operational plan; or

2. a “specific and unique circumstance”, again, a specific and unique circumstance that arises after the operational plan has authorised the commencement of forestry operations in the operational area as a whole and in all circumstances.

4. Condition 53, on the other hand, relates to the preparation by FCNSW of an operational plan for each operational area (53.1), the commencement of a forestry operation in an operation area only when an operational plan has been prepared (53.2), the documents required to be included in each operational plan (53.3), and the requirement that each operational plan (a) address the conditions of the approval, (b) contain operational requirements in sufficient detail to enable the person proposing to undertake the forestry operations to comply with the conditions of the approval, and (c) be approved and dated by a FCNSW planning supervisor (53.4).

5. I do not accept that condition 23 which contains specific conditions requiring a review of or amendment to the approval conditions restrains an exercise of the power in condition 53 to approve an operational plan and authorise the commencement of forestry operations in an operational area. It is only after an operational plan has been approved pursuant to condition 53 that a particular forestry operation at a specific site or in a specific and unique circumstance can trigger condition 23. These are distinct exercise of power.

6. Nor do I find that the two circumstances referred to in the chapeau to condition 23.4 are jurisdictional facts. Each of those circumstances, referred to by NEFA as the SSOC preconditions, involves a process of evaluation which the initial decision maker, in its original jurisdiction with the function of reviewing the decision of the repository of power, and not the court, is best placed to undertake.

7. Accordingly, Ground 3 must fail.

Materiality

NEFA’s submissions in relation to materiality

274. In relation to the threshold test of materiality, NEFA referred to the following authorities. In Hossain v Minister for Immigration and Border Protection, ^[56] the plurality (Kiefel CJ, Gageler and Keane J) said at [29]:

29. That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.

56. (2018) 264 CLR 123; [2018] HCA 34 at [29] (Kiefel CJ, Gageler and Keane JJ).

275. In MZAPC v Minister for Immigration and Border Protection,^[57] the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) said at [2]:

2. Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

57. (2021) 273 CLR 506; [2021] HCA 17 at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

276. In Nathanson v Minister for Home Affairs,^[58] the plurality (Kiefel CJ, Keane and Gleeson JJ) said at [33]:

33. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

58. (2022) 96 ALJR 737; [2022] HCA 26 at [32] (Kiefel CJ, Keane and Gleeson JJ).

277. Gageler J agreed with the plurality, emphasising at [46] to [47] and [55] that establishing the threshold of materiality is “not onerous”. Gordon J held at [76] to [81] that a “serious denial of procedural fairness” falls within the category of error that is “so egregious that it will be jurisdictional regardless of the effect the error may have had on the conclusion of the decision-maker”. Edelman J at [93] referred to the onus to prove materiality as “almost nothing” and a “quadruple might”.

278. NEFA submitted that here both the Myrtle and Braemar State Forests in which FCNSW seeks to conduct forestry operations were subject to high or extreme fire damage. The fundamental assumptions upon which the CIFOA prescriptions such as the forest values were based in 2018 have therefore been altered. While the CIFOA applies to forestry operations across the CIFOA region, it requires FCNSW to develop and approve operational plans for each individual forestry operation, having regard to the specific characteristics of the environment in which it proposes to operate. FCNSW was therefore required to “properly understand how the forest values of the State Forests have been impacted by the 2019/2020 bushfires and to adaptively manage its forestry operations to accommodate the post bushfire context”. Conditions 14.1 and 23.4 mandate such an approach.

279. With respect to Grounds 1 and 2, NEFA submitted that had FCNSW considered whether the forestry operations could be carried out consistently with ESFM principles, it would have undertaken further ecological surveys to fully understand the impact of the 2019/2020 bushfires on forests values in the severely fire affected State Forests and adapted its forestry operations to those conditions. NEFA also submitted that had FCNSW considered the principles of ESFM, there was a “realistic possibility” that its decision to approve the Braemar and Myrtle HHPs would have been different.

