Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action

Save Our Strathbogie Forest Inc sought an injunction to prevent the Secretary to the Department of Energy, Environment and Climate Action from conducting planned fuel reduction burns in the Strathbogie State Forest, arguing that these activities would significantly impact the Southern Greater Glider, a listed threatened species, in contravention of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The court had to determine whether the proposed burns would indeed have a significant impact on the species and if the EPBC Act's provisions concerning significant impact on matters of national environmental significance could apply to the Secretary's actions under the Forests Act 1958 (Vic). Additionally, the court needed to assess whether the EPBC Act interfered with the State's constitutional powers as per the Melbourne Corporation principle.

The court found that Section 18(3) of the EPBC Act applies to the Secretary's actions in conducting the planned burns, as these actions were not a lawful continuation of a use of land under Section 43B of the EPBC Act. The court ruled that the proposed burns were not an enlargement, expansion, or change in location resulting in a substantial increase in the impact on the land. Furthermore, the court determined that the Secretary's actions did not curtail or impair the State's capacity to function as a government or the exercise of its constitutional powers. The evidence presented did not establish that the planned burns would have a significant impact on the Southern Greater Glider. Therefore, the application for an injunction was dismissed.

In conclusion, the court held that the applicant had not demonstrated that the Secretary was engaging in, or proposing to engage in, an act or omission that constituted an offence or other contravention of the EPBC Act. As such, there was no basis for the grant of a prohibitory injunction under Section 475 of the EPBC Act. The applicant's originating application was dismissed, and the parties were invited to make submissions on the question of costs within 14 days after the delivery of the reasons for judgment.