NSWNSWLEC

North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW

[2023] NSWLEC 124

Land and Environment Court (NSW)|2023-09-07|Before: Pritchard J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-09-07

Before

Pritchard J

Catchwords

(1998) 152 ALR 418 Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54
[2008] FCAFC 3 Attorney General (NSW) v Quin (1990) 170 CLR 1
[1990] HCA 21 Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200
(1989) 19 ALD 70

Source

Original judgment source is linked above.

Catchwords

(1998) 152 ALR 418 Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54[2008] FCAFC 3 Attorney General (NSW) v Quin (1990) 170 CLR 1[1990] HCA 21 Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200(1989) 19 ALD 70[1989] FCA 794 Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493[1980] HCA 53 Australian Heritage Commission v Mount Isa Mines (1997) 179 CLR 297[1997] HCA 10 Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247[1998] HCA 49 Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director (1997) 18 WAR 126(1997) 94 LGERA 380 Buck v Bavone (1976) 135 CLR 110[1976] HCA 24 Caldera Environment Centre Incorporated v Tweed Shire Council [1993] NSWLEC 102 El Khouri v Gemaveld Pty Limited (2023) 256 LGERA 24[2023] NSWCA 78 Haughton v Minister for Planning (2011) 185 LGERA 373[2011] NSWLEC 217 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123[2018] HCA 34 Initial Action Pty Ltd v Woollahra Council (2018) 236 LGERA 256[2018] NSWLEC 118 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86

Judgment (60 paragraphs)

[1]

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Mundine v Forestry Corporation NSW [2022] NSWLEC 140 Muswellbrook Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 North Coast Environment Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492; (1994) 85 LGERA 270 North Queensland Conservation Council Inc v Executive Director, Queensland Parks & Wildlife Service [2000] QSC 172 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46 Ross v Lane (2022) 255 LGERA 136; [2022] NSWCA 235 Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301; (1998) 157 ALR 443 Stanley v Director of Public Prosecutions (NSW) (2023) 407 ALR 222; [2023] HCA 3 Timbarra Protection Coalition v Ross Mining (1999) 46 NSWLR 55; [1999] NSWCA 8 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 VicForests v Kinglake Friends of the Forest Inc (2021) 395 ALR 367; (2021) 248 LGERA 28; [2021] VSCA 195 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Texts Cited: Coastal Integrated Forestry Operations Approval 2018 (published by NSW Environment Protection Authority, November 2018) Mark Aronson et al, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Thomson Reuters (Professional) Australia Limited) Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2000, The Federation Press) Category: Principal judgment Parties: North East Forest Alliance Incorporated (INC 1601738) (Applicant) Forestry Corporation of NSW (Respondent) Representation: Counsel: M R Hall SC with N Hammond and P Hart (Applicant) I Hemmings SC with J McKelvey (Respondent) Solicitors: Environmental Defenders Office (Applicant) Norton Rose Fulbright Australia (Respondent) File Number(s): 2023/239296 Publication restriction: Nil

[2]

JUDGMENT Introduction NEFA's notice of motion seeking interlocutory relief, and FCNSW's undertakings FCNSW's notice of motion seeking summary dismissal The hearing on 14 August and 7 September 2023 Outcome of the Class 4 proceedings Factual background Relevant provisions of the Forestry Act The CIFOA The parties' evidence Documentary evidence Lay evidence Expert evidence Solicitor evidence The summary dismissal motion: the question of NEFA's standing to bring the proceedings NEFA's submissions in relation to its standing to bring the proceedings NEFA's submissions in relation to statutory open standing provisions FCNSW's submissions in relation to open standing in environmental laws generally NEFA's submissions in relation to the common law test for standing in Australian Conservation Foundation v The Commonwealth Connections between organisation and the particular local environment Long history of involvement and influence Connection to the subject matter - environmentally sustainable forest management Recognition by State and federal government bodies Local community engagement The importance of the environmental issue in question FCNSW's submissions in relation to the common law test for standing in Australian Conservation Foundation v The Commonwealth, and generally in relation to NEFA's standing Conclusions in relation to NEFA's standing to bring the proceedings The Court's jurisdiction in relation to NEFA's grounds of challenge NEFA's submissions in relation to the Court's jurisdiction FCNSW's submissions in relation to the Court's jurisdiction Conclusions in relation to the Court's jurisdiction/justiciability Admissibility of expert evidence in relation to Grounds 1 and 3 NEFA's submissions in relation to the admissibility of expert evidence, and whether there arises a jurisdictional fact FCNSW's submissions in relation to expert evidence in judicial review proceedings Conclusions in relation to the admissibility of expert evidence Ground 1: Condition 14 of the CIFOA - the principles of ESFM as a mandatory precondition or consideration, an operative condition or an objective NEFA's submissions in relation to Ground 1 FCNSW's submissions in relation to Ground 1 Conclusions in relation to Ground 1 Ground 2 - Mandatory consideration: Capacity to comply with the conditions of the CIFOA NEFA's submissions in relation to Ground 2 FCNSW's submissions in relation to Ground 2 Conclusions in relation to Ground 2 Ground 3: Failure to comply with condition 23.4 and Protocol 5 in relation to obtaining SSOCs NEFA's submissions in relation to Ground 3 NEFA's first proposition: the SSOC preconditions are necessary preconditions to the SSOC process NEFA's second proposition: the SSOC preconditions were met in relation to the Braemar and Myrtle State Forests NEFA's third proposition: FCNSW must seek SSOCs where either or both SSOC preconditions are met and it seeks to conduct forestry operations NEFA's fourth proposition: the SSOC process relates to the approval of HHPs as they authorise forestry operations NEFA's fifth proposition: FCNSW's failure to seek SSOCs prior to approving the HHPs results in invalidity FCNSW's submissions in relation to Ground 3 Conclusions in relation to Ground 3 Materiality NEFA's submissions in relation to materiality FCNSW's submissions in relation to materiality Conclusions in relation to materiality Conclusions Costs Orders

[3]

Introduction

These Class 4 judicial review proceedings concern the decisions of the respondent, Forestry Corporation NSW (FCNSW), by its planning supervisor Mr Matthew Howat, to approve the following "operational plans" within the meaning of condition 53 of the Coastal Integrated Forestry Operations Approval 2018 (CIFOA) granted under Part 5B of the Forestry Act 2012 (NSW) (Forestry Act) for the purpose of carrying out forestry operations: 1. Braemar 006 and 007 post-fire HHP 2023 (Harvest and Haul Plan 200002336) first approved on 29 March 2023 and subsequently varied on 30 May 2023 (the Braemar HHP); and 2. Myrtle 010-016 post-fire HHP 2023 (Harvest and Haul Plan 200001995) approved on 16 May 2023 (the Myrtle HHP).
An operational plan is a document which must be prepared by FCNSW under condition 53 of the CIFOA before forestry operations authorised under the CIFOA can commence to be carried out. The CIFOA came into effect upon execution by the then Minister for the Environment and the then Minister for Lands and Forestry on 16 November 2018. Mr Howat was the relevant FCNSW planning supervisor who "approved and dated" the Braemar HHP and the Myrtle HHP in accordance with condition 53.4(c) of the CIFOA.
There are some 40 protocols to the CIFOA compiled by the NSW Environmental Protection Authority (EPA) (the protocols) which support various requirements in the CIFOA and are to be read in conjunction with the CIFOA and with any relevant statutory provisions: Protocol 1 "Scope and Interpretation" condition 1.1(2). Condition 5.1 of the CIFOA provides that: 5. Protocols 5.1 This approval applies and adopts the protocols, as amended, made public, and in force from time to time. 5.2 A register of protocols is set out in Part 2 of Schedule 1. 5.3 FCNSW must apply, and comply with, a protocol where required by the approval or by another protocol.
By summons filed Thursday, 27 July 2023, the applicant, North East Forest Alliance Incorporated (INC1601738) (NEFA), seeks declarations that each of the Braemar HHP and the Myrtle HHP is invalid and of no effect, orders quashing the purported decisions to approve the plans, and orders restraining FCNSW from proceeding in reliance on them.
In summary, NEFA's grounds of challenge are as follows: 1. Each of the Braemar HHP and the Myrtle HHP fails to address matters that are mandatory pre-conditions to the exercise of the power to approve an operational plan in accordance with condition 53 of the CIFOA: 1. specifically condition 14.1 of the CIFOA which requires that forestry operations be carried out in accordance with the principles of ecologically sustainable forestry management (ESFM); and 2. operational requirements in sufficient detail to enable the person proposing to undertake forestry operations to comply with the conditions of the CIFOA, specifically condition 14.1 (Ground 1). 1. Further and in the alternative to Ground 1, in purporting to approve the Braemar HHP and the Myrtle HHP, FCNSW (Mr Howat) failed to consider a mandatory relevant consideration, namely the ability of a person to carry out forestry operations in accordance with the principles of ESFM (Ground 2). 2. FCNSW (Mr Howat) had no power to approve the Braemar HHP and the Myrtle HHP in circumstances where following bushfires that took place in NSW in 2019/2020 (the 2019/2020 bushfires), the circumstances described in condition 23.4 of the CIFOA were engaged, requiring FCNSW to comply with the requirements of condition 23.4 and Protocol 5 to the CIFOA in relation to obtaining site-specific operating conditions (SSOCs), but failed to do so (Ground 3).

[4]

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

By notice of motion filed on Thursday, 27 July 2023, NEFA sought the following interlocutory relief (the injunction motion): 1 The time for service of the Summons herein is abridged to 4 pm on [28 July 2023]. 2 Service of the Summons, the Notice of Motion dated 27 July 2023, the affidavits of Kimberley Hutchinson and of Dailan Pugh both made on 27 July 2023 and the exhibits thereto may be effected by emailed electronic copies to the email addresses of Alix Cameron, General Counsel of FCNSW... 3 FCNSW be restrained, until the claim is determined or until further order, from conducting or authorising the conduct of any forestry operation: a. In compartments 06 and/or 07 of the Braemar state forest in reliance on the Harvest and Haul Plan number 200002336 dated 30 May 2023 or any harvest and haul plan to like effect; and b. In compartments 10 to 16 inclusive of the Myrtle state forest in reliance on the Harvest and Haul Plan number 200001995 dated 16 May 2023 or any harvest and haul plan to like effect. 4 FCNSW pay NEFA's costs of the motion dated 27 July 2023. 5 Order 3 be entered immediately and a sealed copy of the order as entered be released to NEFA for service.
On Friday, 28 July 2023, Robson J as duty judge made Orders 1 and 2. The need for the relief sought in Order 3 to be determined on that occasion was removed as FCNSW gave a limited undertaking to NEFA to suspend harvesting operations under the Braemar HHP and the Myrtle HHP until close of business on 2 August 2023, being the next listing date. On Wednesday, 2 August 2023, FCNSW provided a further undertaking to suspend harvesting operations under the Braemar HHP and the Myrtle HHP until Monday, 14 August 2023, being the date of the commencement of the hearing before me.
On Monday, 14 August 2023, FCNSW extended its undertaking to NEFA until 15 August 2023. On Tuesday, 15 August 2023, FCNSW informed the Court that it would extend its undertaking until the delivery of judgment in this proceeding. Therefore, it does not arise for me to determine the injunction motion.

