South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales

[2024] NSWLEC 7

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7

Hearing dates:

23 January 2024, further written submissions 24 January 2024, 25 January 2024, 5 February 2024 and 6 February 2024

Date of orders:

7 February 2024

Decision date:

07 February 2024

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1) The applicant’s amended notice of motion filed 23 January 2024 is dismissed.

Catchwords:

INTERLOCUTORY APPLICATION – injunction – forestry operations – civil enforcement proceedings – integrated forestry operations approval under Part 5B of the Forestry Act 2012 (NSW) – standing to sue – whether the common law test for standing applies in civil enforcement proceedings – serious question to be tried – balance of convenience.

Legislation Cited:

Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) s 21

Associations Incorporation Act 2009 (NSW)

Biodiversity Conservation Act 2016 (NSW) ss 13.3, 13.14, 13.14A

Civil Procedure Act 2005 (NSW) s 56

Environmental Planning and Assessment Act 1979 (NSW) s 9.4

Forestry Act 2012 (NSW) Part 5B, ss 5, 69L, 69N, 69R(1), 69S, 69SB, 69SC, 69ZA

Land and Environment Court Act 1979 (NSW) s 20(1)(cga)

Land and Environment Court Rules 2007 (NSW) r 4.2(3)

National Parks and Wildlife Act 1974 (NSW) s 193

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

Uniform Civil Procedure Rules 2005 (NSW) Sch 7

Cases Cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

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

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

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1

Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 507

Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Environment East Gippsland Inc v VicForests [2009] VSC 386

Environment East Gippsland Inc v VicForests (2010) 30 VR 1; [2010] VSC 335

Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46

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

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

Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63

Robinson v Western Australian Museum (1977) 138 CLR 283; 16 ALR 623; [1977] HCA 46

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552; [1995] HCA 11

Tegra(NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA 1; [2007] NSWLEC 806

VicForests v Kinglake Friends of the Forest Inc

(2021) 66 VR 143; (2021) 248 LGERA 28; [2021] VSCA 195

Texts Cited:

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

Category:

Procedural rulings

Parties:

South East Forest Rescue Incorporated INC9894030 (Applicant)
Forestry Corporation of New South Wales (Respondent)

Representation:

Counsel:
J Korman and L Sims (Applicant)
I Hemmings SC and R Coffey (Respondent)
Solicitors:
XD Law (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s):

2024/17196

Publication restriction:

Nil

JUDGMENT

Introduction and procedural history

Procedural developments since the hearing on Tuesday, 23 January 2024

Substantive development since the hearing on Tuesday, 23 January 2024

Issues

SEFR’s evidence

The Wardell-Johnson report

FCNSW’s evidence

Relevant statutory provisions and legislative history

The CIFOA

General principles in relation to common law standing

(1) Whether determination of SEFR’s standing at common law to seek the relief sought in its amended notice motion is anterior to and distinct from the questions to be determined on its application for interlocutory relief, and whether that question is to be determined as a final matter, or on a prima facie basis

(2) Whether there exists standing at common law to bring civil enforcement proceedings to enforce compliance with the requirements of integrated forestry operations approvals

(3) Whether, if the Court is satisfied that there exists standing at common law to bring civil enforcement proceedings to enforce compliance with the requirements of integrated forestry approvals, SEFR has established that is has standing

(4) Whether, if the Court is satisfied that SEFR has standing to bring civil enforcement proceedings, the Court ought exercise its discretion to grant the interlocutory relief sought by SEFR

(a) whether there is a serious question to be tried

(1) The proper construction of the expression “den” as defined in Protocol 39 to the CIFOA

(2) The conditions of the CIFOA in relation to broad area habitat searches, specifically condition 57

(3) The approach to searches for den trees in a manner opined by Associate Professor Wardell-Johnson.

(b) the balance of convenience

Irreparable harm

Status quo/alternative processes available

Relief sought

Usual undertaking as to damages

Conclusions

Orders

JUDGMENT

Introduction and procedural history

1. By summons filed 15 January 2024, the applicant, South East Forest Rescue Incorporated (SEFR) commenced Class 4 civil enforcement proceedings seeking that the respondent, Forestry Corporation of New South Wales (FCNSW), be restrained from conducting any forestry operation as defined in Protocol 39 to the Coastal Integrated Forestry Operations Approval dated 16 November 2018 (CIFOA) unless “broad area habitat searches” are conducted in a manner that includes particular searches for “nest, roost or den trees” required by condition 57 of the CIFOA.

2. Condition 57 of the CIFOA specifies requirements for the carrying out of broad area habitat searches where forestry operations are to be conducted, and provides in Table 2 that the species that must be searched for include nest, roost or den trees, as listed in Table 4, chapter 4 of Protocol 39 to the CIFOA, “Definitions”, provides, inter alia, in relation to the meaning of “nest, roost or den”:

3. A den (specifically in relation to Petaurus australis, Petaurus norfolcensis and Petauroides volans) that includes, but is not limited to, a tree-hollow or other hole, crevice or fissure in a tree, which the subject species is seen entering or leaving. The dens may be used by the animal for roosting, sleeping, resting, breeding, raising young and communal congregations sheltering and/or the rearing of young;

4. mapped as:

a) Bird_Nest_Roost_Den’ spatial dataset; or

b) ‘Assessed_Bird_Nest_Roost_Den spatial dataset; or

5. a record in the NSW BioNet that is attributed to a record type E which is ‘nest/roost/den’.

3. SEFR also seeks a declaration “that if a tree has tree-hollows or other holes, crevices or fissures, and at least one of those tree-hollows or other holes, crevices or fissures is or has been used by Petaurus australis, Petaurus norfolcensis and Petauroides volans for roosting, sleeping, resting, breeding, raising of young and communal congregations, shelter, and/or the rearing of young, that tree is:

1. a “den tree” for purposes of Table 2 of the CIFOA Conditions; and

2. a “Glider (Petaurus australis, Petaurus norfolcensis and Petauroides volans) den tree” purposes of Table 4 of the CIFOA Conditions.”

4. Petauroides volans (the Southern Greater Glider) is currently listed as an endangered species under Division 1 of Part 2 of Schedule 1 to the Biodiversity Conservation Act 2016 (NSW) (BC Act). Petaurus australis (the Yellow-bellied Glider) and Petaurus norfolcensis (the Squirrel Glider) are currently listed as vulnerable species under Division 1 of Part 3 of Schedule 1 to the BC Act.

5. By notice of motion also filed 15 January 2024, SEFR seeks the following interlocutory relief (the notice of motion):

…

4. The Respondent be restrained until further order from conducting any forestry operation as defined in Protocol 39 of the Coastal Integrated Forestry Operations Approval (CIFOA) in:

a. the following compartments:

i. Compartments 41 and 43, Bulga State Forest; and

ii. Compartments 34, 35, 36, 37 and 39, Clouds Creek State Forest;

iii. Compartments 485 and 486, Currowan State Forest;

iv. Compartment 13, Moonpar State Foprest;

v. Compartments 208, 209 and 210, Shallow Crossing State Forest;

vi. Compartments 31, 32, 33, 36, 38, 41 and 42, Styx River State Forest; and

vii. Compartments 228, 232 and 233, Timbillica State Forest; or

b. alternatively, the following compartments:

i. Compartment 41, Bulga State Forest; and

ii. Compartment 36, Clouds Creek State Forest;

iii. Compartment 486, Currowan State Forest;

iv. Compartment 13, Moonpar State Forest;

v. Compartment 210, Shallow Crossing State Forest; and

vi. Compartment 41, Styx River State Forest; and

vii. Compartment 232, Timbillica State Forest;

unless

c. a survey has been conducted that:

i. identifies all trees within the area in which the relevant broad aera habitat search must be conducted pursuant to CIFOA Protocol 20.2(1)(a)-(c) that have tree-hollows or other holds, crevices or fissures (hollow-bearing trees); and

ii. involves examination of sufficient tree-hollow or other holds, crevices or fissures (hollows) in each identified hollow-bearing tree to determine whether at least one hollow is used by Petaurus australis, Petaurus norfolcensis, or Petauroides Volans for roosting, sleeping, resting, breading, raising of young and communal congregations, shelter, and/or the rearing of young (den); or

d. a survey has been conducted that is no less effective than the survey referred to in paragraph 4(c) above in identifying all hollow-bearing trees in the relevant area with at least one den; and

e. a 50-metre radius exclusion zone is retained around each tree identified in the surveys referred to in paragraphs 4(c) and 4(d) above as having at least one den.

6. The notice of motion seeking interlocutory relief was listed for mention on Wednesday, 17 January 2024 before Pepper J as duty judge. Her Honour made timetabling orders by consent for the filing of evidence and submissions, and listed the notice of motion before me as duty judge on Tuesday, 23 January 2024. Her Honour also noted a voluntary temporary inter partes undertaking given by FCNSW to SEFR to suspend forestry operations in the following State forest compartments until 4:00pm on 23 January 2024 (the inter partes undertaking):

a. Compartment 41 and 43, Bulga State Forest;

b. Compartment 34, 35, 36, 37 and 39, Clouds Creek State Forest;

c. Compartment 485 and 486, Currowan State Forest;

d Compartment 13, Moonpar State Forest;

e. Compartment 208, 209 and 210, Shallow Crossing State Forest;

f. Compartment 228, 232 and 233, Timbillica State Forest; and

g. Compartment 41, Styx River State Forest.

7. On Friday, 19 January 2024, SEFR served on FCNSW a proposed amended notice of motion, removing the compartments listed in prayer 4.a.i. to 4.a.iv and similarly 4.b.i. to 4.b.iv. of the notice of motion filed 15 January 2024 as a result of it having been established that FCNSW’s forestry operations in those compartments had concluded. In the proposed amended notice of motion, SEFR sought to include additional State forest compartments in relation to which it seeks interlocutory relief.

8. At the hearing of the notice of motion before me on Tuesday, 23 January 2024, FCNSW opposed the granting of leave to SEFR to amend its notice of motion and move on its proposed amended notice of motion to the extent that it related to additional State forest compartments. Mr Hemmings SC for FCNSW submitted:

The difficulty is actually knowing in fact whether we're prejudiced or not to be able to deal with these new compartments.