280. With respect to Ground 3, NEFA submitted that FCNSW did not pursue fresh SSOCs from the EPA for the Myrtle and Braemar State Forests and did not continue to engage in the SSOC process required by condition 23.4 “as it had previously done following the 2019-2020 bushfires”. Rather, it developed its own “voluntary” conditions which departed from the CIFOA, were not developed by the EPA and were less onerous than SSOCs, and not enforceable by the EPA, “in essence adopting a business as usual approach”. Had FCNSW sought fresh SSOCs, NEFA submitted that there was a “realistic possibility” that, similar to the 2020 Myrtle HHP, FCNSW would have approved the Braemar and Myrtle HHPs in a different form. This would have incorporated special conditions adapted to the significant impacts of the 2019/2020 bushfires on the Myrtle and Braemar State Forests, avoided poor environmental outcomes, and enabled FCNSW to comply with the conditions of the CIFOA, including the principles of ESFM.

FCNSW’s submissions in relation to materiality

281. FCNSW agreed with the submissions of NEFA in relation to the legal principles regarding materiality. It accepted that if NEFA succeeds on any of its grounds of challenge, the decisions to approve the operational plans will be found to have been affected by jurisdictional error.

Conclusions in relation to materiality

282. I have earlier stated my reasons for dismissing each of the grounds of challenge. There was no disagreement between the parties in relation to the legal principles concerning materiality. NEFA has not succeeded on any of its three grounds of challenge. I have not found the decisions of Mr Howat to approve the operational plans to be infected by jurisdictional error. Hence, considerations of materiality do not arise.

Conclusions

283. I have earlier summarised my reasons for concluding that NEFA has standing to bring the proceedings, that it is within the power of the Court to entertain each of NEFA’s three grounds of challenge, and for dismissing each of the three grounds of challenge.

284. In dismissing NEFA’s grounds of challenge, it has been necessary to keep in mind the constraints that apply to review of an administrative decision for illegality. The role of the Court in that regard is to declare and enforce the law: Attorney General (NSW) v Quin. ^[59] Merits review is not permitted: Haughton at [224].

     59. (1990) 170 CLR 1 at 35; [1990] HCA 21 (Mason CJ).

285. As Craig J said in Haughton at [225], the position was well summarised by Jagot J in Drake-Brockman v Minister for Planning, ^[60] where her Honour said (at [124]):

124. The Land and Environment Court has separate merits and judicial review functions (Pt 3 of the Land and Environment Court Act 1979 (NSW)). In its merits review function the Court makes the decision it finds correct or preferable on the evidence, weighing up for itself the competing considerations. In its judicial review function, the Court may not trespass on the merits or impugn a decision made within the necessary legal boundaries. This distinction and consequential limitation in judicial review proceedings is to be “constantly borne in mind” (Peko-Wallsend at 40-41). It follows that care must be taken in applying observations about the level or extent of assessment of issues found to be appropriate in merits appeals to other contexts. Specifically, observations made by the Court in it merits jurisdiction cannot be understood as mandating a particular outcome in judicial review proceedings. This is evident from the emphasis on the particular factual context in the outcomes apparent from those decisions. As in Haughton, it is the judicial review function that I have been required to undertake in these proceedings.

60. (2007) 158 LGERA 349; [2007] NSWLEC 490 (Jagot J).

Costs

286. The parties made no submissions in relation to costs. Unless an application is made by either party in relation to costs within 30 days of the date of this decision, I will make no order as to costs.

Orders

287. The Court makes the following orders:

1. The notice of motion filed by the respondent on Tuesday, 1 August 2023 is dismissed.

2. The amended summons filed by the applicant on Thursday, 7 September 2023 is dismissed.

3. Unless an application is made by either party in relation to costs within 30 days of the date of these orders, I will make no order as to costs.

**********

Endnotes

Amendments

20 November 2023 - Amendment to Representation section in cover sheet.

Decision last updated: 20 November 2023