[5]

FCNSW's notice of motion seeking summary dismissal

By notice of motion filed on Tuesday, 1 August 2023, FCNSW sought the following orders (the summary dismissal motion): 1 Pursuant to rule 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), the whole of the proceedings are summarily dismissed. 2 In the alternative, pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the whole of NEFA's Summons be struck out. 3 NEFA pay FCNSW's costs of the motion. 4 Such further or other orders as the Court deems fit.

[6]

The hearing on 14 August and 7 September 2023

At the hearing on Monday, 14 August 2023, FCNSW agreed that the Court should deal with its summary dismissal motion together with the determination of the substantive proceedings.
At the hearing on 14 and 15 August and 7 September, and in written submissions, there was ventilated by the parties the issue raised by FCNSW's summary dismissal motion of NEFA's standing to bring the proceedings and the issue of the Court's jurisdiction to hear and determine the proceedings.

[7]

Outcome of the Class 4 proceedings

There were filed lengthy written submissions by both parties. These voluminous submissions have been summarised in these reasons for judgment.
In summary, I have determined as follows: 1. In relation to the question of NEFA's standing, NEFA has standing at common law to bring the proceedings. 2. In relation to the question of the Court's jurisdiction, the decision of a FCNSW planning supervisor to approve an operational plan made pursuant to the embedded authority in condition 53 of the CIFOA enlivens the power of the Court to entertain an application for judicial review of the decision. 3. In relation to the admissibility of expert evidence, the evidence of neither expert is relevant to the issues raised in the proceedings and is inadmissible. Expert evidence is sought to be relied on by NEFA in relation to each of Grounds 1 and 3, and NEFA contends that each of those grounds raises a jurisdictional fact. I have concluded that neither of those grounds raises a jurisdictional fact and that, in any event the expert evidence would not assist in the determination of any such jurisdictional fact. 4. In relation to Ground 1, condition 14.1 is an objective of the CIFOA and not an operative condition. Consideration of the achievement of the principles of ESFM in the making of an operational plan is not a jurisdictional fact to be determined by the Court with the function of reviewing a decision of FCNSW to approve an operational plan. 5. In relation to Ground 2, the effect of condition 53 of the CIFOA is not to make the capacity of a person carrying out a proposed forestry operation to comply with the CIFOA in the manner contended by NEFA a mandatory consideration. In particular, I do not consider that condition 14 which sets out the general objectives of the approval is a mandatory consideration in the determination by the FCNSW planning supervisor to approve an operational plan. 6. In relation to Ground 3, condition 23.4 of the CIFOA required FCNSW to comply with the requirements of condition 23.4 and Protocol 5 to the CIFOA in relation to obtaining site-specific operating conditions. NEFA has not established that the process of obtaining site-specific operating conditions applies to the approval of operational plans which authorise forestry operations. Properly construed, each of conditions 53 and 23 of the CIFOA involves a distinct exercise of power. Nor are circumstances referred to in the chapeau to condition 23.4 jurisdictional facts.

[8]

Factual background

The following factual background is derived from an agreed chronology and supplemented by the material in the evidence book filed in the proceedings.
On 5 June 1989, NEFA was formed. NEFA's key aims were "to protect old growth forest, wilderness, rainforests and threatened species in the [N]orth [E]ast of NSW". NEFA did not become an incorporated association until 26 November 2016. The objectives of the incorporated association were agreed by its members to be as follows: • To work for the protection of the public native forests of Northeast NSW. • To campaign to protect: - old growth, old hollow-bearing trees, - rainforests, rare forest ecosystem types, - wilderness, - threatened species and their habitat, - the capacity of native forests of Northeast NSW to supply clean and abundant water. • To promote the urgent necessity of restoring the carbon storage capacity of native forests of Northeast NSW to mitigate climate change. • To raise public awareness of the values of Northeast NSW native forests and to foster research into same. • To support other groups working to conserve native forests in other areas. • To audit and monitor forest operations and • To be committed to non-violent action to persons and property in the pursuit of our goals.
On 16 November 2018, the Minister for the Environment and the Minister for Lands and Forestry granted the CIFOA pursuant to Part 5B of the Forestry Act.
On 20 August 2019, and prior to the 2019/2020 bushfires, Mr Matthew Kinny of FCNSW approved Braemar 006-007 HHP, plan ID HP_BRAEMAR_BRA007_2019 (2019 Braemar HHP). It was common ground that the forestry operations the subject of these proceedings did not commence to be carried out under the 2019 Braemar HHP.
Between October and December 2019, the 2019/2020 bushfires commenced. The Braemar and Myrtle State Forests were severely burnt as a result of the 2019/2020 bushfires. According to a report prepared by the NSW Natural Resources Commission (NRC), titled "NSW Forest Monitoring and Improvement Program: Insights for NSW forest outcomes and management", dated November 2022, (November 2022 NRC report) the 2019/2020 bushfires "were unprecedented in their extent and severity, resulting in the largest total area burnt in a single recorded fire season in eastern Australia". The 2019/2020 bushfires "also had extensive impacts on the habitat of hundreds of species".

[9]

Relevant provisions of the Forestry Act

The current structure of regulation of forestry operations in New South Wales was introduced by amendments to the Forestry Act effected by way of the Forestry Legislation Amendment Act 2018 (NSW). In Part 5B of the Forestry Act as amended, s 69M permits the granting of "integrated forestry operations approvals" (IFOAs). IFOAs may only be granted jointly by the Minister for the Environment and the Minister for Lands and Forestry (s 69N(1)).
FCNSW is constituted a corporation by s 5 of the Forestry Act. Section 10(1) provides that the principal objectives of FCNSW are as follows: (a) to be a successful business and, to this end - (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Corporation, (b) to have regard to the interests of the community in which it operates, (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991, (d) to contribute towards regional development and decentralisation, (e) to be an efficient and environmentally sustainable supplier of timber from Crown-timber land and land owned by it or otherwise under its control or management.
In accordance with s 10(2) each of the principal objectives of FCNSW is of equal importance. Section 11(1) of the Forestry Act specifies the principal functions of FCNSW, including in s 11(1)(a) to "carry out or authorise the carrying out of forestry operations in accordance with good forestry practice on Crown-timber land or land owned by the Corporation".
The expression "forestry operations" is defined in s 3 of the Forestry Act as: (a) logging operations, namely, the cutting and removal of timber from land for the purpose of timber production, or (b) the harvesting of forest products, or (c) ongoing forest management operations, namely, activities relating to the management of land for timber production such as thinning, burning and other silvicultural activities and bush fire hazard reduction, or (d) ancillary activities to enable or assist in the above operations such as the provision of roads, snig tracks, waterway crossings and temporary timber storage facilities.
In Part 5B, "integrated forestry operations approvals" s 69M provides in relation to the granting of IFOAs for the carrying out of forestry operations to which Part 5B applies: 69M Granting of approvals (1) Approval for the carrying out of forestry operations to which this Part applies may be granted under this Part. Such an approval is called an integrated forestry operations approval. (2) This Part does not prevent or affect the carrying out of forestry operations authorised by or under any other provision of this Act or any other Act or law. However, the carrying out of forestry operations to which an integrated forestry operations approval applies is subject to the terms of the approval.

[10]

The CIFOA

The text in relation to the granting of the CIFOA of approval to carry out forestry operations provides: We, the undersigned Ministers, pursuant to Part 5B of the Forestry Act 2012: 1. revoke the Integrated Forestry Operations Approval for the Eden Region, the Integrated Forestry Operations for the Southern Region, the Integrated Forestry Operations Approval for the Upper North East Region and the Integrated Forestry Operations Approval for the Lower North East Region; and 2. grant approval for the carrying out of forestry operations in accordance with the conditions of this approval (the Integrated Forestry Operations Approval for the Coastal Region), upon the later of the two dates on which this instrument is signed by the Ministers, or if the instrument is signed by both Ministers on the same date, on that date of signing.
In Chapter 1 of the CIFOA, in Division 1 condition 3.1 provides in relation to the interpretation of the CIFOA as follows: 3. General interpretation rules 3.1 The approval, and each protocol, is to be interpreted in accordance with the General Interpretation Rules set out in Part 1 of Schedule 1.
In Part 1 of Schedule 1, condition 124.1 provides that "in the approval and in each protocol, unless expressed to the contrary, a reference to: (e) the approval is to the approval as amended from time to time" and "(f) any protocol is to the protocol as amended from time to time".
Condition 5.1 also provides that the CIFOA "applies and adopts the protocols, as amended, made public, and in force from time to time". Condition 5.3 provides: 5.3 FCNSW must apply, and comply with, a protocol where required by the approval or by another protocol.
In relation to construing the CIFOA, condition 7 provides: 7. Most stringent condition applies 7.1 FCNSW must comply with the conditions of the approval and the protocol, as applicable. 7.2 If in a specific circumstance or location, more than one requirement of the approval or a protocol applies, the most stringent of the requirements must be complied with. 7.3 If it is unclear which requirement is the most stringent, FCNSW must seek advice in writing from the EPA on which requirement must be complied with, and comply with that requirement.
The terms of the CIFOA are set out in Division 2 of Chapter 1.
In relation to the duration of the CIFOA, condition 11.2 provides that "[t]he approval has effect for a period of 20 years from the commencement of the approval, unless otherwise revoked by the Ministers."