…

In our submission, it would be prejudicial to my client in those circumstances to expand the proceedings, it being accepted that if ultimately there can be a connected between any finding your Honour might make in these proceedings and those other compartments, night will follow day whatever happens in these proceedings with those, subject to matters of proof. So it’s not one that will lead to inconvenience, that is of the Court's time, where that inconvenience outweighs the potential prejudice to my client. So we oppose.

As we say, we received all that evidence but there's been no evidence to demonstrate to us what it is or why it is there’s been the late addition, what's caused that late addition and why it wasn't originally included in the proceedings.

9. I determined to grant leave to SEFR to rely on an amended notice of motion only to the extent that it removed compartments where the parties agree forestry operations are no longer being carried out, but not to add the additional compartments SEFR sought to be included (the amended notice of motion).

10. Accordingly, the compartments that remained as at 23 January 2024 the subject of SEFR’s amended notice of motion for interlocutory relief, being the subject of the primary relief sought, are as follows:

Compartments 208, 209 and 210, Shallow Crossing State Forest;

Compartments 31, 32, 33, 36, 38, 41 and 42, Styx River State Forest; and

Compartments 228, 232 and 233, Timbillica State Forest

11. The compartments that remained, as at 23 January 2024, the subject of the alternative relief sought in the amended notice of motion (being a subset of the compartments the subject of the primary relief sought) are as follows:

Compartment 210, Shallow Crossing State Forest;

Compartment 41, Styx River State Forest; and

Compartment 232, Timbillica State Forest

12. At the conclusion of the hearing on Tuesday, 23 January 2024, FCNSW extended its inter partes voluntary temporary undertaking dated 17 January 2024 until the delivery of judgment on SEFR’s amended notice of motion.

13. I indicated to the parties that I would endeavour to deliver judgment as expeditiously as possible.

Procedural developments since the hearing on Tuesday, 23 January 2024

14. On Wednesday, 24 January 2024, as directed at the hearing on Tuesday, 23 January 2024 SEFR filed and served submissions on the question of whether standing is determined on a final basis on an application for interlocutory relief, and a separate short submission on whether the Court may dispense with the usual undertaking as to damages where proceedings have been brought in the public interest.

15. On Thursday, 25 January 2024, also as directed at the hearing on Tuesday, 23 January 2024, FCNSW filed and served submissions of the questions of whether common law standing is available for civil enforcement proceedings, and the level of the Court’s satisfaction required on the question of standing.

16. On Monday, 29 January 2024, a representative of SEFR attended the Registry, seeking to file a further notice of motion (the proposed third notice of motion), further evidence including an affidavit of Natalija Nikolic affirmed 29 January 2024 and further written submissions. The proposed third notice of motion seeks interlocutory relief in relation to an additional 19 compartments in 6 State forests (the additional compartments) as follows:

3 The Respondent be restrained until further order from conducting any forestry operation as defined in Protocol 39 of the Coastal Integrated Forestry Operations Approval (CIFOA) in:

a. the following compartments:

i. Compartment 28, 29 and 30, Barrington Tops State Forest; or

ii. Compartments 48, 49, 50, 51, 52, 53, 54, and 55, Clouds Creek State Forest;

iii. Compartments 48, 49, and 50, Riamukka State Forest;

iv. Compartment 211, Shallow Crossing State Forest;

v. Compartments 43, 44, 45, Wild Cattle Creek State Forest;

vi. Compartment 216A, Currawan State Forest or

b. alternatively, the following compartments:

i. Compartment 28, Barrington Tops State Forest;

ii. Compartment 49, 52 and 53, Clouds Creek State Forest;

iii. Compartment 48 and 49, Riamukka State Forest;

iv. Compartment 211, Shallow Crossing State Forest;

v. Compartment 45, Wild Cattle Creek State Forest;

vi. Compartment 216A, Currawan State Forest

17. The proposed third notice of motion also sought an abridging of service and a listing for hearing on Wednesday, 31 January 2024.

18. Subsequently, on Monday, 29 January 2024, Registry wrote to SEFR’s legal representatives, copied to those of FCNSW, asking for confirmation that the proposed third notice of motion and supporting documents had been served on FCNSW. Registry also asked FCNSW to provide to chambers an indication of its position in relation to the abridging of service and the listing of the proposed third notice of motion for hearing on Wednesday, 31 January 2024.

19. On Tuesday, 30 January 2024, FCNSW’s legal representatives responded to Registry, confirming that they received a copy of the proposed third notice of motion and supporting documentation on 29 January 2024. FCNSW’s legal representatives also stated that “in the event that the Court is minded to bring the [proposed third notice of notice] expeditiously, the Respondent requests, if convenient to the Court, that the matter be listed on Friday, 2 February 2024.” FCNSW said that if the matter was to be heard on 31 January 2024, they would only have one business day to prepare.

20. Subsequently on Tuesday, 30 January 2024, the Court made directions in chambers to list the proposed third notice of motion for mention on Friday, 2 February 2024 at 10:00am.

21. On Thursday, 1 February 2024, FCNSW filed submissions, and on the morning of Friday, 2 February 2024 evidence, in relation to the proposed third notice of motion. FCNSW submitted that the evidence SEFR is relying on is materially the same as for the amended notice of motion, and therefore the Court’s determination of the amended notice of motion would be dispositive of the proposed third notice of motion. FCNSW submitted that “the most efficient use of the Court, and the parties time and resources is to list the [proposed third notice of motion] for hearing – if necessary – after the Court has given its decision in relation to the [amended notice of motion]”. FCNSW also submitted that SEFR had given “no further explanation” about the delay in making the proposed third notice of motion.

22. On the question of standing, FCNSW maintained its position that SEFR does not have standing, and “invited the Court to exercise its discretion to determine the question of standing” in relation to the relief sought in the amended notice of motion “as a final matter, not simply on a prima facie basis”.

23. On Friday, 2 February 2024, the proposed third notice of motion came before the Court for mention.

24. At the mention on Friday, 2 February 2024, Ms Sims appearing for SEFR made an application, not foreshadowed to the Court or FCNSW, seeking interlocutory relief in selected compartments where there have been recent glider sightings, and where, it was submitted, SEFR can give evidence that harvesting is being conducted or is imminent. Mr Hemmings for FCNSW confirmed that FCNSW declined to extend to the additional compartments the inter partes undertaking provided by FCNSW to SEFR on Tuesday, 23 January 2024. FCNSW provided the following information about the status of forestry operations in the additional compartments in relation to which SEFR now seeks interlocutory relief:

(i) forestry operations in the relevant compartments at Barrington Tops State Forest were approved on 16 October 2020, amended on 1 November 2023 and made public on 1 November 2023;

(ii) for Clouds Creek State Forest the approval was dated 12 July 2023 and made public on 12 July 2023;

(iii) for Riamukka State Forest the approval was dated 23 March 2023 and made public 24 March 2023;

(iv) for Shallow Crossing State Forest those works are complete;

(v) for Wild Cattle Creek State Forest the approval was 1 November 2023 and made public 1 November 2023;

(vi) for Currowan State Forest the approval was dated 16 October 2023 and made public on 16 October 2023.

25. Mr Hemmings submitted that “the Applicant was aware, or at least should be taken to be aware as a consequence of giving public notice of the approval of operations by condition 53.5 of the CIFOA, of those operations. It was taken to be aware of those operations at the time it commenced these proceedings. When it commenced these proceedings, it did not seek any relief against those compartments in those Forests.”

26. After hearing from the parties, the Court declined to grant the interlocutory relief sought orally from the Bar table, listed delivery of judgment on SEFR’s amended notice of motion for 2:00pm on Wednesday, 7 February 2024, and fixed the proposed third notice of motion for hearing for 10:00am on Thursday, 8 February 2024 following judgment on the amended notice of motion.

Substantive development since the hearing on Tuesday, 23 January 2024

27. After the mention on Friday, 2 February 2024, it came to the Court’s attention that on Wednesday, 31 January 2024, the NSW Environment Protection Authority (the EPA) had amended Protocol 31 to the CIFOA.

28. Protocols to the CIFOA set out additional enforceable actions and controls to support the implementation of the conditions in the CIFOA, and are amended from time to time by the EPA (unlike the CIFOA the conditions in which can only be amended jointly by the Minister for the Environment and the Minister for Agriculture: ss 69N and 69R(1) of the Forestry Act 2012 (NSW) (Forestry Act)).

29. Condition 21 of the CIFOA makes provision in relation to “site specific biodiversity conditions”. Condition 21.3(a) of the CIFOA provides:

the EPA has provided FCNSW with a site-specific biodiversity condition for either the record, site or species, and for a particular type or types of forestry operations, or forestry operations generally …

30. Protocol 31 to the CIFOA, titled “Matters covered by the approval” approved by the EPA on 31 January 2024 with effect from 9 February 2024, makes provision for flora species and endangered populations protected by the application of species-specific conditions. It provides in Part 4 “recreational species requiring development of site-specific biodiversity conditions in Table 1, species name “Petauroides volans”, common name “Greater Glider”.

31. It appears that on Friday, 2 February 2024, the EPA provided a new site-specific biodiversity condition for Greater Gliders in the CIFOA region as requested by FCNSW on 1 February 2024.

32. On Monday, 5 February 2024, the Court requested that the parties communicate to the Court by no later than 5:00pm whether that development affects the submissions they seek to make in relation to the amended notice of motion, and if so how.

33. On Monday, 5 February 2024 at 12:54pm, SEFR’s legal representative submitted as follows:

We confirm that the Applicant does not seek to make any submissions to the effect that the new site-specific biodiversity condition for the Greater Gliders in the CIFOA region supports either of the Applicant’s Notices of Motion.

In the event that the Respondent wishes to make any submissions to the effect that the development should dissuade the Court from granting the relief sought in either of the Applicant’s Notices of Motion, the Applicant would wish to be heard in response…

34. On Monday, 5 February 2024 at 5:51pm, FCNSW’s legal representative submitted as follows:

[t]he changes to the CIFOA, by the introduction of the site-specific biodiversity condition, further supports the Respondent’s submission in relation to the removal of standing (if otherwise able to be demonstrated) upon the current approach to the statutory regime (including s 69ZA).

