Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales

The appeal concerned a dispute between Upper Hunter Timbers Pty Ltd (the appellant) and the Forestry Commission of New South Wales (the respondent) regarding an agreement made on 14 November 1988. The appellant alleged breaches of this agreement by the respondent, particularly in relation to the issuance of timber licences. The matter was heard by Handley, Stein, and Giles JJA in the Court of Appeal.

The central legal issues before the Court of Appeal were whether the respondent had breached the agreement by failing to comply with Part 5 of the *Environmental Planning and Assessment Act 1979* when issuing timber licence 18677, and whether this non-compliance constituted a breach of the agreement during the period from 14 August 1991 to 31 December 1996. The court also considered whether the agreement was empowered under the *Forestry Act* and whether the appellant needed to have applied for the timber licences itself.

The majority of the Court of Appeal found that the respondent was in breach of the agreement. Their reasoning focused on the respondent's obligation to comply with the *Environmental Planning and Assessment Act 1979* when issuing the timber licence, as required by section 6 of the *Timber Industry (Interim Protection) Act 1992*. The court determined that the respondent's failure to comply with Part 5 of the *Environmental Planning and Assessment Act 1979* in respect of the logging operations permitted by licence 18677 constituted a breach of the agreement.

By majority, the appeal was allowed. The determination by Bryson J that the respondent was not in breach of the agreement was set aside, and it was determined that the respondent had breached the agreement during the specified period. The judgment for the respondent was also set aside, and the proceedings were remitted to the Equity Division for the determination of the appellant's damages. No order was made as to the costs of the appeal.