[11]

Documentary evidence

NEFA tendered documents including correspondence in relation to NEFA's grounds of review, historical correspondence and media excerpts in relation to NEFA's standing, and the November 2022 NRC report referred to at [20] above.
FCNSW tendered two statements of reasons in relation to the Braemar HHP and the Myrtle HHP, dated 8 August 2023 and 9 August 2023 respectively (the statements of reasons). The statements of reasons set out the background to each of the Braemar and Myrtle HHPs, the steps taken by Mr Howat in reviewing draft copies of the HHPs, the documents available to Mr Howat when reviewing the HHPs, and the "material matters taken into account" by Mr Howat and his reasons for approving each of the HHPs. The statements of reasons provide as follows: Having had regard to the [Myrtle and Braemar HHPs], the supporting documentation...and the matters discussed above, the Planning Supervisor approved the HHP[s]. In approving the [HHPs]...Mr Howat was satisfied that: a. The [HHPs] met the requirements of an operational plan under condition 53 of the CIFOA; and b. The [HHPs] adequately recorded operational details to allow a person carrying out forestry operations to comply with the CIFOA.
FCNSW noted the following in relation to the statements of reasons: This provision of this Statement of Reasons is without prejudice to the argument of [FCNSW] that the steps referred to in [NEFA's] summons do not constitute 'decisions' for the purposes of the Uniform Civil Procedure Rules 2005 (NSW) or for the purpose of judicial review of such 'decisions'. It is likewise not conceded that the actions described in this Statement of Reasons constitute 'decisions' of any kind or an exercise of a function that is conferred or imposed by a planning or environmental law.
FCNSW also tendered a "final report (updated)" of the NRC titled "Research Program Koala response to harvesting in NSW north coast state forests" dated December 2022 (the December 2022 NRC report).

[12]

Lay evidence

NEFA read three affidavits of Mr Dailan Pugh, president of NEFA, affirmed 27 July 2023, 1 August 2023 and 7 August 2023. In light of FCNSW's objections to Mr Pugh's affidavits, the parties agreed that the affidavits would be read on the limited basis that they are not expert evidence, but only as evidence of NEFA making submissions and carrying out "audits", and not of the facts asserted in the submissions.
Mr Pugh said that NEFA had 35 formal members, some 80 volunteers who volunteer with NEFA on a regular basis, and 1,443 subscribers to NEFA's general email subscription list. Mr Pugh described NEFA's activities which include conducting "audits", "scat surveys" and "vegetation plot surveys" in relation to the presence of listed threatened species in a number of State Forests and private properties in North East NSW and in relation to compliance with logging conditions under regulatory schemes. Mr Pugh expressed concern on behalf of NEFA, based on its audits and surveys in relation to the Braemar and Myrtle State Forests, that forestry operations "will compound the impacts of the 2019-20 bushfires on the remaining koala population and the slaty red gum population in the relevant State Forests".
FCNSW read two affidavits of Mr Deane Kearney, senior manager environment and sustainability employed by FCNSW, affirmed 1 August 2023 and 10 August 2023. Mr Kearney deposed that FCNSW had undertaken "Broad Area Habitat Searches" (BAHS) in some "patches" within the Myrtle and Braemar State Forests in which FCNSW marked 259 koala feed trees for retention in the Myrtle State Forest, and 170 koala feed trees for retention in the Braemar State Forest. Mr Kearney said that under the Myrtle and Braemar HHPs, BAHS would continue across the remainder of the areas to be harvested as it had in the patches covered as at August 2023. The BAHS were also expected to identify "wildlife habitat clumps" (WHC) as well as "tree retention clumps" (TRC) in each of the Myrtle and Braemar State Forests which were "likely to contain significant numbers of koala browse trees".

[13]

Expert evidence

NEFA read two affidavits of Dr Stephen Phillips affirmed 31 July 2023 and 7 August 2023. Annexed to Dr Phillips' 7 August 2023 affidavit was an expert report dated 7 August 2023 (Phillips report). Dr Phillips holds a Bachelor of Science (Honours) and a Doctor of Philosophy (PhD) in science. His PhD research focused on the identification and modelling of koala habitat. He has written book chapters and scientific publications on various aspects of koala habitat use and conservation. He is currently the principal research associate at Biolink Ecological Consultants Pty Ltd (Biolink).
In his 31 July 2023 affidavit, Dr Phillips provided his opinion in relation to the ecology of koalas inhabiting the Braemar and Myrtle State Forests and the impact of the 2019/2020 bushfires. On 20 June 2023, Dr Phillips undertook survey work in the Myrtle and Braemar State Forests. The surveys recorded "evidence of active habitat utilisation by koalas at 4 of 5 field sites in the Myrtle State Forest, and at 4 of 6 field sites in the Braemar State Forest…confirm[ing] that there are koalas present within the areas proposed for logging". Dr Phillips expressed the opinion that the Braemar and Myrtle HHPs failed to: 1. mandate protections that will maintain forest values relevant to koalas; 2. apply best available knowledge and adaptive management processes to deliver best-practice forest management; 3. apply the precautionary principle to prevent environmental harm; and 4. prevent a poor environmental outcome for local koala populations.
The reasons given by Dr Phillips in forming this opinion in the 31 July 2023 affidavit, and maintained in the Phillips report, included that: 1. it was "likely that FCNSW [had] insufficient data in relation to both the presence of koalas following the bushfires and how the bushfires [had] impacted local koala populations and habitat", and accordingly, additional surveys were required to "understand the extent and location of habitat being actively utilised by any resident population of koalas" in the Braemar and Myrtle State Forests; 2. the "CIFOA prescriptions, aimed at protecting listed threatened species, such as the koala, do not take into account the impacts of the 2019-20 bushfires"; and 3. there was a "serious risk that no suitable habitat [would] be retained for surviving koala populations in these areas under the CIFOA prescriptions" as the removal of "koala browse trees", defined in Protocol 39 as live healthy trees greater than 30 centimetre "diameter at breast height" (DBH), would "significantly compound the impacts of the 2019-20 bushfires on surviving individuals and local populations of koalas in these areas". Dr Phillips said that his research suggested that koala browse trees such as Grey Gums and Red Gums which are present in the compartments proposed for logging only become palatable to koalas when they exceed a minimum threshold of approximately 30 centimetre DBH.

[14]

Solicitor evidence

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

[15]

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

A critical question arises as to NEFA's standing to bring these proceedings. By way of its summary dismissal motion filed 1 August 2023, FCNSW sought to have the proceedings summarily dismissed, or the summons struck out, contending that NEFA lacks standing to bring the proceedings. As Craig J observed in Haughton v Minister for Planning [1] (Haughton) at [64], standing and jurisdiction are distinct concepts.
Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides in relation to the dismissal of frivolous and vexatious proceedings: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Rule 14.28 of the UCPR provides in relation to the circumstances in which the Court may strike out pleadings: 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Section 69ZA of the Forestry Act in relation to the application of statutory provisions relating to proceedings by third parties, and standing to bring proceedings in relation to, inter alia, a breach of Part 5B, is extracted above at [50]. Section 69ZA(3) makes clear that the provision does not apply to proceedings brought by a Minister, the EPA or a member of the staff of the Authority or a government agency or any government official engaged in the execution or administration of the provisions of an Act referred to in s 69ZA(1)(b).

[16]

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

It was not in dispute that NEFA bears the onus of establishing that it has standing to bring these proceedings. NEFA appears to have put its position in relation to standing as follows: 1. Section 69ZA(1)-(2) of the Forestry Act provides that "proceedings may not be brought under" ss 219, 252 or 253 of the POEO Act or "a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach…of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach". That is, the "open standing" provisions in the POEO Act do not apply to proceedings commenced pursuant to the Forestry Act. However, s 69ZA does not go further to "impose any limitation on standing". Therefore, the question of standing is to be determined by reference to the common law. 2. There is no requirement for standing to be demonstrated in relation to proceedings commenced pursuant to any law enacted for the protection of the environment. That is to say, standing at common law exists in relation to all matters concerning the protection of the environment, whether or not brought pursuant to the POEO Act or any other Act with an open standing provision. NEFA appears to accept that this position is presently unsupported by binding authority, and is to be determined "on any subsequent appeal". 3. In any event, NEFA contends, for present purposes, that it does satisfy the common law test for standing as articulated by the High Court in Australian Conservation Foundation v The Commonwealth (ACF v Commonwealth). [2] It submitted that NEFA has a "sufficient interest" to bring these proceedings.

[17]

NEFA's submissions in relation to statutory open standing provisions

In relation to open standing, NEFA submitted that the "strong trend" in modern environmental statutes has been towards enacting "open standing" provisions. Examples are ss 252 and 253 of the POEO Act, s 193 of the National Parks & Wildlife Act 1974 (NSW) (NPW Act) and s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
NEFA accepted that s 69ZA of the Forestry Act has the effect of displacing such open standing provisions. However, NEFA submitted that the effect of s 69ZA is not to impose any restraint on standing, rather only to prevent NEFA in the present case from taking advantage of statutory liberalisations of the standing test, with the consequence that the question of standing reverts to the common law position.
NEFA submitted that following the introduction of statutory open standing provisions, particularly in ss 252 and 253 of the POEO Act, the development of jurisprudence in respect of the common law test for standing in the enforcement of environmental legislation has slowed. That was said to be "because the issue generally does not arise", and that "[t]he cases indicating the progress of the legal test for standing tend to pre-date the enactment of the POEO Act". Prior to the enactment of the open standing provisions in the POEO Act, a "clear trend of general liberalisation of the standing test was emerging from the case law".
NEFA submitted that there is a "clear statutory trend towards open standing provisions in environmental laws, dispensing with standing as a necessary requirement before a challenge can be brought", which has created a "gravitational pull" on the common law in respect of standing, citing Beaumont J in South Pacific Air Motive Pty Ltd v Magnus. [3] In that case, Beaumont J was considering whether Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) governed claims by passengers for psychological injuries. His Honour referred to the decision of Olney, Kiefel and Finn JJ in Adelaide Steamship Co Ltd v Spalvins, [4] where the Court said "such is the significance of the Act's provisions in this that their advent has created an entirely new setting to which the common law must now adapt itself". Here, Mr Hall SC for NEFA submitted that "there has been a gravitational effect of the parliaments via statements of a move towards open-standing and the enforcement of environmental protection legislation."

[18]

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

In relation to NEFA's contention concerning common law "open standing" in matters concerning the environment, FCNSW submitted that NEFA seeks to "go beyond established common law principles of standing to break new ground". FCNSW submitted that NEFA's concept of common law open standing for enforcement of environmental laws does not accord with binding authority, having regard to the law as stated by Gibbs J in ACF v Commonwealth at 526. In particular, FCNSW submitted as follows: 1. It should not be assumed that because environmental laws in NSW have tended to include open standing provisions, that would have had an influence on the common law position. Rather, the express steps taken by Parliament to include open standing provisions in statutes could be said to demonstrate that it does not reflect the common law, and that the legislature wishes to reserve to itself the ability to decide which matters will be the subject of open standing. 2. It is no answer to say, as NEFA does, that the existence of open standing provisions has led to a lack of development in this area of the common law. In that regard, NEFA's submission is predicated on an assumption that the development of a common law position in relation to open standing for environmental matters was otherwise certain. Such an assumption is without foundation. 3. If anything, the decision to "turn off" open standing provisions in s 69ZA of the Forestry Act suggests a legislative intention to limit the classes of people who may bring proceedings, and the suggestion by NEFA that the common law would nonetheless permit open standing in those circumstances is simply wrong.