The site-specific biodiversity condition makes a material change to the requirement of the [broad area habitat search]. Den trees for the Greater Glider (as defined in Protocol 39) are no longer required to be searched for. Rather, Greater Glider trees as defined in the site-specific biodiversity condition are now required to be searched for and retained in accordance with the site-specific biodiversity condition. They are identified by location and diameter.

The provision of additional protection for the Greater Glider by a methodology less onerous than that which the Applicant suggests is necessary to comply with the BAHS, demonstrates that the Applicant’s approach is inconsistent with the CIFOA and plainly wrong. The Respondent repeats its submission that the approach is so plainly wrong that the Applicant cannot demonstrate a prima facie case.

35. On Tuesday, 6 February 2024 at 9:06am, SEFR’s legal representative submitted in reply to the respondent’s submissions that the new site-specific biodiversity condition “does not affect SEFR’s submissions already made, because the EPA has no power to relieve FCNSW of its obligation under CIFOA Conditions 57 and 76 to look for, identify, record, and protect Greater Glider den trees.”

36. The Court has considered the further submissions of both parties, and does not consider them materially to alter the submissions already made by each of them and the subject of the Court’s conclusions recorded below.

Issues

37. The issues which arise for determination on SEFR’s amended notice of motion heard on Tuesday, 23 January 2024 are as follows:

1. Whether determination of the question of SEFR’s standing to seek the relief sought in its amended notice motion is anterior to and distinct from the questions to be determined on its application for interlocutory relief and whether that question is to be determined as a final matter or on a prima facie basis.

2. Whether there exists, notwithstanding the provisions in ss 69SB and 69ZA of the Forestry Act and ss 13.3, 13.14 and 13.14A of the BC Act, standing at common law to bring civil enforcement proceedings to enforce compliance with the requirements of integrated forestry operations approvals.

3. Whether, if the Court is satisfied that there exists standing at common law to bring civil enforcement proceedings to enforce compliance with the requirements of integrated forestry operations approvals, SEFR has established that is has such standing; that is that it has a special interest in the subject matter of the proceedings.

4. Whether, if the Court is satisfied that SEFR has standing to bring civil enforcement proceedings, the Court ought exercise its discretion to grant the interlocutory relief sought by SEFR, namely:

1. whether there is a serious question to be tried; and

2. the balance of convenience.

SEFR’s evidence

38. In support of the amended notice of motion, SEFR relied on two affidavits of Scott Daines, public officer and president of SEFR, both affirmed 14 January 2024, and two affidavits of Natalija Nikolic, solicitor on the record for SEFR, affirmed 15 January 2024 and 19 January 2024.

39. Mr Daines deposes to the founding of SEFR in 2001 and says that “SEFR has always operated under the banner of “South East Forest Rescue”, other than the period 2002-2003, when the association was known as “Earth Rescue”. He says that the association was formed “for the purposes of ending native forest logging in NSW”. At the time SEFR was formed, “there was also a specific objective of stopping the logging of compartments 2020 and 2021 of Badja State Forest.”

40. Mr Daines says that “[c]urrently, SEFR has:

a. six members; and

b. approximately 1,600 followers on Facebook”.

41. Mr Daines says that “[a]s of 2023, SEFR is governed by a committee formally made up of 3 people:

a. [Mr Daines], President and Treasurer;

b. Scott Mackenzie, Vice President; and

c. Lisa Stone, Secretary.”

42. Mr Daines says that the Committee and members of SEFR meet several times a year, that the Committee “otherwise is in constant contact with one another”, and that Lisa Stone and Mr Daines “run the day-to-day operations of SEFR”.

43. On 17 September 2010, SEFR was issued a Certificate of Incorporation as an Association by NSW Fair Trading pursuant to the Associations Incorporation Act 2009 (NSW). SEFR’s statement of objectives, included in its application to Fair Trading for incorporation provides that at all material times, in furtherance of its objects and purposes, SEFR will:

(a) carry out research, auditing and surveys of State forests and Forests NSW native forest logging operations.

(b) this auditing involves documenting breaches of the Regional Forest Agreements, Integrated Forestry Operations Approvals, Threatened Species Licences and Environment Protection Licences and other non-licence conditions by Forests NSW and logging contractors. These reports will then be sent to the relevant regulators.

(c) produce newsletters, articles and other written information about the environment of NSW.

(d) make submissions to Government.

(e) represent on Committees established by Government and community.

(f) conduct guided walking tours of State forest.

(g) conduct training and field days.

44. SEFR’s “vision statement” was also included in its application for incorporation. It provides:

South East Forest Rescue takes a firm stand on environmental protection of the native forest estate and acts with deep concern for the welfare of forest-dependent threatened species and the cumulative impacts of industrial degradation of native forests that are exacerbating extinction rates and destroying soil, water, and carbon capacity.

45. Mr Daines says that SEFR has a “vision statement” on its website (which is different to the vision statement quoted above at [44]). That vision statement provides:

Since 2001 South East Forest Rescue has taken a firm stand on environmental protection of the native forest estate, and acts with deep concern for the welfare of forest-dependent threatened species and the cumulative impacts of industrial degradation of native forests that are exacerbating extinction rates and destroying soil, water, and carbon capacity.

South East Forest Rescue calls for indigenous ownership of all public native forest, a complete stop on logging of endangered ecological communities, complete transfer of wood product reliance to the plantation timber industry and salvage recycled hardwood timber industry, a single authority for national native forest stewardship modelled on the New Zealand example, and an immediate nationwide program of catchment remediation and native habitat reafforestation.

We stand by our commitment to native forest protection and take all opportunities presented to advocate for native forest justice.

46. Mr Daines says that SEFR is a “founding member” of the South East Region Conservation Alliance (SERCA) which was “formed as the principal umbrella organisation for environmental groups in the southeast region of NSW”. In relation to SEFR’s role in SERCA, Mr Daines says as follows:

[s]ince 2011, SEFR representatives have frequently served as [SERCA’s] Convenor or Deputy Convenor:

a. 2011- 2012: Lisa Stone, Convenor

b. 2012-2013: Lisa Stone, Deputy Convenor

c. 2016-2017: Myself, Deputy Convenor

d. 2017 – February 2020: Myself, Convenor

e. Oct 2023 – present: Myself, Convenor

47. Mr Daines deposes that:

SEFR has been very active throughout its existence in directly opposing logging through protests, and in promoting community awareness of the importance of preserving native forests by arranging community engagement activities such as community days, family fun days, picnics and protests. These activities have taken place across various locations in New South Wales.

Table 1 below presents some examples of these activities:

48. Mr Daines deposes as follows in relation to SEFR’s activities focused on the Southern Greater Glider (Petauroides volans):

40. During 2023, against the background of the increasingly precarious position of the Southern Greater Glider (SGG), SEFR has been focussed on increasing awareness of and protections for the SGG. Activities aimed at protecting the SGG and its habitat include:

a. Performing nighttime surveys for Greater Glider den trees in Tallaganda State Forest on 23 September 2023.

b. Preparing and submitting a report to the EPA Crown Forestry Section titled Greater Glider den trees found in Tallaganda SF Cpt. 2451 dated 25 September 2023; A copy of this report is at pages 1218 to 1222. (75)

c. Performing joint surveys with World Wildlife Fund and Wilderness Australia for Greater Glider den trees in Tallaganda State Forest on 27 September 2023.

d. Preparing and submitting a joint report with World Wildlife Fund and Wilderness Australia to the NSW EPA titled Endangered greater glider den trees found in active compartments within Tallaganda SF dated 5 October 2023. A copy of this report is at pages 1223 to 1225. (76)

e. Performing survey of Compartment 34A, Flat Rock State Forest for Greater Glider den trees on 12 November 2023.

f. Preparing and submitting a breach report to the EPA Crown Forestry Section titled Breaches of Coastal Integrated Forestry Operations Approvals Conditions 76.1 Greater Glider den tree – Flat Rock SF Cpt 34A dated 13 November 2023. A copy of this report is at pages 1226 to 1228. (77)

g. Performing joint survey of Compartment 41, Styx River State Forest with Bellingen Activist Network on 4 December 2023.

h. Preparing and submitting a breach report to the EPA Crown Forestry Section titled Breaches of Coastal Integrated Forestry Operations Approvals Conditions 76.1 Greater Glider den tree – Styx River STX041 dated 5 December 2023. A copy of this report is at pages 113 to 117. (30)

i. Preparing a joint report with World Wildlife Fund and Wilderness Australia titled What extinction looks like: A report on den tree logging breaches in Tallaganda State Forest dated 10 November 2023. A copy of this report is at pages 198 to 213. (32)

49. SEFR also tendered a statement of agreed facts dated 22 January 2024 (the SOAF). In the SOAF, the parties agree the following:

The parties and the proceeding

1 The applicant is an incorporated association.

2 The respondent is a state-owned corporation established under section 5 of the Forestry Act 2012 (NSW) (Act).

3 On 15 January 2024, the applicant filed its summons in these proceedings and a notice of motion seeking injunctive relief (Motion).

4 On 19 January 2024, the applicant foreshadowed that it intended to seek leave to amend its Motion (Proposed Amended Motion). The Proposed Amended Motion varies the State forests (including adding additional State forests) for which the applicant seeks injunctive relief.

The legislative scheme – general

5 By section 69M(1) of the Act, approval for carrying out of forestry operations in State forests or other Crown-timber lands may be granted under Part 5B of the Act. Such an approval is called an integrated forestry operations approval (IFOAs).

6 By section 69M(2) of the Act, the carrying out of forestry operations to which an IFOA applies is subject to the terms of that approval.

7 IFOAs are granted jointly by the Minister for the Environment and the Minister for Agriculture (formerly the Minister for the Environment and the Minister for Lands).

8 The Coastal Integrated Forestry Operations Approval (CIFOA) was granted by the (then) Minister for the Environment and the (then) Minister for Lands in November 2018.