[19]

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

It was common ground that NEFA's approach to standing in relation to environmental laws is generally unsupported by authority. Accordingly, NEFA accepted that the question of standing is to be determined by reference to the common law.
In ACF v Commonwealth, Gibbs J said at 530 to 531: I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest for present purposes does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, or upholding a principle or winning a contest, if its actions succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."
NEFA submitted that the above statement, while authoritative, is not a statutory formula. For example, Mason J in ACF v Commonwealth referred to his earlier decision in Robinson v Western Australian Museum [5] as follows (at 547 to 548) (emphasis added): The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another. In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration.
In relation to ACF v Commonwealth, NEFA submitted that: 1. Gibbs J expressly accepted that a person might have a "special interest in the preservation of a particular environment"; [6] 2. Mason J stated that the "mere belief" proposition was confined to cases "of the kind now under consideration"; [7] 3. the test for standing was stated by Gibbs J to be a "broad test" not confined to pecuniary interests, and that the interest need not be unique to the applicant. [8]

[20]

Connections between organisation and the particular local environment

In relation to the connection between the organisation and the particular local environment, NEFA referred to Australian Conservation Foundation v Minister for Resources (ACF v Minister) [11] where Davies J said (at 207): While the Australian Conservation Foundation does not have standing to challenge any decision that might affect the environment, the evidence establishes that the Australian Conservation Foundation has a special interest in relation to the South-East forests and certainly those areas of the South-East forests that are National Estate. The Australian Conservation Foundation is not just a busy body in this area. It was established and functions with government financial support to concern itself with such an issue. It is pre-eminently the body concerned with that issue. If the Australian Conservation Foundation does not have a special interest in the South-East forests, there is no reason for its existence.
Similarly here, NEFA submitted, it has dedicated its existence to furthering specific protection of the native forests of North East NSW which include the Braemar and Myrtle State Forests, referring to the matters deposed to by Mr Pugh in his 27 July and 1 August 2023 affidavits: 1. NEFA is an alliance of groups and individuals from throughout North East NSW, with its activities generally covering the geographical area from the Hunter River north to the Queensland border, and inland to the eastern edge of the New England Tablelands. 2. Since 2009, NEFA has conducted audits in 19 North East NSW State Forests, including in the Braemar and Myrtle State Forests in order to document and report threatened species, and to assess compliance of logging operations against State regulations. 3. In 2020, NEFA commenced proceedings in the Federal Court, seeking to invalidate the North East NSW Regional Forest Agreement (RFA). The basis of the claim was that when the Commonwealth extended the RFA in 2018, it failed to assess logging impacts on threatened species, old growth forest and the effects of climate change, in the context of the principles of ESFM. If successful in those proceedings, additional regulatory protection for North East forests "may eventuate". 4. With particular reference to the Braemar State Forest, NEFA has a detailed knowledge of and is actively engaged with ESFM issues in relation to logging and the protection of threatened species. It has conducted numerous koala assessments within the relevant forest compartments the subject of the impugned approvals, both prior to and after the 2019/2020 bushfires. It developed a detailed proposal for what it called the Sandy Creek Koala Park which would include the Braemar State Forest "due to the high instances of koalas identified in the area". It communicated its concerns in relation to the proposed logging of Braemar koala habitat in correspondence to the former NSW Premier, and to the NSW Environment Minister on three other occasions. 5. With particular reference to the Myrtle State Forest, NEFA also has a detailed knowledge of and is actively engaged with ESFM issues in relation to logging and the protection of threatened species. Again, it has undertaken multiple koala assessments within the relevant compartments following the 2019/2020 bushfires in order to assess the presence of koalas in the post-bushfire landscape. In 2020, it wrote to the EPA concerning the issuing of SSOCs in relation to the Myrtle State Forest for the same compartments, detailing its concerns in relation to the proposed logging. 6. NEFA funded targeted koala surveys in the post 2019/2020 bushfire context to develop knowledge and expertise in relation to the presence of the listed threatened species in the North East NSW region, including in the Myrtle and Braemar State Forests. The courts have identified such expenditure as a relevant standing consideration. [12]

[21]

Long history of involvement and influence

In relation to the consideration of an organisation's involvement in the issue the subject of proceedings, NEFA referred to the decision of Sackville J in North Coast Environment Council Inc v Minister for Resources (No 2) (North Coast), [13] where his Honour noted the organisation's history of making submissions in relation to exhibited environmental impact statements for forestry and wood chipping activities. Although Sackville J said that that alone would have been insufficient to show a special interest, it was one of a number of factors. His Honour's fifth reason for upholding standing in that case was: [14] Fifthly, independently of North Coast's long involvement with successive licences granted to Sawmillers, it has made submissions on forestry management issues to the Resource Assessment Commission and has funded a study on old growth forests, focusing upon the Wild Cattle Creek State Forest.
NEFA relied on the following evidence as establishing its "long standing involvement in seeking to protect [N]orth [E]ast NSW forests": 1. One of NEFA's first significant actions was in 1990, prior to its incorporation when a member of NEFA, Mr John Corkhill, successfully brought injunctive proceedings against the then Forestry Commission of NSW in relation to proposed forestry operations in the then North Washpool State Forest near Grafton. There was evidence that the "Commission entered into an agreement with NEFA to rehabilitate rainforest areas in the North Washpool [State Forest that] it had logged". 2. In the early 1990s, NEFA actively participated in "NSW forestry EIS processes", including making "detailed written submissions" in relation to environmental impact statements that had been prepared and the "development of forestry-related protected fauna legislation". 3. In the 1990s, NEFA had "significant" participatory roles in NSW implementation of national forest policy which led to the North East NSW Regional Forest Agreement between the NSW and the Commonwealth governments in 2000. 4. NEFA has conducted numerous "forest audits" (referred to below at [119(2)]). 5. Since 2011, NEFA has widely participated in public consultations and provided submissions relating to native forest management and threatened species, and has prepared reports about "[N]orth [E]ast NSW's forests and their protection".

[22]

Connection to the subject matter - environmentally sustainable forest management

In relation to its "concerns with the subject matter of the decisions and the closeness of its relationship to that subject matter", citing Sackville J in North Coast, NEFA referred to evidence of its activities, including research, advice, lobbying and consultation in relation to the relevant forests. In particular, NEFA referred to evidence which it submitted establishes that: 1. Its objectives are closely connected to the subject matter of the proceedings, "evidently embed the pursuit of ESFM", and particularly include the "protection of public native forests in [N]orth [E]ast NSW"; "to campaign to protect threatened species and their habitat"; and "to audit and monitor forest operations (as against the regulatory scheme)". 2. Its "activities underscore that close connectedness of NEFA with the relevant subject matter." 3. Ms Susie Russell, member of NEFA, represented NEFA as a director of the Forest Stewardship Council Australia (FSC Australia) from 2010 to 2021, serving three terms on the board (members not being permitted to serve longer than three terms). Ms Russell was also elected as Chair of FSC Australia in 2020 for a one year term. NEFA relied on an extract from FSC Australia's website which said that FSC Australia "helps forests remain thriving environments for generations to come, by helping you make ethical and responsible choices at your local supermarket, bookstore, furniture retailer, and beyond" and submitted that the FSC certification provides assurance that "paper or timber came from responsible sources". FSC members include environmental groups as well as social organisations, business, and forest owners and managers. FSC Australia is a national office of FSC International and "ensures that the voice of Australian stakeholders are heard internationally through its membership".

[23]

Recognition by State and federal government bodies

In relation to recognition, including by the grant of financial support, NEFA referred to North Coast where Sackville J (at 513) relied on recognition by the NSW government of the North Coast Environmental Council as one of five reasons for finding standing in that case: Thirdly, North Coast has been recognised by the Government of New South Wales as a body that should represent environmental concerns on advisory committees. The most important form of recognition for present purposes has been membership of North Coast's nominees on the Forestry Policy Advisory Committee, the role of which is to advise the State Minister on forestry matters, including the management of State forests. This and other forms of participation in official decision-making processes show that the State government has accepted North Coast as a representative of environmental interests.
Here, NEFA submitted, there is no rule that standing depends upon government funding or recognition, citing Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director (Bridgetown) [15] and North Queensland Conservation Council Inc v Executive Director, Queensland Parks & Wildlife Service. [16] In this matter, NEFA submitted, it has been recognised by State and Commonwealth governments as a significant and responsible environmental organisation; [17] has been represented on government committees and working groups in relation to State and Commonwealth regulation of North East forests; and is engaged with regularly by the EPA in relation to site-specific forest research and auditing. In particular, NEFA referred to the following evidence of Mr Pugh: 1. In the 1990s, NEFA had a representative/s on the NSW government's formal advisory group for the purposes of State forestry environmental impact statement processes. 2. It had an active role in the implementation of the "National Forest Policy Statement" in NSW, and in the processes and activities that resulted in the RFA for North East NSW between the NSW and Commonwealth government committees in 2000. It had representatives on four State and/or Commonwealth government "technical committees" established for the "Comprehensive Regional Assessment" (CRA) process, being technical committees for (1) ESFM; (2) Environment and Heritage; (3) Social and Economic; and (4) Forest Resource and Management System (FRAMES). It also had a representative, Mr Pugh, on the "Joint Steering Committee". 3. NEFA said that "NSW [g]overnment regulators deeply engage with the findings of NEFA's audits, value its input and have often taken regulatory action for operations in [N]orth [E]ast forests on the matters raised in those audits, including by issuing infringement notices, official cautions and formal warnings".

[24]

Local community engagement

In relation to local community engagement, NEFA referred to VicForests v Kinglake Friends of the Forest Inc [18] where the Victorian Court of Appeal agreed with the assessment at first instance that significant weight could be attributed to the factor of community engagement and education in considering standing. Here, NEFA referred to the following matters: 1. NEFA has as one of its objectives "to raise public awareness of the values of northeast NSW native forests and foster research into same". 2. Through the involvement of volunteers, NEFA actively engages the local community in North East State Forests and educates the public on how to identify the presence of threatened listed species in public forests and the State regulatory regime for logging operations. It seeks to preserve and foster understanding of local forests by its members and the local and wider community, in particular, routinely engaging with volunteers in its forest audit activities. 3. NEFA routinely engages in public debate on environmental issues affecting the North East State Forests. For example, it regularly posts on its website information in relation to its activities and invites the local community and public to participate in its campaigns and citizen science audits of State Forests; it raises debate on native forest logging issues in the North East State Forests, with its activities referred to in national and local news media and it emails its members and subscription list with news and updates in relation to its activities and native forestry issues.