9 The CIFOA:

a. took effect on 16 November 2018;

b. applies and adopts the Protocols listed out in Part 2 of Schedule 1 of the CIFOA (CIFOA Protocols).

Status of forestry operations being conducted by the respondent

In relation to the State forests listed in the applicant’s Motion, the status of the operations and date by which the proposed operations were made ‘active’ on FCNSW Plan Portal is as follows:

#	State forest and compartment	Status	Date Operational plan was made ‘active’ on FCNSW Plan Portal
1.	Bulga State forest, Compartments 41 and 43	No operations	5 September 2023
2.	Clouds Creek State forest, Compartments 34, 35, 36, 37, and 39	Complete	3 March 2023
3.	Currowan State forest, Compartment 485 and 486	Complete	20 March 2023
4.	Moonpar State forest, Compartment 13	Complete	20 November 2023
5.	Shallow Crossing State forest, Compartment 208, 209 and 210	Ongoing	1 February 2022, 8 February 2022 and 14 July 2023
6.	Styx River State forest, Compartments 31, 32, 33, 36, 38, 41 and 42	Ongoing	7 March 2023
7.	Timbillica State forest, Compartments 228, 232 and 233	Ongoing	28 August 2023 and 5 October 2023

10 In relation to the additional State forests listed in the applicant’s Proposed Amended Motion, the status of the operations and date by which the proposed operations were made ‘active’ on FCNSW Plan Portal is as follows:

#	State forest and compartment	Status	Date Operational plan was made ‘active’ on FCNSW Plan Portal
1.	Barrington Tops State forest, Compartments 28, 29 and 30	Ongoing	6 November 2023
2.	Clouds Creek State forest, Compartments 48, 49, 50, 51, 53, 53, 54 and 55	Not yet commenced, delayed to 24 January 2024	Data not available
3.	Riamukka State forest, Cpts 48, 49, 50	Ongoing	26 April 2023 and 22 November 2023
4.	Shallow Crossing State forest, Compartment 211	Complete	1 February 2022, 8 February 2022 and 14 July 2023
5.	Wild Cattle Creek State forest, Compartments 43, 44, 45	Ongoing	1 November 2023

The Wardell-Johnson report

50. Annexed to Ms Nikolic’s affidavit of 15 January 2024 is a report prepared by Associate Professor Grant Wesley Wardell-Johnson dated 4 January 2024 and titled “Survey methodology by the Forestry Corporation of NSW for den trees of gliders” (the Wardell-Johnson report). In his report, Associate Professor Wardell-Johnson acknowledges that he has read the Expert Witness Code of Conduct set out in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW), and agrees to be bound by it.

51. Associate Professor Wardell-Johnson holds a Bachelor of Science and Master of Science in forestry and a Doctor of Philosophy (PhD) in botany. In his report, he says that he has written over 200 peer reviewed journal, book and conference articles, most of which are forest, fauna, flora, fire and/or disturbance related. From 1979 to 1996, Associate Professor Wardell-Johnson was employed as a Divisional Forestry Officer and Senior Research Scientist in the south-west forests of Western Australia in the Western Australian Forests Department and Department of Conservation and Land Management. He has held lecturer positions at the University of Namibia, Australian School of Environmental Studies and the University of Queensland. From 2008 to 2018, he was an Associate Professor in the Department of Environment and Agriculture at Curtin University. From 2018 to present, he is an Adjunct Associate Professor in the Centre of Mine Site Restoration and School of Molecular Life Sciences at Curtin University.

52. The letter of instructions to Professor Wardell-Johnson from XD Law dated 1 December 2023 provides as follows:

…

2. SEFR is anticipating commencing legal action to enforce the statutory scheme that binds the Forestry Corporation NSW (FCNSW) in so far as that scheme requires FCNSW to identify trees containing dens (den trees) used by Greater Gliders, Yellow-bellied Gliders, and Squirrel Gliders (collectively, Gliders).

53. In relation to the questions the subject of his instructions, XD Law’s letter provides as follows (emphasis added):

Gliders generally

Question one

22. Separately, for each of Petaurus australis, Petaurus norfolcensis, and Petauroides Volans, please provide your reasoned opinion as to:

a. The general characteristics of the species, including but not limited to:

i. The species’ social behaviour and movement patterns;

ii. The species’ range in NSW, with particular reference to the Northern and Southern CIFOA regions, as set out in the CIFOA regions map provided to you;

iii. The size and characteristics of the species’ home range;

iv. Characteristics of den trees occupied by members of the species, including their number, distribution over their home range, and importance to their survival.

b. The current conservation status and survival prospects of each species, including but not limited to:

i. The species’ current classification and the reasons for that classification;

ii. The prognosis for that species’ survival both locally and globally;

c. The impact, if any, of logging on the species’ survival both locally (in a particular area where logging is occurring) and globally;

d. The contribution that retention of every Glider den tree and a 50 metre buffer around every Glider den tree may have on:

i. The prognosis for that species’ survival both locally and globally;

ii. Ameliorating the impact, if any, of logging on the species’ survival both locally (in a particular area where logging is occurring) and globally;

Den tree surveys

Question two

23. Please provide your reasoned opinion as to:

a. Whether it is possible to reliably identify all den trees within the zone where logging is proposed to occur and the surrounding area;

b. If your answer to (a) is yes, please advise:

i. The survey methodology or methodologies;

ii. The survey protocol or protocols; and

iii. The minimum survey effort

which are required in order to reliably locate all den trees within the zone where logging is proposed to occur and the surrounding area

Have den tree surveys been conducted?

24. We refer you to the document bundles provided to you relating to logging in the following state forests in NSW:

a. Shallow Crossing State Forest;

b. Currowan State Forest;

c. Timbillica State Forest;

d. Flat Rock State Forest;

e. Moonpar State Forest;

f. Tallaganda State Forest;

g. Clouds Creek State Forest;

h. Bulga State Forest; and

i. Tuggolo State Forest.

25. We ask you to assume that:

a. The documents are screenshots or downloaded documents, obtain from the EPA Native Forests Viewer portal.

b. The information contained in those documents is accurate and timely.

c. As shown in the screenshot on page 6 of each bundle, there have been no detections of den trees in any of the forest areas the subject of the bundle.

Question three

26. Please provide your reasoned opinion, in relation to each of the compartments the subject of those document bundles, as to whether:

a. It was possible to detect den trees on the basis of the surveys that were conducted;

b. the surveys were compliant with any methodology, protocol, and survey effort identified in your answer to question 2(b) above;

c. on the basis of the above response, whether the requirement in Condition 57.2(c) of the CIFOA that a broad area search be conducted that will, among other things, identify Glider den trees has been complied with; and

d. the degree of confidence that you believe can be placed in your response to this question.

Impact of continued logging operations on Glider populations in the compartments the subject of the document bundles referred to in Question 3

27. Please refer to the document bundles referred to in Question 3.

Question four

28. On the basis of those documents, your specialised knowledge, and any further research you may undertake, please state your opinion as to:

a. whether it is likely that there are populations of Petaurus australis, Petaurus norfolcensis, and Petauroides Volans that will be impacted by logging operations in the compartments which the document bundles show are currently active in those State forests;

b. in the event that your answers, in respect of Question three (a), (b) and (c) were all negative what is the likely impact of the failure to conduct a broad area searches that will, among other things, identify Glider den trees on:

i. the Glider populations referred to in subparagraph (a) above generally; and

ii. individual Gliders using den trees that have not been detected and will be felled; and

iii. individual Gliders using den trees that will be retained as habitat trees without the requisite 50m buffer.

c. whether the likely impact identified in subparagraph (b) above could be ameliorated by the conduct of Glider den tree surveys whose methodologies, protocols and survey effort were consistent with those identified in your response to Question 2(b) above, and subsequent retention of identified den trees, with a 50 metre buffer around each den tree.

54. In his report, Associate Professor Wardell-Johnson opines that based on the material provided to him, “FCNSW’s surveys for glider dens were not scientifically valid or reliable, if indeed they were carried out at all”. SEFR’s written submissions note Associate Professor Wardell-Johnson’s conclusion that “FCNSW has not complied with CIFOA Condition 57.2(c) which requires a search that will, among other things, identify Glider den trees.”

55. Condition 57 of the CIFOA provides as follows in relation to broad area habitat searches:

57. Broad area habitat searches

57.1 A forestry operation (other than road maintenance) must not be conducted in any part of an operational area unless:

…

(b) a broad area habitat search has been undertaken in accordance with condition 57 of the approval in the patch that contains that part of the operational area;…

57.2 Each search must:

(a) be carried out by a suitably qualified person;

(b) be carried out in, and within 100 metres of, the base net area of the operational area;

(c) look for, identify, and record the habitat features and species listed in Table 2 of this condition; and

(d) be conducted in accordance with condition 20.2 and 20.5 of Protocol 20: Pre-operational surveys.

57.3 All habitat features or species listed in Table 2 and identified under condition 57.2(c), or which were not identified under that condition but identified later during the carrying out of forestry operations, must be:

(a) protected in accordance with the requirements for that habitat feature or species in the approval and the protocols; and

(b) mapped in accordance with condition 117 of the approval.

56. Table 2 titled “Habitat features or species” referred to in condition 57.2(c) includes “Nest, roost or den trees (as listed in Table 4, Chapter 4 titled “Protection of nest, roost or den” of the approval)”. That table in Chapter 4, “Operational Planning and Implementation”, provides for a 50 metre radius to exclusion zone to be retained around each nest, roost or den for “Glider (Petaurus australis, Petaurus norfolcensis and Petauroides volans) den trees”.

57. In answer to question one of his letter of instructions, specifically “c. The impacts, if any, of logging on the species’ survival both locally in a particular area where logging is occurring) and globally”, Associate Professor Wardell-Johnson opines:

1c Impact of logging on species survival

Greater Glider [Southern and Central – GGSC]

…

64. In conclusion, there is a real threat of serious and irreversible damage to the GGSC and its environment both locally and globally from intensive and extensive logging as currently practised in the northern and southern CIFOAs wherever this species occurs. This species is unlikely to survive locally, regionally, or globally through reliance on the protected area network, retention of individual habitat or feed trees, retention of stream zone buffers, or through set asides and other arrangements. Serious attention to the conservation of this species within the compartment, landscape (or forest block) and region (i.e., CIFOA) in areas managed for timber production is therefore required.