[25]

The importance of the environmental issue in question

In considering the question of standing, in ACF v Minister Davies J identified the relative importance of the environmental issue in question: "It is worth remarking that the controversy underlying the present dispute…is one of the major environmental issues of the present time…the present issue is not a local issue…". [19] Acknowledging changes in public perception since the 1980 decision of the High Court in ACF v Commonwealth, Davies J said the following: And, in the decade that has passed since the Australian Conservation Foundation was denied standing to protect the wetlands at Farnborough in central Queensland, public perception of the need for the protection and conservation of the natural environment and for the need for bodies such as the Australian Conservation Foundation to act in the public interest has noticeably increased…
In relation to the importance of the environment issue in question here, NEFA submitted that public perception of the need for the protection and conservation of the natural environment has "patently advanced" since Davies J's observations in 1989 "or, at the very least, has certainly not receded." NEFA submitted that "specific interest in and the need for the principles of ESFM has also advanced, in particular as a result of the impacts of the unprecedented bushfires of 2019/2020 on the environmental values of State Forests of coastal NSW."

[26]

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

In disputing NEFA's standing to bring these proceedings, FCNSW submitted that the proceedings are "in truth" proceedings to remedy or restrain apprehended breaches of the Forestry Act. In enacting the Forestry Act, Parliament provided in s 69ZA for standing to take proceedings to remedy or restrain breaches of Part 5B of the Forestry Act, including breaches of IFOAs (s 69ZA(2)(b)) and, FCNSW submitted, by extension operational plans. In providing that power to remedy or restrain actual or apprehended breaches of the Forestry Act, Parliament at the same time removed standing to take civil enforcement proceedings under other legislation where the apprehended breach results from the implementation of an approval under the Forestry Act.
Accordingly, the kind of proceedings that might be brought under the Forestry Act by someone other than the EPA has been limited. FCNSW submitted that there is no common law or statutory right to seek civil enforcement of the Forestry Act. On a proper construction of s 69ZA of the Forestry Act, judicial review proceedings may only be brought by a party who satisfies the common law criteria for standing.
FCNSW submitted that the starting proposition is that a special interest must be established which is more than a belief or concern, regardless of the subject matter of the litigation. FCNSW also relied on the observations of Gibbs J in ACF v Commonwealth at 530 to 531, extracted at [107] above.
Whilst FCNSW accepted that there are some indications that the Federal Court has treated the decision of ACF v Commonwealth as "speaking partly only to its own era, rather than as being a binding precedent for cases with similar facts", [20] it submitted that "this Court would not take such a relaxed approach to the High Court's decision" which is, and remains, the leading authority on common law standing. Although not establishing a formula for the consideration of the facts in every case, it was "plainly relevant, particularly in cases of standing involving interest groups seeking to protect the environment."
FCNSW submitted as follows in relation to whether NEFA satisfies the common law test for standing: 1. In respect of the test established in ACF v Commonwealth and built upon since then, NEFA "seeks to push the envelope when it comes to its standing suggesting that it meets the broad test [21] because it meets some of the criteria applied in ACF v Commonwealth and discussed in later cases, namely that there is connection between NEFA and the local environment, that it has a history of involvement and influence and a connection with the subject matter of the proceedings" (which NEFA says is the principles of ESFM). 2. Insofar as NEFA says it has been recognised by State and federal government bodies and that it engages with the local community, NEFA's evidence does not reach the threshold that would demonstrate that it has a relevantly special interest sufficient to establish standing. 3. In relation to the evidence of NEFA's president Mr Pugh, it might "be accepted that Mr Pugh has long held interests in the protection of forests, particularly in the [N]orth [E]ast region" of NSW, however that is irrelevant. That is because Mr Pugh is not NEFA, and his interests and motives are irrelevant. Rather, NEFA, an incorporated association, must demonstrate its standing. 4. The mere identification of an area of geographic interest - "the [N]orth [E]ast of NSW" - "is not sufficient to establish a connection over either the Braemar or the Myrtle State Forest greater than any other person or organisation with an interest in State Forests." The mere fact of NEFA's aims and objectives is inadequate to give it standing. As was observed by Gibbs J in ACF v Commonwealth at 531: Counsel for the Foundation sought to show an interest in two alternative ways - first, because of the nature of the Foundation and its objects and, secondly, because of the fact that it had sent written comments…the fact that the Foundation is incorporated with particular objects does not strengthen its claim to standing. A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same belief is in no stronger position. 1. As to the connection to the environment upon which NEFA relies, this appears to be on the basis of its "audits" of the Braemar and Myrtle State Forests (among others). There is no statutory basis for the carrying out nor the provision to the EPA of any such audit, nor was any prepared at the request of any State authority. Nothing can be taken from the fact that the EPA responds to the "audits": "It would be no different to any government agency responding to a complaint or other informal submission. An agency is generally expected to do so."

[27]

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

In relation to the question of NEFA's standing to bring these Class 4 proceedings, I find as follows: 1. There is presently no authority to support the proposition that standing at common law exists in relation to all matters concerning the protection of the environment. I have recorded, but reject, NEFA's submissions in that regard. 2. Section 69ZA of the Forestry Act departs from the open standing provisions in other environmental legislation, such as ss 252 and 253 of the POEO Act, s 193 of the NPW Act and s 9.45 of the EPA Act. However, whilst s 69ZA relates to proceedings brought in relation to breaches or threatened or apprehended breaches of specified statutory provisions (s 69ZA(1)), prohibits proceedings brought in relation to breaches of provisions, including of an integrated forestry operations approval specified (s 69ZA(2)), other than in relation to proceedings brought by persons and entities specified in s 69ZA(3), it goes no further to impose a limitation on the standing of persons to bring proceedings where they satisfy the special interest test articulated by the High Court in ACF v Commonwealth. The consequence is that the question of standing is to be determined by reference to the common law. 3. On balance, I find that NEFA satisfies the test for standing articulated in ACF v Commonwealth and has a sufficient "special interest" with the subject matter of the proceedings which is more than a belief or concern to bring these proceedings. The evidence establishes that: 1. NEFA has a special interest in relation to the native forests of North East NSW which include the Braemar and Myrtle State Forests. The matters on which NEFA relies in relation to its connection with the particular environment are set out at [113] above, and I find accordingly. 2. NEFA has a long history of involvement in the issue the subject of the proceedings, that is the protection of the forests of North East NSW. I refer to the matters relied upon by NEFA and set out at [115] above, and I find accordingly. 3. NEFA has a demonstrable concern with the subject matter of the proceedings, namely environmentally sustainable forest management. The matters upon which NEFA relies are set out at [116] above, and I find accordingly. 4. NEFA has been recognised by State and federal bodies, as set above at [118], and I find accordingly. 5. NEFA has demonstrated community engagement and standing. The matters on which NEFA relies are set out at [119] above, and I find accordingly. 6. In relation to the importance of the environmental issue in question, I accept NEFA's submission, recorded at [121] above.

[28]

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

Having found that NEFA has standing to bring the proceedings, a further central issue for determination is the status of an operational plan required under condition 53 of the CIFOA to be prepared by FCNSW, and whether the approval of an operational plan by a FCNSW planning supervisor is a decision reviewable by the Court in these Class 4 proceedings, or at all. This issue arises in relation to all three of NEFA's grounds of challenge, each of which concerns the approval by Mr Howat of the Braemar HHP and the Myrtle HHP.
Section 20(2) to (3) of the Land and Environment Court Act 1979 (NSW) (LEC Act) provides as follows (emphasis added): (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, … (3) For the purposes of subsection (2), a planning or environmental law is - (a) any of the following Acts or provisions - … Part 5A or 5B of the Forestry Act 2012, … or (b) any statutory instrument made or having effect thereunder or made for the purposes thereof, including any deemed environmental planning instrument within the meaning of the Environmental Planning and Assessment Act 1979, …
Accordingly, pursuant to s 20(2)(b) of the LEC Act, the Court has jurisdiction to "review…the exercise of a function conferred or imposed by a planning or environmental law". For the purposes of s 20(2), a "planning or environmental law", is defined to include any "statutory instrument made or having effect [under] or made for the purposes [of]" an Act or provision set out in s 20(3)(a), which includes Part 5B of the Forestry Act.
The expression "statutory instrument" is not defined in the LEC Act. However, the Interpretation Act 1987 (NSW) (Interpretation Act) defines "instrument" in s 3 in the following terms: 3 Definitions (1) In this Act - instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument. (2) In this Act - (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, in relation to a duty, a reference to the performance of the duty

[29]

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

NEFA submitted that the definition of "instrument" in the Interpretation Act supports as correct its position that an operational plan made under the CIFOA (the CIFOA being a statutory instrument made under Part 5B of the Forestry Act) is itself also a statutory instrument. Accordingly, the Court's jurisdiction under s 20(3) of the LEC Act is engaged. NEFA submitted that the Court has power to review the exercise of a function, relevantly, the approval of an operational plan, conferred or imposed by an environmental law, an operational plan being a statutory instrument made under another statutory instrument, namely the CIFOA, made under the Forestry Act.
Further, NEFA submitted, that whilst the CIFOA does not directly authorise any forestry operation, it makes provision for or with respect to the carrying out of forestry operations for which a further, specific approval is required under condition 53. Condition 53 permits FCNSW, acting through one of its planning supervisors, to approve a forestry operation by approving an operational plan under condition 53. An HHP is such an operational plan and takes its force from condition 53.
NEFA submitted that the Court would reject FCNSW's submission in its opening submissions that "the only approval of forestry operations is by the Ministers in the CIFOA", and that condition 53 concerning operational plans "is a timing provision" which "relates only to when forestry operations may be commenced." NEFA submitted that the "structure and arrangement of the CIFOA", viewed in its entirety, makes plain that the decision to approve an operational plan by a planning supervisor is a decision that enlivens the power of the Court to entertain an application for judicial review of that decision. NEFA submitted that the matters that an operational plan must address are "far more extensive than just the timing of commencement of operations".
In particular, NEFA submitted that the approval of an operational plan is "a necessary requirement" for FCNSW to be able to commence forestry operations, and that "[o]perational plans are the means by which [FCNSW] ensures that it carries out forestry operations in compliance with the CIFOA", referring to the following: 1. Condition 89.1 provides that "FCNSW must not commence a forestry operation until there is an approved and current operational plan for the forestry operation". 2. Every forestry operation must be planned, implemented and conducted in accordance with the conditions of the CIFOA (conditions 14.1(c) and 18). 3. Forestry operations must be carried out in accordance with the CIFOA, including the relevant operational plan (condition 19). 4. An operational plan "must…address the conditions of the approval" and "must…contain operational requirements in sufficient detail" to enable compliance with the conditions of the CIFOA (condition 53.4). The plain meaning of the phrase "must address the conditions" is that all conditions of the CIFOA should be considered and addressed in the operational plan.

[30]

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

FCNSW accepted that the Court has jurisdiction to hear and determine these proceedings pursuant to s 20(2) of the LEC Act, referring to the decision of Mundine v Forestry Corporation NSW (Mundine (Duggan J)), [23] an interlocutory decision in relation to proceedings in this Court that raises issues in common with those raised in these proceedings. There her Honour said at [6]-[8]: 6. Section 20(2)(a) of the Land and Environment Act 1979 (NSW) (LEC Act), provides: The Court has the same civil jurisdiction as the Supreme Court but for section 71 to hear and dispose of the following proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law development contract or a strata renewal plan. 7. For the purposes of that section, s 20(3)(a) nominates Pts 5A and 5B of the Forestry Act 2012 (NSW) (Forestry Act) as an environment law, and by s 20(3)(b) makes provision in respect of: (b) any statutory instrument made or having effect thereunder or made for the purposes thereof including any deemed environmental planning instrument within the meaning of the Environment Planning and Assessment Act 1979. 8. The 2021 and 2022 HHPs being approvals granted pursuant to the CIFOA which was granted pursuant to the provisions of Pt 5B of the Forestry Act are, I am satisfied, statutory instruments made or having effect thereunder, and therefore I am satisfied that the proceedings are relevantly within the jurisdiction of this Court.
Here, however, FCNSW submitted that "the question of jurisdiction is different to the question of justiciability". FCNSW said that there does not appear to be "a bright line as to when the ability to review a non-statutory function (such as approval of operational plans under the CIFOA) ceases." Historically, distinctions have been drawn between the exercise of statutory and non-statutory powers and functions in order to determine whether a decision is reviewable; however, in Muswellbrook Council v Hunter Valley Energy Pty Ltd (Hunter Valley Energy), [24] Leeming JA held that such distinctions were inapt. There, his Honour said at [201]: 201. …I see no reason why anything substantive should turn on whether the "power" is statutory or non-statutory. Indeed, the facts of this case suggest that the distinctions between "statutory" as opposed to "non-statutory", and "power" as opposed to "function", are inapt.

[31]

Conclusions in relation to the Court's jurisdiction/justiciability

Leeming, extracurially, in Authority to Decide: The Law of Jurisdiction in Australia, says: "Courts have authority to decide when two conditions are satisfied: when the exercise of judicial power resolves a justiciable controversy of a kind which falls within the court's limits, and when the persons bound by the exercise of judicial power are amendable to its exercise." [25] His Honour says the "most common, and by far the most important, limitation upon the authority of all Australian courts to decide controversies is as to subject matter". [26] In relation to judicial review, "where a statute confers authority upon an officer of the executive, on a tribunal, or on any court other than one of the seven constitutionally recognised Australian courts...to exercise power, its exercise or non-exercise is reviewable where this is 'jurisdictional error'". [27]
In relation to the Court's jurisdiction and the justiciability of the matters raised in these Class 4 judicial review proceedings, I find as follows: 1. An operational plan approved by a FCNSW planning supervisor is a separate approval to the Ministers' approval of forestry operations in the CIFOA. This is plain from the requirements of condition 53.4 of the CIFOA, that the operational plan address the conditions of the CIFOA, contain sufficient detail to enable the person proposing to undertake forestry operations to comply with the conditions of the CIFOA, and be "approved and dated" by a FCNSW planning supervisor. 2. Condition 53 of the CIFOA is not "merely" a "timing provision" which relates only to when forestry operations may be commenced. The requirements of condition 53 are more robust than stipulating the time at which forestry operations may commence. 3. The power embedded in condition 53, being a condition of statutory approval, is not immune from consideration of the legality of its exercise and is amendable to judicial review. As in Hunter Valley Energy, I do not consider that anything substantive should turn on whether the "power" is statutory or non-statutory. 4. The decision of a planning supervisor to approve an operational plan made pursuant to the embedded authority in condition 53 of the CIFOA enlivens the power of the Court to entertain an application for judicial review. 5. Accordingly, the Court has power (and jurisdiction) to review the decision of the planning supervisor.

[32]

Admissibility of expert evidence in relation to Grounds 1 and 3

It next arises to consider the admissibility of expert evidence in these Class 4 judicial review proceedings in which it is said by the applicant that a jurisdictional fact arises to be determined in relation to Grounds 1 and 3.
As recorded above at [89], FCNSW objected to the admission of Dr Phillips' affidavits and the Phillips report into evidence on the ground of relevance. However, in the event that the Court finds Dr Phillips' evidence to be relevant and admissible, FCNSW relied on the Ashby report.
On 4 August 2023, Moore J granted leave to both parties pursuant to rr 31.19 and 31.20 of the UCPR to adduce expert evidence.
Where expert evidence in judicial review proceedings is not reasonably required to resolve the grounds of review, leave under r 31.19 of the UCPR should not be given. While leave was given by Moore J on 4 August 2023, senior counsel for NEFA accepted that there was no opportunity on that occasion for the matter to be fully ventilated due to the truncated timetable for the preparation of the matter for hearing.
At the hearing on Monday, 14 August 2023, I admitted the evidence of Dr Phillips for NEFA and Ms Ashby for FCNSW subject to relevance. I determined to admit the evidence provisionally "given the alacrity with which the proceeding ha[d] been prepared for hearing".
It was uncontroversial that the general position in judicial review proceedings is against admitting expert evidence.
The legal principles in relation to the question of a jurisdictional fact were also uncontroversial. A party who alleges a jurisdictional fact in judicial review proceedings is generally entitled to lead evidence of its presence or absence. In Trives v Hornsby Shire Council (Trives), [28] Basten JA with whom Macfarlan and Meagher JJA agreed said at [11] that "[a]s a practical matter, a party challenging the existence of such a fact will be entitled to call evidence and, in effect, carry out a trial in the original jurisdiction of the court, to the extent necessary for the court to determine the fact".
At the time of the hearing before me, there was a proceeding in the Court heard and reserved before Pepper J which raises issues in common with the proceedings before me: Mundine v Forestry Corporation of NSW (Mundine (Pepper J)). In Mundine (Pepper J), there was agreement between the parties as to the relevant legal principles in relation to jurisdictional facts. In this matter, FCNSW accepted [21] to [28] of NEFA's closing submissions in Mundine (Pepper J) as follows: 21. There is no single test for a court to determine whether the existence of a particular fact is an essential precondition to the valid exercise of a power of approval. Rather the Court weighs together the factors identified and discussed in cases such as Woolworths v Pallas NewCo (2004) 61 NSWLR 707 and Timbarra Protection Coalition v Ross Mining (1999) 46 NSWLR 55 to seek to identify the intention of the instrument by which the power of approval was vested in the decision maker. Often they are grouped under the heading of 'essentiality' 'objectivity' and 'inconvenience'. 22. The cases do not give any easily-applied formula for determining whether or not a matter is such an essential precondition. At a high level of generality, the test remains that stated by the High Court in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [28]. The Court said: "The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlightens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion satisfaction of which mandates a particular outcome". 23. What is clear is that the issue is one of construction of the instrument by which the power is conferred upon the decision-maker. Consideration must be given to the language of the power under consideration in the total context of the legislative scheme under which the power is conferred. The nature of the "fact" is also relevant. "The determination of whether or not a fact is jurisdictional in the requisite sense can give rise to considerable difficulty and is a matter upon which reasonable minds can differ. There is no bright line between jurisdictional error and error in the exercise of jurisdiction. Nevertheless, the Court, being called upon to do so, must determine whether the repository of a statutory power has acted, or proposes to act, in a manner which transgresses the limits upon the exercise of the power that parliament has conferred." (Pallas Newco at [9]). 24. Generally the more recent cases have dispensed with the nomenclature of "jurisdictional fact". The language currently most commonly in use is that the question "involves a distinction between a fact that is an 'essential preliminary to the decision-making process' and 'a fact to be adjudicated upon in the course of the inquiry'". (Ross v Lane [2022] NSWCA 235 at [32], citing authorities including Pallas Newco at 46- 49.) 25. The Chief Justice, speaking for the majority in Pallas Newco, emphasised that the determination was closely related to the issue of "mandatory" and "directory" provisions and that one method of determining the issue is to ask whether it was a purpose of the legislation (and here, of the approval) that an act done in breach of the provision would be invalid. 26. While a number of judges in individual cases have talked of there being presumptions regarding statutory intention, no clear position to that effect has commanded consistent judicial support. Thus, in Ross v Lane, for example, Beech-Jones JA said at 37: "Ordinarily, the scope of the matters that must be considered by a decision-maker such as a consent authority in exercise of a statutory power is a matter for a court to determine and not the decision-maker themselves. One circumstance that is outside the ordinary is those statutes that expressly provide that the decision- maker may have regard to such matters as they 'consider relevant' but even these types of provisions have their limits. In this case there is no scope for a consent authority to determine not to have regard to the considerations specified … thus, subject to considering the terms of the particular instrument, whether or not the instrument applies to the land to which the development relates is not a matter for consent authority to authoritatively determine." (See also Pallas Newco at [50]-[51], per Spigelman CJ). 27. By way of contrast Basten JA in Ross v Lane suggested that ordinarily legislature should be assumed to intend a decision-maker to determine matters that require evaluative judgment, rather than making them objective preconditions. 28. With respect to both judges, they are not to be taken as stating any new test with the determination of the question or as laying down rules to apply in all cases. Rather, each should be taken as applying the process determined by the Court of Appeal in Pallas Newco, but placing emphasis on different aspects of the specific scheme that was before them. In the end, although they agreed on the result of the case, Beech-Jones JA would have found the question of whether SEPP 65 applied to the proposed development was a mandatory pre-condition to the exercise of power, and Basten JA would not. The case illustrates again Spigelman CJ's statement from Pallas Newco but the question is one on which reasonable minds can differ, even on the same facts.