…

Yellow-bellied Glider (YBG)

…

72. In conclusion, there is a real threat of serious and irreversible damage to the YBG and its environment both locally and globally from intensive and extensive logging as currently practised in the northern and southern CIFOAs wherever this species occurs. This species is unlikely to survive locally, regionally, or globally through reliance on the protected area network, retention of individual habitat or feed trees, retention of stream zone buffers, or through set asides and other arrangements. Serious attention to the conservation of this species within the compartment, landscape (or forest block) and region (i.e., CIFOA) in areas managed for timber production is therefore required.

…

1d Contribution of retention of every glider den tree and associated 50 m buffer

Greater Glider [Southern and Central – GGSC]

…

80. Thus, there is a real threat of serious or irreversible damage to the GGSC and its environment from extensive and intensive logging without safeguarding each den tree (with a 50 m buffer) of this species. This requires either an understanding of the home range of the GGSC (see Wardell-Johnson and Robinson 2022), or the actual locations of each of the den trees that this species uses. Then, either the home range of individuals of this species can be set aside from logging (with associated other measures), or each of their den trees must be safeguarded with a 50 m unlogged buffer. One or other of these measures is necessary to avoid local (and potentially global) extinction of this species through the edge and fragmentation effects that have led to this once common species being declared Endangered.

…

Squirrel Glider (SG)

…

88. Thus, there is a real threat of serious or irreversible damage to the SG and its environment from extensive and intensive logging without safeguarding each den tree (with a 50 m buffer) of this species. This requires either an understanding of the home range of the SG (see Wardell-Johnson and Robinson 2022), or the actual locations of each of the den trees that this species uses. Then, either the home range of individuals of this species can be set aside from logging (with associated other measures), or each of their den trees must be safeguarded with a 50 m unlogged buffer. One or other of these measures is necessary to avoid local (and potentially global) extinction of this species through edge and fragmentation effects.

58. In answer to question two of his letter of instructions concerning den tree surveys, and the survey methodology or methodologies, the survey protocol or protocols and the minimum survey effort required to reliably locate all den trees within the zone where logging is proposed to occur and the surrounding area, Associate Professor Wardell-Johnson opines as follows:

Question two: Den Tree surveys

…

107. Regardless of OH&S considerations for tree climbing, this survey should also be informed by camera fitted drone-based assessment. A drone fitted with a thermal camera can be used to determine the presence of a glider within a den. However, not all dens will be occupied at the time of survey (actually, few will be). Therefore, a drone equipped with a red-blue-green (RGB) camera, is also necessary to detect most den trees. Signs of previous or regular occupancy (such as leaves and scratches) can then be ascertained. Note that various authors (e.g., Hofman et al. 2022; Goldingay et al. 2018; Crane et al. 2008) have demonstrated the types of hollow-bearing trees that might be expected to also be den trees. Therefore, the experience of field observers is a necessary component of any drone-based activity. It should also be noted that relatively small drones are required for this assessment.

59. Associate Professor Wardell-Johnson is of the opinion that “it is possible to reliably identify all den trees within the zone affected by forestry operations”. He recommends the following methodology involving a two-step process:

117. Nevertheless, it is necessary to assess all mature trees in the compartment and immediate surrounds (see Gordon et al. 2023) for signs of hollows. Regardless, a cursory walk or well-targeted walk – even well-intentioned is insufficient to detect all hollow-bearing trees, all hollows, or indeed all potential den trees. Thus, it is essential for transects to be carried out at sufficient proximity (usually less than 50 m apart) to be certain of detecting all hollow-bearing trees for detailed inspection. Thus, a key component of the target resource approach is the necessity to accurately allocate hollow-bearing tree to den site, geolocate, and mark on the ground. In the context of foreshadowed intensive logging, the goal is not a generalised hollow-bearing tree survey.

118. In summary, a two-stage process is required in assessment of den trees for gliders in the State forests of New South Wales. At present, assessing whether compartments proposed for intensive logging include den sites of gliders requires thorough survey in all compartments that include trees beyond the immature growth stage (see Bradshaw and Rayner 1997). This involves:

i. Reconnaissance and survey for hollow-bearing trees (Stage one) to ensure thorough coverage of the compartment and surrounds (transects to be no more than 50 m apart). In other words, all hollow-bearing trees within the target area must be located, for detailed assessment of potential den trees.

ii. Diurnal den surveys throughout the compartment (and surrounds – to 100 m beyond the compartment as required where den trees are known, or likely to occur), ensuing full coverage of the compartment and its immediate surrounds (Stage two). Thorough den survey requires the use of climbing equipment (as appropriate) together with the use of drones (as appropriate) to enable examination of hollows to determine signs of occupancy, previous occupancy, and occupant species. This field component involves considerable planning and must be conducted by a team with excellent tree-climbing, drone, and ecological experience. It could be carried out at the same time or by the same personnel as those conducting Stage one.

60. In answer to question 3(a) and (b) of his letter of instructions, Associate Professor Wardell-Johnson opines:

126. The surveys conducted in each of the 11 compartments for which I have been provided information were incomplete surveys for hollow-bearing trees. Surveys for hollow-bearing trees are part of the process toward identifying den trees of gliders. However, it is not the only necessary component if it is desired to detect all den trees of gliders.

127. Thus, it is not yet possible (with the data provided to me) to say whether one or other of these hollow-bearing trees was or was not a glider den tree. It should be noted that numerous hollow-bearing trees were detected in each of the 11 State forest compartments provided to me. It should also be noted that Bionet records show some to many YBGs or SGGs in (or in very close proximity to) each of these compartments. Therefore, it is virtually certain that numerous glider den trees occur (or occurred) in each one of these 11 compartments. None were found using the methods employed hollow bearing tree contains, and whether these hollows are (or are not) glider dens is necessary. It may also be appropriate to carry out surveys at night using spotlight protocols discussed by Wardell-Johnson and Robinson (2022), radio tracking, or appropriate drone surveys (with appropriately developed protocols). However, this follow-up work is not essential provided that all glider dens have been located within proximity to the foreshadowed compartment.

129. In short, I have not been provided with the follow-up survey results or protocols concerning hollows or the linking of these hollows to gliders (i.e., assignation of particular hollows to glider den trees). Thus, I am missing the data associated with each hollow and any indications as to why each hollow was or was not designated as a glider den. Similarly (should the animal target approach having been favoured) I have not been provided any information linking glider detections to any particular hollow-bearing or den tree.

130. I cannot judge from the material presented whether all hollows were detected or whether effective surveys of those hollows that were detected could be reliably designated (or not) as den trees. If such den surveys were not conducted, then the exercise of identifying hollow-bearing trees serves only to demonstrate that logging of mature forest is taking place without regard to the presence or absence of gliders or their dens.

61. In relation to compliance with condition 57.2(c) of the CIFOA (question 3(c) of the letter of instructions), Associate Professor Wardell-Johnson opines as follows:

132. Therefore, based on the material presented to me, I must assume that no attempt was made to detect glider dens or to relate glider dens to hollow-bearing trees. Thus, surveys were not compliant with any methodology, protocol, or survey effort requirement in relation to detecting glider dens, survey protocols or minimum survey effort. In other words, surveys for glider dens were at best neither valid nor reliable scientifically (see Paragraphs 5, 6, 7 and 8 of the background information on science, ecology and forests). It is therefore possible to assume that glider den surveys were not actually done at all.

133. Therefore, I have to conclude that the requirement in Condition 57.2 (c) of the CIFOA ‘that a broad area search be conducted that will, among other things, identify Glider den trees’ has not been complied with. Some (in fact many – but not all) hollow-bearing trees have been identified. However, it is not possible to say based on the information presented whether these were or were not glider den trees. As discussed above, much more work is required to identify glider den trees.

134. Based on the material presented to me, I am 100% confident that it cannot be said from the data provided to me whether any or all of the many hollow-bearing trees identified is or is not, a glider den tree. I am 100% confident that hollow-bearing trees were identified, though I cannot make a judgement as to whether all (or even most) of the hollow-bearing trees in and around the proposed compartments were identified.

62. In its written submissions, SEFR says that Associate Professor Wardell-Johnson “warns that logging operations will kill all or most of the Gliders in a compartment if Glider den trees are not identified, retained and protected, and render the environment hostile to Gliders and other mature-forest dependent species for upwards of 50 years”. His evidence is that gliders resident in the den trees that have not been detected and are felled “will die either at the time of the logging operation or soon after, most likely as a result of predation.” Further, SEFR submits, Associate Professor Wardell-Johnson considers that “[e]ven where a retained hollow-bearing tree happens to be a den tree, failure to retain 50-metre radius exclusion zones means resident Gliders will suffer a “very similar” impact to Gliders whose den trees are felled. Extreme “edge effects” will render resident Gliders vulnerable to predation, exposure and starvation, and the retained tree itself is vulnerable to destruction by windthrow.”

63. SEFR also refers to Associate Professor Wardell-Johnson’s opinion “that if logging operations commence or continue in any of the 11 compartments without conduct of effective Glider den tree surveys it is virtually certain that serious and irreparable damage to the Gliders and their environment will occur.”

FCNSW’s evidence

64. For the purpose of the interlocutory hearing on 23 January 2024, FCNSW took no objection to any of the material relied on by SEFR in the two affidavits of Mr Daines, both affirmed 14 January 2024, the two affidavits of Ms Nikolic affirmed 15 January 2024 and 19 January 2024, the Wardell-Johnson report, or the tendered material.

65. FCNSW read an affidavit of Anneliese Catrina Korber Moriarty, solicitor on the record for FCNSW, sworn 21 January 2024. Ms Korber deposes that she is instructed by FCNSW that SEFR’s amended notice of motion lists State forests in three FCNSW administrative subregions: Lower North East Subregion, Upper North East Subregion and Southern Subregion.

66. Ms Korber says that she is instructed by FCNSW that its Plan Portal is used by FCNSW personnel and “by default, records on the Plan Portal are for internal FCNSW access and use”. Ms Korber says that “certain information can be ‘tagged’ by a FCNSW employee and made accessible to registered members of the public”. Ms Korber is instructed by FCNSW “that [t]he record for each forestry operation is referred to by reference to be relevant operational plan” and “an operational plan will generally be changed to active shortly before harvesting is anticipated to commence”.

64. Exhibited to the affidavit of Ms Korber are data extracts showing “the upload date of the operational plans, the date the operational plan was tagged ‘public’ and the date that the operational plan turned to ‘active’” on Plan Portal for each of the operational plans which are identified in the amended notice of motion. Ms Korber, instructed by FCNSW, provides the following information on the status of operations the subject of the amended notice of motion as at 23 January 2024:

…

Styx River, Compartments 31, 32, 33, 36, 38, 41 and 42: harvesting

commenced on 15 June 2023 and are approximately 70% complete.

Operations in compartments 32 and 33 are complete.

…

Shallow Crossing, Compartments 208, 209 and 210: harvesting

commenced on 31 May 2023. Harvesting is approximately 80% complete and

is expected to be completed in a few weeks.

…

Timbillica, Compartments 228, 232 and 233: harvesting is completed in

compartment 228 and is ongoing in compartments 232 and 233. Harvesting

commenced on 29 August 2023 and has approximately 9 — 10 weeks left to

complete.

Relevant statutory provisions and legislative history

68. Section 69L of the Forestry Act provides in relation to the purpose of integrated forestry operators approvals as follows:

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.

(2)  In this section—

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.

69. Section 69SA of the Forestry Act provides as follows in relation to the offence of contravening a requirement imposed by an integrated forestry operations approval:

69SA   Offence of contravening requirements of approval

(1)  A person who contravenes a requirement imposed by an integrated forestry operations approval is guilty of an offence.

Maximum penalty—

(a)  for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment—

(i)  in the case of a corporation—$5 million, or

(ii)  in the case of an individual—$1 million, or

(b)  for any other offence—

(i)  in the case of a corporation—$2 million, or

(ii)  in the case of an individual—$500,000.

(2)  This section applies to requirements (however described) imposed on the Forestry Corporation or on persons carrying out forestry operations and whether arising before, during or after the carrying out of forestry operations.

(3)  The higher maximum penalty under this section does not apply unless—

(a)  the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, and

(b)  the court attendance notice or application commencing the proceedings alleged that those factors applied to the commission of the offence.

If any such allegation in the notice or application is not established by the prosecution, the lower maximum penalty under this section applies (whether or not the notice or application is amended).

(4)  This section does not operate to preclude the commission of an offence under Part 5A of the Local Land Services Act 2013, the Environmental Planning and Assessment Act 1979, the Protection of the Environment Operations Act 1997, the Biodiversity Conservation Act 2016 or Part 7A of the Fisheries Management Act 1994 in relation to the carrying out of forestry operations.

70. Section 69SB of the Forestry Act provides in relation to the enforcement functions of the EPA:

69SB   Enforcement functions of EPA

(1)  The Environment Protection Authority 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 integrated forestry operations approvals.

(2)  The Biodiversity Conservation Act 2016 contains provisions relating to the enforcement of this Part, and accordingly—

(a)  functions under Part 6 of this Act (Investigations and enforcement powers) are not exercisable in relation to any matter arising under this Part, and

(b)  proceedings for an offence against this Part or the regulations under this Part cannot be instituted under Part 7 of this Act (Criminal proceedings and related matters) and that Part does not apply to any such alleged offence.

…

(3)  In this section—

enforcing compliance includes instituting criminal or civil proceedings.

monitoring includes investigating and reporting.

71. Section 69SC of the Forestry Act provides in relation to the recovery by the EPA of the reasonable costs in exercising its function of monitoring the carrying out of forestry operations and the function of enforcing compliance with the requirements of integrated forestry approvals:

69SC   Enforcement cost recovery

(1)  The Corporation is required to pay to the Environment Protection Authority such annual licence fees in relation to integrated forestry operations approvals as are determined by the Ministers granting those approvals.

(2)  Any such annual licence fees are payable for the purpose of the recovery of the reasonable costs incurred by the Environment Protection Authority in exercising its function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of integrated forestry operations approvals.

(3) Until any such annual licence fees are determined, the Corporation is required to pay to the Environment Protection Authority the annual licence fees payable in respect of the environment protection licences deemed to have been granted under Division 3 before its repeal by the Forestry Legislation Amendment Act 2018.

72. In relation to proceedings brought by third parties, s 69ZA of the Forestry Act provides:

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.

73. Section 7(1) of the Protection of the Environment Administration Act 1991 (NSW) provides in relation to the general responsibilities of the EPA:

7 General functions of authority

(1) The Authority has such environment protection and other functions as are conferred or imposed on it by or under the environment protection legislation or any other legislation.

74. Section 13.3(1) of the BC Act provides in relation to authority to take criminal proceedings for an offence against the Forestry Act or the regulations:

13.3   Authority to take proceedings

(1)  Any legal proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may only be taken by a police officer, by the Environment Agency Head or by a person duly authorised by the Environment Agency Head in that behalf, either generally or in any particular case.

75. Section 13.14(1) of the BC Act provides (emphasis added):

13.14   Civil proceedings to remedy or restrain breaches of this Act or regulations (or Part 5A or 5B of the Local Land Services Act 2013)

(1)  Any person (including the Environment Protection Authority) may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of—

(a)  this Act or the regulations, or

(b) Part 5A or Part 5B of the Local Land Services Act 2013 or the regulations under that Part.

And s 13.14A(1) of the BC Act provides (emphasis added):

13.14A   Civil proceedings to remedy or restrain breaches of Part 5B of Forestry Act 2012

(1)  The Environment Protection Authority may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of Part 5B of the Forestry Act 2012.

76. On 27 June 2018, the Forestry Legislation Amendment Act 2018 (2018 Amendment Act) received royal assent. Among the suite of amendments, s 69S was repealed and replaced by ss 69SA, 69SB and 69SC which are reproduced above.

77. Prior to the commencement of the 2018 Amendment Act, s 69S of the Forestry Act provided in relation to the civil enforcement of certain conditions of approval:

69S Civil enforcement of certain conditions of approval

(1)  In this section:

breach includes a threatened or apprehended breach.

conditions means any conditions subject to which forestry operations covered by an integrated forestry operations approval may be carried out (other than the terms of a relevant licence set out in the approval).

relevant Minister, in relation to an integrated forestry operations approval, means a Minister who is a party to the approval (other than the Minister administering Part 3 of this Act).

Note—

Section 69V makes provision with respect to the enforcement of the terms of a relevant licence.

(2)  A relevant Minister may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the conditions of an integrated forestry operations approval.

(3)  Any such proceedings may be brought whether or not any right of the relevant Minister or the State has been or may be infringed by or as a result of the breach.

(4)  If the Land and Environment Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.

(5)  Without limiting the powers of the Court under this section, an order under this section may suspend an approval with respect to the forestry operations concerned in the breach.

78. The explanatory note to the Forestry Legislation Amendment Bill 2018 (NSW) states the following in relation to the extension of the BC Act:

Schedule 3 Amendment of other Acts and instruments

Schedule 3.1 amends the Biodiversity Conservation Act 2016 generally to extend the application of the enforcement provisions of that Act to the enforcement by the Environment Protection Authority of the proposed provisions of the Local Land Services Act 2013 relating to private native forestry and the proposed amended provisions of the Forestry Act 2012 relating to public native forestry, and for other related purposes. Those enforcement provisions currently extend to the native vegetation (land management) provisions of the Local Land Services Act 2013.

The CIFOA

79. Part 5B of the Forestry Act applies to integrated forestry operations approvals. The integrated forestry operations approval applicable to the forestry operations in the compartments the subject of the amended notice of motion is the CIFOA. The CIFOA contains in the order of 122 conditions, and some 40 protocols which support various requirements in the CIFOA.

80. Condition 57 (in Division 1) in relation to broad area habitat searches is reproduced above at [55]. As there noted, Table 2 titled “Habitat features or species” referred to in condition 57.2(c) includes “Nest, roost or den trees (as listed in Table 4, Chapter of the approval)”.

81. In Division 4 “Species-specific conditions for fauna”, condition 76 of the CIFOA provides in relation to nests, roosts or dens:

76. Nest, roost or den

76.1 An exclusion zone must be retained around each nest, roost or den as specified in Table 4.

82. Table 4 titled: “Protection of nest, roost or den” specifies that a 50 metre radius exclusion zone is to be applied in relation to “Glider (Petaurus australis, Petaurus norfolcensis and Petauroides volans) den trees”.

83. As reproduced above at [2], in the definition of “nest, roost or den” in Protocol 39 to the CIFOA titled “Definitions” a “den” is defined as follows (emphasis added):

3. A den (specifically in relation to Petaurus australis, Petaurus norfolcensins and Petauroides volans) …that includes, but is not limited to, a tree-hollow or other hole, crevice or fissure in a tree, which the subject species is seen entering or leaving. The dens may be used by the animal for roosting, sleeping, resting, breeding, raising young and communal congregations sheltering and/or the rearing of young.

84. In Division 1 of Chapter 1, “Interpretation of the approval”, condition 4 of the CIFOA provides as follows in relation to outcome statements:

4. Outcome Statements

4.1 The approval must be interpreted in a manner that is consistent with achieving and giving effect to the outcome statements. The outcome statements do not otherwise form part of the approval and are not enforceable on their own.

4.2 The protocols must be interpreted in a manner that is consistent with achieving and giving effect to the outcome statements.

85. In Division 1 of Chapter 4, “Planning assessments and surveys” the CIFOA provides:

Outcome statement for Division 1 of Chapter 4 of the approval

Environment features, habitat and risks are identified to ensure that protections and management actions are implemented to mitigate the impact of the forestry operation.