[33]

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

At the hearing, NEFA contended that the evidence of Dr Phillips was admissible in relation to two issues: (1) in relation to Ground 1, whether forestry operations conducted in accordance with each of the two HHPs would achieve results consistent with ESFM principles; and (2) in relation to Ground 3, whether, at the date of each of the two HHPs, application of the CIFOA conditions, or any of them, would result in a poor environmental outcome or would, because of specific and unique circumstances, be unachievable. Each of those grounds was said by NEFA to raise a jurisdictional fact.
NEFA submitted that it is important to distinguish the present case from those in which the question arises at the point of seeking leave pursuant to r 31.19 of the UCPR to adduce expert evidence. As cases such as Shellharbour City Council v Minister for Planning (Shellharbour) [36] make clear, the "admonition of just quick and cheap" means that more is required than merely demonstrating that the evidence is admissible. In a case where leave has already been obtained and the evidence adduced, those considerations carry less weight. NEFA submitted that, even in cases in which a jurisdictional fact is not alleged, one of the well-established exceptions to the presumption against adducing additional evidence on judicial review is "to achieve an understanding of the environmental consequences of the action or inaction of [FCNSW]". [37]
Further, NEFA submitted that the present case must be distinguished from other Class 4 proceedings in which the Court has accepted that the decision-maker acted within jurisdiction, and the question was "whether he or she took account only of proper considerations, or acted manifestly unreasonably, or denied procedural fairness". The presumption in those cases that the evidence before the Court would be confined to the evidence before the decision-maker does not apply here "or does not apply with anything like the same force". In jurisdictional fact cases, NEFA submitted that "the Court's approach focuses more closely on confining the admissible evidence to the precise issue on which it can cast light, rather than excluding it at the threshold."
NEFA cited as a recent example the decision of Mundine (Duggan J), where her Honour (at [50] to [54]) granted leave to the applicant to adduce expert evidence of an ecologist in relation to one paragraph pleaded in its summons which raised a matter that was said to be a jurisdictional fact. While the question of whether that matter was a jurisdictional fact was to be determined at final hearing, her Honour said it appeared that the evidence that the applicant sought to adduce "would be necessary and relevant to the determination of the issues in dispute". [38]

[34]

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

In relation to the question of expert evidence, FCNSW referred to the observations of Giles JA in Shellharbour at [35]: 35. …The primary purpose of [r 31.19 of the UCPR] is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible.
FCNSW submitted that the admissibility of expert evidence "depends on the ground of review, the relevant issue and the nature of the evidence". [39] In this case, expert evidence is sought to be relied upon by the parties in relation to Grounds 1 and 3. That evidence, FCNSW submitted, could only be relevant to those grounds if the Court were otherwise satisfied that (1) Ground 1 properly seeks judicial review as opposed to civil enforcement of the operational plans; (2) Ground 1 properly discloses the existence of a jurisdictional fact that may be re-determined by the Court; (3) the evidence addresses such fact; (4) Ground 3 properly seeks judicial review as opposed to civil enforcement of the operational plans, and not the Court's determination of whether condition 23.4 has been "triggered" and/or complied with on the facts of this case; and (5) the evidence addresses such fact.
FCNSW submitted that none of the above five matters is met. In relation to Ground 1, FCNSW submitted that Dr Philips' evidence "simply does not address the principles of ESFM" and "only addresses what he says are potential impacts on the koala if forestry operations are carried out in accordance with the CIFOA." Such a narrow focus, FCNSW submitted, does not assist the Court in determining whether the implementation of the CIFOA achieves the principles of ESFM "as the concept and principles of ESFM require consideration of more than the potential impact on a single species", assuming that Dr Philips is correct about that potential impact. Dr Philips' evidence, FCNSW submitted, does not address, among other things, forest biological diversity as a whole, the long term social and economic benefits of native forests, or best practice forest management. NEFA's evidence, FCNSW submitted, could not "rationally affect (directly or indirectly) the assessment of the probability of the achievement of the principles of ESFM as a fact in issue in the proceedings".

[35]

Conclusions in relation to the admissibility of expert evidence

It arises for me to determine the admissibility of the evidence of Dr Phillips and Ms Ashby, and relatedly whether either or both of Grounds 1 and 3 raises a jurisdictional fact.
Section 55 of the Evidence Act 1995 (NSW) (Evidence Act) provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to - (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
Section 56 of the Evidence Act provides: 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.
I find as follows: 1. It may be that the present case can be distinguished from those where leave has not already been granted to adduce expert evidence. I am not so sure, and in any event nothing turns on such distinction here. 2. Nor, with respect, does the decision of Duggan J in Mundine (Duggan J) assist. There, her Honour granted leave to adduce expert evidence noting that the question of whether the matter was a jurisdictional fact was to be determined at final hearing. Here, the question of jurisdictional fact arises to be determined at final hearing. When Moore J granted leave to adduce expert evidence in these proceedings on 4 August 2023, senior counsel for NEFA accepted that there was no occasion for the matter to be fully ventilated. 3. It is correct, as submitted by NEFA, that the presumption against adducing additional expert evidence on judicial review does not apply in cases in which a jurisdictional fact is alleged. Here, NEFA alleges an existence of a jurisdictional fact in relation to Grounds 1 and 3 and seeks to rely on the expert evidence of Dr Phillips in relation to those grounds. 4. In relation to Ground 1, and on the assumption that I find that Ground 1 does raise a jurisdictional fact as alleged by NEFA, I accept FCNSW's submission that Dr Phillips' evidence does not address the principles of ESFM. His evidence goes to the potential impacts on the koala if forestry operations are carried out in accordance with the CIFOA. Without seeking in any way to diminish Dr Phillips' learning and scholarship, his evidence does not assist in the determination of Ground 1. 5. The evidence of Dr Phillips sought to be relied on by NEFA in relation to Ground 1 is not relevant evidence within the meaning of s 55 of the Evidence Act, and hence inadmissible pursuant to s 56 of that Act. 6. In relation to Ground 3, and on the assumption that I find that Ground 3 does raise a jurisdictional fact as alleged by NEFA, it is true that Dr Phillips expressed the opinion that each of the HHPs failed to "prevent a poor environmental outcome for local koala populations". Reasons for Dr Phillips' opinion included that additional surveys should be undertaken in order to "understand the extent and location of habitat being actively utilised by any resident population of koalas" within the Braemar and Myrtle State Forests, and that "it is not best practice forestry management...to apply koala habitat management prescriptions [in the CIFOA] that were developed prior to the 2019-20 bushfire events, and the ensuing uplisting of the koala to endangered". However, I accept FCNSW's submission that Dr Phillips provides no opinion as to whether, within the meaning of condition 23.4 of the CIFOA, a particular condition of the CIFOA would result in a poor environmental outcome, or that in a "specific and unique circumstance" compliance with the CIFOA would not be able to be achieved. Again, I make no criticism of Dr Phillips' learning and scholarship in concluding that his evidence does not assist in the determination of Ground 3. 7. The evidence of Dr Phillips sought to be relied on by NEFA in relation to Ground 3 is not relevant evidence within the meaning of s 55 of the Evidence Act and hence inadmissible pursuant to s 56 of that Act.

[36]

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

Having found that NEFA standing to bring and the Court has jurisdiction to entertain these proceedings, I turn to consider each of NEFA's three grounds of challenge.
By Ground 1, NEFA contends that each of the Braemer and Myrtle HHPs is invalid because there is an objective question in the nature of a jurisdictional fact as to whether the HHPs or forestry operations conducted in accordance with them were "in fact able to achieve the principles of ESFM". NEFA contends that the FCNSW planning supervisor could only validly approve an operational plan if: 1. in accordance with condition 53.4(a) of the CIFOA, the plan "address[es] the conditions of the approval", relevantly condition 14.1 which requires that any forestry operation be carried out in accordance with the principles of ESFM; and 2. the plan contains operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to conduct such operation in accordance with the principles of ESFM.

[37]

NEFA's submissions in relation to Ground 1

NEFA submitted that the Court would reject FCNSW's contention in its opening submissions that condition 14.1 is not a "condition", but rather an "objective". On a proper construction of the whole of the CIFOA, NEFA submitted, it is clear that condition 14.1 is an operative condition for the following reasons: 1. Protocol 39 to the CIFOA provides that where there is a reference to a "condition" of the approval, it is a reference to a condition in the main body of the approval (conditions 1 to 125). There is no distinction between "conditions" and "objectives". 2. Conditions 6.1 and 123.1(d) provide that headings, notes and outcome statements are to assist interpretation, but do not form part of the approval and are not enforceable on their own. Those provisions do not refer to "objectives". Similarly, condition 124.2 provides for references to a Chapter, Part, condition or Schedule in the approval, but does not refer to "objectives". 3. Condition 4.1 provides that the approval must be interpreted in a manner that is consistent with achieving and giving effect to the "outcome statements", but those statements do not otherwise form part of the approval and are not enforceable on their own. The outcome statements appear to operate as objectives for the conditions in each relevant Division or Chapter that includes such a statement, but are not numbered in the same way as conditions, rather "are presented in a textbox that sits above conditions". 4. In Protocol 38, condition 38.1(2) provides that "[t]he conditions of the approval must be monitored to ensure they are effective in achieving the objectives and outcome statements set by the approval" (and see also the outcome statement at condition 121.1). 5. Other than in conditions 14 and 15, "objectives" are referred to only in conditions 23.1 and 23.3 which provide a process for the EPA to review a "condition, objective or outcome of the approval" in certain circumstances.
In relation to the application of principles to Ground 1, NEFA submitted that the Ministers, in approving the CIFOA, selected the point of approval of an operational plan as one of the points at which the principles of ESFM must be applied. Section 69P(2)(a) of the Forestry Act provides for an integrated forestry approval to, inter alia, "make provision for or with respect to the carrying out of forestry operations". NEFA submitted that s 69M of the Forestry Act (concerning the granting of approvals by the Ministers) read together with s 69P, provides the Ministers with several options for how an approval is to take effect. The approval may also be subject to the conditions of a licence under the Biodiversity Conservation Act 2016 (NSW) (Biodiversity Conservation Act), Fisheries Management Act 1994 (NSW) (Fisheries Management Act) or POEO Act, meaning that in such cases a forestry operation will not be authorised until a licence is obtained and the conditions met. An integrated forestry operations approval is also subject to protocols in force from time to time so that at the time of making of an approval it may be impossible to know whether a particular operation in a particular location will be authorised at the time it is proposed to be carried out. Those factors, NEFA submitted, preclude an interpretation of the Forestry Act requiring an approval under s 69M approving "once and for all" the operations that may be conducted.

[38]

FCNSW's submissions in relation to Ground 1

In relation to Ground 1, senior counsel for FCNSW described FCNSW's submissions as follows: We, with respect, take exactly the opposite approach - which is to say that it is a living document, and that it has been deliberately designed by the ministers in their approval - subject to conditions - after consultation with not just the public but all relevant stakeholders - to ensure that the approval at the time of the approval in '18 is consistent with ESFM, and the approval has inbuilt processes to ensure that it continues to comply with the principles of [ESFM] during the life of the approval.
FCNSW submitted that whether condition 53 of the CIFOA imposes a jurisdictional fact as alleged by NEFA is a question of construction and must be considered having regard to the statutory scheme in which the CIFOA operates, as well as the CIFOA read as a whole. In principle, FCNSW adopted the principles identified by NEFA in relation to the determination of a jurisdictional fact. However, FCNSW considered that NEFA's attempt to distinguish this matter from Ross v Lane was misplaced. FCNSW submitted that the cases do not elevate the importance of a "gate keeper" or "neutral decision maker" in determining whether a jurisdictional fact exists as a matter of statutory construction. In particular, FCNSW also referred to Pallas Newco where Spigelman CJ observed at [5] to [6]: 5. The case law and legal literature contains a great deal of terminological confusion about the concepts of "jurisdiction" and "jurisdictional facts". The authoritative statement of the relevant concept for Australia is set out in the joint judgment of the High Court in Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at [28]: "The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome." 6. The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional.