86. In Division 4 of Chapter 4, “Species-specific conditions for fauna” the CIFOA provides:

Outcome statement for Division 4 of Chapter 4 of the approval

Site-specific measures are implemented to mitigate the impact of the forestry operation on fauna species and their habitat, and to support their persistence.

General principles in relation to common law standing

87. The common law test for standing where a private person or entity seeks to bring a proceeding to enforce public right or duty was articulated by Gibbs J in Australian Conservation Foundation v Commonwealth (ACF v Commonwealth) ^[1] at 526 as follows:

It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.

And 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.

1. (1980) 146 CLR 493 at 526, 530-531; [1980] HCA 53 (Gibbs J).

88. In Onus v Alcoa of Australia Ltd (Onus v Alcoa), which concerned the standing of members of the Gournditch-jmara people to restrain the construction of a smelter that would threaten indigenous relics, Stephen J said at 42 that the special interest test for standing does not contain a formula “capable of mechanical application”, but instead requires “in each case a curial assessment of the importance of the concern which a plaintiff has with a particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter”. ^[2]

    2. (1981) 149 CLR 27 at 42; [1981] HCA 50 (Stephen J).

89. Brennan J said at 73:

A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests — interests in the environment, in historical heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for proprietary or pecuniary damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement. ^[3]

3. (1981) 149 CLR 27 at 73; [1981] HCA 50 (Brennan J).

90. In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), the High Court observed at 558 that the special interest test is flexible and that its content in a given case will be dictated by the nature and subject matter of the litigation. ^[4] That observation was referred to by Gaudron, Gummow and Kirby JJ in Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (Bateman’s Bay) as follows at [46]:

1. SEFR’s public officer and president, Mr Daines deposes that SEFR having been active throughout its existence across various locations in NSW, in opposing logging and promoting community awareness of the importance of preserving native forests. He provides examples of protests and community engagement activities organised by SEFR commencing on 16 May 2001 and continuing until 21 November 2023. These are set out in the table reproduced at [47] above. Mr Daines also provides several examples of the NSW government increasing protection of native forests after SEFR’s protest activities; for example on “25 September 2007 and 1 June 2009, SEFR conducted protest actions in the … Moira and Millewa State Forests … [b]oth forests were subsequently protected as part of the Murray Valley National Park.”

2. Mr Daines also deposes to post logging audits SEFR “regularly conducts” involving grid searching compartments to document breaches of environmental legislation and to “[send] … breach reports” to the relevant NSW and Commonwealth environmental departments.

3. Mr Daines refers to litigation brought by SEFR on three previous occasions seeking to protect NSW native forests from logging (in each of which SEFR sought judicial review) and, on one occasion, from open cut mining.

4. Mr Daines provides evidence in relation to SEFR’s contributions to publications about issues relating to the protection of native forests and their native flora and fauna, and in relation to the media presence of SEFR.

5. Mr Daines also provides some evidence of submissions as to SEFR’s contribution, as a founding member of SERCA, which was established in September 2005 and incorporated on 2 June 2008. He says that SEFR representatives have “frequently served” as SERCA’s convenor or deputy convenor. However, the evidence of Mr Daines was somewhat opaque as to the activities of SERCA, its membership, and the experience and background of its convenors and members.

6. Mr Daines also provided some evidence of activities SEFR focused on increasing awareness of and protections for Southern Great Gliders (see above at [48]) during 2023.

136. Ultimately, however, the Court is not satisfied that however genuinely held its concerns, and however conscientious and industrious in pursuit of its objects and conduct of its activities, that SEFR has demonstrated a prima facie case for standing at common law to bring these proceedings. In concluding that SEFR has failed to establish the requisite special interest, I have regard to the following matters:

1. SEFR is registered as South East Forest Rescue Incorporated. The compartments the subject of the relief sought in the amended notice of motion are in three FCNSW sub-regions: Lower North East subregion, Upper North East subregion and Southern subregion.

2. SEFR was formed for the purposes of “ending native logging in NSW”. Notwithstanding that, the evidence is that its activities have largely been focussed in South East NSW. Moreover, and significantly these proceedings are concerned with the protection of Southern Great Gliders.

3. The evidence of Mr Daines, whilst detailed, is unclear as to the role and activities of each of the six members of SEFR, and others, in pursuit of the objects of SEFR, as well as the knowledge and experience of any of them, including Mr Daines, in relation to the protection of native forests in NSW and Southern Great Gliders in particular.

4. The meetings of SEFR’s governing committee (as of 2023 made up of 3 people) and its six members several times a year occur virtually via video conferencing platforms and telephone, with the day-to-day operations of SEFR being run by Lisa Stone (who joined as a member in 2006) and Mr Daines. The day-to-day operations of SEFR, its resources and sources of funding are not the subject of evidence.

5. Mr Daines deposes to activities of SEFR commencing around 23 September 2023, that is recently, aimed at protecting Southern Great Gliders and their habitat.

137. Whist each case will turn on its facts, the composition and history of SEFR is to be contrasted with that of the ACF where in ACF v Commonwealth, the ACF was able to demonstrate its special interest was in forests that are part of the National Estate; that it was established with government financial support to concern itself with issues the subject of the proceedings; and that it was the pre-eminent body concerned with that issue. SEFR is not akin to the ACF in terms of scale, pre-eminence, membership, government funding or government recognition.

138. Also, as Brennan J observed in Onus v Alcoa at 75, in determining standing “it is also material to consider whether [a] plaintiff has shown so distinctive an interest that his actions to enforce the defendant’s public duty is likely to avoid a multiplicity of proceedings”.

139. Finally, Mr Daines’ affidavits show a deep and long-standing interest in native forests manifested in SEFR’s activities. However, the evidence before the Court does not establish a prima facie case that the activities of SEFR are undertaken as a group that manifest itself in the incorporated association: see Binginwarri Niall JA at [61]-[62] albeit on different facts.

140. The Court is not satisfied that SEFR has established, even on a prima facie basis, that it has a sufficient special interest to bring these proceedings to enforce the conditions of the CIFOA.

(4) Whether, if the Court is satisfied that SEFR has standing to bring civil enforcement proceedings, the Court ought exercise its discretion to grant the interlocutory relief sought by SEFR

141. Having determined that SEFR lacks standing at common law to bring these proceedings, the Court will consider briefly whether, if it be wrong on the question of special interest, it would grant the interlocutory relief SEFR seeks on the amended notice of motion.

142. In determining whether to grant an interlocutory injunction, the Court has to decide:

1. whether there is a serious question to be tried or that the applicant has made out a prima facie case; and

2. whether the balance of convenience favours the granting of an injunction. ^[15]

(a) whether there is a serious question to be tried

15. Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153; [1986] HCA 58 (Mason ACJ); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [13] (Gleeson CJ); Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3; [1968] HCA 1 (Kitto, Taylor, Menzies, Owen JJ).

143. SEFR’s amended notice of motion and the evidence relied on in support of it raise three questions:

1. the proper construction of the expression “den” as defined in Protocol 39 to the CIFOA, extracted above at [2];

2. the conditions of the CIFOA in relation to broad area habitat searches, specifically condition 57;

3. the approach to searches for den trees in a manner opined by Associate Professor Wardell-Johnson.

144. Neither party provided detailed submissions in relation to whether there is a serious question to be tried.

(1) The proper construction of the expression “den” as defined in Protocol 39 to the CIFOA

145. In written submissions, SEFR submitted that the expression “den” as defined in Protocol 39 of the CIFOA (and extracted above at [2]) “does not prescribe any indicators which confirm the presence of a den, but merely provides an example of one such indicator: a Glider observed entering or leaving a tree-hollow”.

146. SEFR said that “FCNSW maintains that the definition of ‘den’ in relation to Gliders ‘requires that the subject species be seen entering or leaving the den’” and “unless and until such a sighting has occurred, the tree does not relevantly contain a ‘den’”. This is a reference to an exhibit to the affidavit of Ms Nikolic affirmed 15 January 2024, which is a letter dated 21 December 2023 from FCNSW to Ms Nikolic in response to letters to FCNSW on behalf of SEFR dated 12 December 2023, 14 December 2023 and 19 December 2023.

147. SEFR submitted that FCNSW’s interpretation of the expression “den” “must be rejected” because “it runs counter to the plain meaning of the legislative text, and frustrates rather than facilitates achievement of and giving effect to the Outcome Statements for Divisions 1 and 4 of Chapter 4 [of the CIFOA]”. The Outcome Statements are extracted above at [84] to [86].

148. FCNSW submitted that “[c]ontrary to the Applicant’s approach to the definition, the requirement that the subject species be seen entering or leaving the physical feature of the tree is an essential element of the definition”.

149. In oral submissions, Mr Hemmings for FCNSW “accepted” that “the Associate Professor … believes that there are more dens than just those that you will see the subject species entering and leaving from”. However, “the only thing [FCNSW] is required to look for, identify and protect are those things that are defined by the instrument.”

150. I find that the gravamen of SEFR’s complaint in relation to the construction of the definition of “den” is with the definition itself, and does not raise a serious question to be tried concerning the lawfulness of compliance by FCNSW with a requirement of the CIFOA.

(2) The conditions of the CIFOA in relation to broad area habitat searches, specifically condition 57

151. In written submissions, SEFR submitted that the “CIFOA prohibits FCNSW conducting forestry operations in any part of an operational area unless it has conducted a broad area habitat search in accordance with CIFOA condition 57, which requires, among other things, that FCNSW ‘look for, identify, and record’ Glider den trees situated in the operational area.”

152. SEFR submitted that condition 76 of the CIFOA requires FCNSW to retain a 50-metre exclusion zone around each Glider den tree, and that if Glider den trees are not identified “50-metre exclusion zones will not be retained – even if the den tree itself is retained.”

153. SEFR referred to evidence it has collated “in relation to 11 compartments identified by FCNSW as ‘active’ in which Gliders have recently been detected”. Annexed to its written submissions filed 15 January 2024, SEFR provided the following table:

154. The data in the table is extracted from some 777 pages exhibited to the affidavit of Ms Nikolic of 15 January 2024 which she says were sourced using “an open-source Geographic Information System program”, “FCNSW’s website” and “[a] website operated by the NSW Government …[BioNet]”.

155. The Court notes that the only State forests and compartments in the table that are listed in the amended notice of notion are Shallow Crossing State forest compartment 210, Styx River State forest compartment 41 and Timbilica State forest compartment 232. The exhibit to Ms Nikolic’s affidavit contains no evidence in relation to compartments 208 and 209 in Shallow Crossing State forest, compartments 31, 32, 33, 36, 38 and 42 in Styx River State forest or compartments 228, 232 and 233 of Timbilica State forest, which are the subject of the amended notice of motion.

156. In its written submissions filed 15 January 2024, SEFR submits that the “critical finding” from the lay evidence collated in the table is as follows:

The critical finding is that 69 Southern greater gliders and Yellow-bellied gliders have been detected since 1 January 2020 in or near the 11 compartments, and some 770 hollow-bearing trees have been retained nearby, yet FCNSW has identified, recorded, and protected only 1 den tree in the vicinity of those 69 Gliders.

Gliders use multiple den trees, South greater gliders each occupy up to 20 den trees. Common sense therefore suggests there were hundreds of den trees in the vicinity of the 69 Gliders – which FCNSW failed to identify, record, and protect.

SEFR’s lay evidence establishes that, prima facie, FCNSW is systemically breaching CIFOA Conditions 57.2 and 76.1 which require it to identify, record, and protect Glider Den Trees. FCNSW’s correspondence establishes that, unless restrained, it will continue to conduct its operations in breach of those Conditions.

157. FCNSW submitted that “[t]he CIFOA requires every Den Tree that is found, either through the BAHS or at any later time, to be protected. The CIFOA does require adequate searches by competent persons, but it does not – at least in relation to the Den Trees – require perfection.”

158. Again, I am not satisfied that the lay evidence relied upon by SEFR and the Wardell-Johnson report raise a serious question to be tried concerning the lawfulness of compliance by FCNSW with a requirement of the CIFOA.

(3) The approach to searches for den trees in a manner opined by Associate Professor Wardell-Johnson.

159. Associate Professor Wardell-Johnson’s opinion relates to the appropriate methodology for identifying all den trees (extracted above at [59]).

160. In written submissions, FCNSW submitted that “the Applicant seeks to describe and then prescribe its own approach to the carrying out of a search for a Den Tree”. FCNSW submitted that “[f]or identified species and in specific circumstances, the CIFOA spells out the requirements for carrying out – for example – a species specific search. In those circumstances a species must not only be searched for, it must be searched for in a manner that satisfies the specific requirement of the CIFOA. The CIFOA does not adopt that approach for dens and den trees.” FCNSW submitted that rather than seeking to enforce the CIFOA, SEFR “seeks in these proceedings to amend [the CIFOA] so that it mandates an approach to searches for dens and den trees that is not anticipated by the CIFOA.”

161. The Court finds that in opining that “FCNSW’s surveys for glider dens were not scientifically valid or reliable, if indeed they were carried out at all” and that “FCNSW has not complied with CIFOA Condition 57.2(c) which requires a search that will, among other things, identify Glider den trees”. Associate Professor Wardell-Johnson is expressing an opinion in relation to the scientific validity or reliability of the survey methodology for carrying out broad area habitat searches in accordance with condition 57.2(c) of the CIFOA, rather than in relation to any question concerning the lawfulness of FCNSW’s compliance with that condition.

(b) the balance of convenience

162. In Tegra (NSW) Pty Ltd v Gundagai Shire Council (Tegra), ^[16] Preston CJ of LEC identified the following factors as relevant to the balance of convenience:

     16. (2007) 160 LGERA 1; [2007] NSWLEC 806 (Preston CJ).

1. whether irreparable injury will be caused (at [18]);

2. whether damages are an adequate remedy (at [26]);

3. whether undertaking as to damages are offered (at [29] to [31]);

4. where the status quo lies (at [35]);

5. the nature of interlocutory relief sought (at [37] to [38]);

6. the relative strength of each party's case (at [41]);

7. equitable considerations (at [43]);

8. prejudice to third parties (at [51]);

9. the public interest (at [54] to [56]); and

10. the time period before a final hearing (at [58]).

Irreparable harm

163. SEFR relied on the evidence of Associate Professor Wardell-Johnson, to which no objection was taken on the interlocutory application in relation to the risk of “irreparable harm”. Associate Professor Wardell-Johnson’s evidence is extracted above from [50].

164. SEFR submitted that the Southern Greater Glider is listed in NSW as endangered and the Yellow-bellied glider is listed as vulnerable in NSW. SEFR further submitted that “Associate Professor Wardell-Johnson warns that logging operations will kill all or most of the Gliders in a compartment if Glider den trees are not identified retained and protected”.

165. FCNSW accepted “that there is possibly irreparable harm concerning the den trees and respective gliders”. However, it is submitted, this is not “the appropriate class of proceedings, or time, or appropriate respondent, to seek the relief sought”.

166. However, FCNSW also submitted that SEFR “has known, or is at least assumed to have known, that forestry operations have been continuing in some of the Forests from as long ago as March 2023”. The EPA had “issued Stop Work Orders in relation to some of [FCNSW’s] activities and specifically in relation to c57, [broad area habitat searches] and searches for the subject species”. On 31 August 2023 (amended on 6 September 2023), the EPA issued a stop work order for compartments 2447A, 2448A, 2449A, 2450A, 2451A, 2208A and 2209A of the Tallaganda State forest. Further, on 14 November 2023, the EPA made a media release stating that it had issued a stop work order for forestry operations in Flat Rock State forest. Counsel for FCNSW said that the EPA “has not sought to be joined in the proceedings, and has taken no current action in relation to these proceedings”. However, a representative of the EPA was present during the hearing.

167. In relation to irreparable harm, I attach weight to SEFR’s delay in seeking interlocutory relief in circumstances where a number of the forestry operations were already underway and completed “going back to mid 2022” submitted orally by Hemmings for FCNSW. On the other hand, I attach greater weight, for the purpose of the interlocutory proceeding, to the evidence of Associate Professor Wardell-Johnson concerning irreparable harm.

Status quo/alternative processes available

168. In relation to the balance of convenience, FCNSW submitted that, there are a processes available under the Forestry Act for the EPA to consult with FCNSW in relation to amending and enforcing compliance with the CIFOA. Senior counsel for FCNSW submitted that the CIFOA is a “living document” that permits adaptation to changing circumstances by a variety of methods, including the following: that the CIFOA can be amended by the Ministers that made it; that Protocols to the CIFOA can be amended by the EPA; that special conditions can be sought to be and can be imposed; and that that stop work orders can be issued by the EPA under Part 11 Division 2 of the BC Act which require immediate consultation: s 11.7 of the BC Act.

Relief sought

169. In relation to the balance of convenience, the Court raised a concern in relation to the specificity, or lack thereof, of the interlocutory relief sought by SEFR, as set out above at [5]. For example, SEFR seeks orders restraining FCNSW from conducting any forestry operation in the relevant compartments unless (emphasis added):

c. a survey has been conducted that:

…

involves examination of sufficient tree-hollow or other holds, crevices or fissures (hollows) in each identified hollow-bearing tree to determine whether at least one hollow is used by Petaurus australis, Petaurus norfolcensis, or Petauroides Volans for roosting, sleeping, resting, breading, raising of young and communal congregations, shelter, and/or the rearing of young (den);

…

a survey has been conducted that is no less effective than the survey referred to in paragraph 4(c) above in identifying all hollow-bearing tress in the relevant area with at least one den; and

170. Counsel for SEFR accepted that the Court would not be confined to granting interlocutory relief only in the terms the subject of the amended notice of motion.

Usual undertaking as to damages

171. SEFR did not proffer the usual undertaking as to damages in relation to the relief sought in its amended notice of motion.

172. Instead, SEFR invited the Court to exercise the power in r 4.2(3) of the Land and Environment Court Rules 2007 (NSW) and decide not to require the applicant to give an undertaking as to damages in circumstances in which the proceedings have been brought in the public interest.

173. The absence of an undertaking as to damages is not a matter which weights against SEFR here in relation to the balance of convenience.

Conclusions

174. In relation to the question of standing, it is appropriate to exercise the Court’s discretion to decide the question of standing as a preliminary matter, rather than awaiting the determination of the merits. In the exercise of the Court’s discretion here, it would be consistent with the overriding purpose of the CPA to facilitate the just, quick and cheap resolution of the issues in dispute to determine presently whether SEFR has standing to bring the proceeding commenced by way of its summons filed 15 January 2024, rather than that await a final hearing at a date more than 5 months in the future yet to be fixed.

174. Having regard to the purpose of the Forestry Act, the context of ss 69SB and 69ZA, the plain language of those provisions and that of the cognate provisions in ss 13.3, 13.14 and 13.14A of the BC Act, and the principle of legality, the Court is satisfied that, on its proper construction, s 69ZA does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies. A private person or entity with a special interest in the subject matter of the proceedings seeking to enforce a public right or prevent a public wrong may have standing at common law to bring proceedings to enforce compliance with an integrated forestry operations approval.

175. The Court is not satisfied that SEFR has established, even on a prima facie basis, that it has a sufficient special interest to bring these proceedings to enforce the conditions of the CIFOA.

176. If the Court be wrong in relation to the question of SEFR’s standing, SEFR has not established a serious question to be tried or an arguable case. In relation to the balance of convenience, the Court attaches some weight to SEFR's delay in seeking interlocutory relief in circumstances where a number of the forestry operations were already underway and completed “going back to mid 2022”. On the other hand, the Court attaches greater weight, for the purpose of the interlocutory proceeding, to the evidence of Associate Professor Wardell-Johnson concerning irreparable harm.

Orders

178. The Court makes the following orders:

1. The applicant’s amended notice of motion filed 23 January 2024 is dismissed.

**********

Endnotes

Amendments

12 April 2024 - Typographical errors corrected at [7] and [115].

Decision last updated: 12 April 2024