[39]

Conclusions in relation to Ground 1

In relation to the question of jurisdictional fact raised in NEFA's submissions in relation to Ground 1, I find as follows: 1. Condition 53 of the CIFOA does not refer to the principles of ESFM. Rather, it sets out the operational requirements which FCNSW must meet for each forestry operation. Condition 53.4 provides that each operational plan must address the conditions of the approval; contain operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to comply with the conditions of the approval; and be approved and dated by a FCNSW planning supervisor. Condition 53 does not specify any matters to be considered by the FCNSW planning supervisor in determining whether to approve an operational plan. 2. Nor can it be implied from condition 53 or the CIFOA as a whole that the approval of an operational plan is conditional on the FCNSW planning supervisor being satisfied that the operational plan complies with the principles of ESFM. The language of condition 53.4(a) - that the operational plan "address the conditions of the approval" - does not require the plan to demonstrate compliance with each condition of the CIFOA. Rather, the planning supervisor is required to be satisfied that the operational plan addresses the conditions of the CIFOA in order to ensure that the plan has been prepared in accordance with the requirements of Protocol 4. I find that the two operational plans, the Braemar HHP and the Myrtle HHP, were prepared in accordance with the requirements of Protocol 4 which sets out "General requirements" and "Specific operational plan requirements". 3. Nor does condition 53.4(b) take NEFA's case any further. The requirement of compliance with the conditions of the approval to which condition 53.4(b) refers is that of the "person proposing to undertake the forestry operation" the subject of the operational plan; it is not a requirement of the plan itself. That is not to say that FCNSW can authorise itself to conduct otherwise unlawful operations. Rather, the condition requires the operational plan to contain "operational requirements in sufficient detail" to enable that compliance. It does so by complying with the general and specific requirements of Protocol 4. It is the "person proposing to undertake the forestry operation" who must ensure compliance with the conditions. That person must be a "suitably qualified person", as required by condition 18.1(c), a person defined in Protocol 39 as "[a] person who has experience or qualifications, or both, which enable them to carry out the requirements of a described job or task in a competent and professional manner and, where relevant, comply with the specific requirement of Protocol 6: Suitably qualified persons - training and experience". 4. Nor does it follow that because there is no requirement for a consultation process prior to the approval of an operational plan that compliance with the principles of ESFM is a precondition to the exercise of the power to approve the plan. There is, and here was, a process of public consultation in accordance with s 69NA of the Forestry Act before the grant of the approval by the Ministers. Public consultation processes are associated with the monitoring program which oversees ongoing compliance of the approval with the principles of ESFM. That renders this case akin to Australian Heritage Commission [46] where a feature of the statutory scheme which was said to indicate that the primary decision maker could conclusively determine whether a place should be registered was that the decision could only be made after a process of public consultation. 5. It is of significance that Protocol 4 which sets out "General requirements" and "Specific operational plan requirements" nowhere require that an operational plan independently address the principles of ESFM. Rather, those principles are addressed in the conditions of the CIFOA itself and are implemented by the operational plan complying with the general and additional specific requirements specified in Protocol 4: 1. Under condition 4.2(2)(b) of Protocol 4, if FCNSW proposes a forestry operation in any area within the known habitat or potential habitat of a relevant subject species, the operational plan must include the requirements of (1) any flora road management plan required to be implemented during the forestry operation in the operational area for that species under condition 83 of the approval; and (2) any species management plan required for that species under condition 82.1 of the approval. 2. Under condition 4.2(2)(c) of Protocol 4, if a forestry operation is a harvesting operation or roading or burning operation, then the operational plan must also include (1) the results of the targeted flora and fauna surveys and BAHS where conducted, as required by conditions 56 and 57 of the approval and Protocol 20; (2) each species-specific condition to be applied to the forestry operation in accordance with Chapter 4, Divisions 4 and 5 of the approval; (3) each site-specific biodiversity condition prepared under Protocol 31; (4) each site-specific research condition relevant to the operational area as approved under Protocol 5; and (5) identification of areas of the compartment that are subject to seasonality restrictions and the seasonality restrictions that apply to each area as determined in accordance with Protocol 12. 3. There are also specific operational requirements for harvesting operations (condition 4.2(3)), for roading operations (condition 4.2(4)), for burning operations (condition 4.2(5)), for forest products operations (condition 4.2(6)), and specific requirements for regeneration (condition 4.2(7)). 1. Accordingly, there is scrutiny of the consistency of the operational plan with the principles of ESFM through the approval process provided for in condition 53 of the CIFOA. That scrutiny is provided by the process of preparing the plan in accordance with Protocol 4 and confirmation by the FCNSW planning supervisor that the plan has been prepared in accordance with and addresses the conditions of the CIFOA. Here the two operational plans - the Braemer HHP and the Myrtle HHP - complied with the requirements of Protocol 4, and addressed the conditions of the CIFOA for the purposes of condition 53.4. 2. It is clear from the authorities that the determination of whether a fact said to be jurisdictional is a jurisdictional fact requires "careful analysis of the statute which confers the jurisdiction", "the language of the power under consideration" and "the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and the facts said to be jurisdictional". [47] Having found that the embedded decisions of FCNSW (Mr Howat) to approve the operational plans are amenable to judicial review, I am not satisfied that condition 53 of the CIFOA contains a jurisdictional fact. Construing the CIFOA as a whole, and the statutory scheme in which it operates, and applying the observations of Spigelman CJ in Pallas Newco at [5]-[6] and Basten JA in Trives at [9]-[11] and [37], I do not consider that consideration of and the making of a finding as to the achievement of the principles of ESFM was a jurisdictional fact in the sense of an essential precondition to the exercise of the power of FCNSW (Mr Howat) to approve the operational plans. It is not a fact to be determined by the Court in its original jurisdiction with the function of reviewing Mr Howat's decisions to approve the operational plans. 3. The approval of an operational plan, as I have found at [154(1)] above is a separate approval from that of the Ministers to approve forestry operations in the CIFOA. However, I find in relation to Ground 1 that the legislative scheme of the Forestry Act does not indicate that the principles of ESFM are required to be separately considered and applied at the level of an operational plan. 4. I find that condition 14.1 of the CIFOA states an objective of the approval, and not an operative condition. Nothing in s 69M of the Forestry Act or in s 69L (with its "elaborate definitions" of the principles of ESFM) or in the CIFOA as a whole detracts from that conclusion. I accept the submissions of FCNSW above at [211] to [213] in relation to a textual analysis and harmonious reading of the whole of the approval. 5. Plainly, condition 53.4 of the CIFOA requires an operational plan to address the conditions of the approval. However, I do not consider from consideration of the Forestry Act as a whole, including the objects of FCNSW in s 10 which in turn include compliance with the principles of ESD which include principles of ESFM and the "elaborate definition" of the principles of ESFM in s 69L, as well as the CIFOA as a whole, that that requirement extends to a consideration of the principles of ESFM in the making of an operational plan. 6. Undertaking the balancing of the indicators in the statutory scheme in favour of and against jurisdictional fact in accordance with Trives at [37], I am unable to conclude that the characterisation of whether the HHPs or operations conducted in accordance with them were "in fact able to achieve the principles of ESFM" is jurisdictional. NEFA has not demonstrated any jurisdictional fact or condition on the exercise of power by the FCNSW (Mr Howat) to approve the two operational plans that arises from the Forestry Act or the CIFOA. 7. That is because, as submitted by FCNSW, there is nothing in the Forestry Act or the CIFOA which requires the principles of ESFM to be considered and applied at the level of the approval of an operational plan. It is at the time of deciding whether to grant an approval that the principles of ESFM are required to be considered. It is, as submitted by FCNSW, sufficient that the operational plan contains the necessary information and is approved in accordance with condition 53.4(c). 8. Nor do I accept NEFA's submission that the CIFOA is "a static instrument that can only be amended under the less versatile statutory processes prescribed by s 69R". I accept FCNSW's submissions in relation to the capacity to amend the CIFOA and to address changing environmental conditions summarised at [208] to [209] above.

[40]

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

[41]

NEFA's submissions in relation to Ground 2

In addition and in the alternative to Ground 1, NEFA submitted that condition 53 makes the capacity of a person carrying out a proposed forestry operation to comply with the conditions of the CIFOA, in particular condition 14, a mandatory consideration. That was submitted to require the assessing officer to consider (1) "which conditions are called up" by the proposed forestry operation sufficient to "ask whether the draft operational plan contains information to permit forestry operations to comply with the CIFOA"; and (2) to determine whether each such condition has been addressed in the operational plan. Again, NEFA submitted that the decision maker is "not given discretion but is required to consider those two matters".
NEFA submitted that it would be impossible for a planning supervisor considering a proposed operational plan to be satisfied that the requirements of condition 53.4(a) and (b) had been met without taking into account the requirements of each paragraph of the condition, and concluding either that it was not relevant to the proposed forestry operation, or that the draft operational plan "addressed it and contained sufficient detail to permit the person implementing the plan to comply with the condition." NEFA submitted that the discretion to approve an operational plan is not unconstrained; rather, "[c]onsideration of the conditions, and the capacity to comply with them in implementation, are necessary" in the sense of mandatory considerations.
In particular, NEFA submitted that: 1. "Harvesting is clearly a type of forestry operation likely to affect the environment", and that someone considering approving it is required to consider the conditions which deal with environmental protection, condition 14 of the CIFOA being one such condition. 2. If "the Court is of the view that the proposed forestry language of condition 53 is insufficient to make consideration of whether the operation will comply with condition 14 mandatory, then as a matter of statutory construction it is seen to be so nonetheless". NEFA referred to the test, much repeated, articulated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (Peko-Wallsend), [48] in relation to the determination of the factors a decision-maker is bound to consider in making a decision by construction of the statute conferring discretion. 3. The test stated by Mason J in Peko-Wallsend would be read as extending to any statutory instrument under which the relevant power is conferred. 4. The structure of condition 14.1 tells against the principles of ESFM being taken into account merely by complying with the CIFOA: "That would be to make 14.1(c) do all the work and render 14.1(a) meaningless". 5. FCNSW did not appear to contend, and hardly could contend, that the operations proposed under the two HHPs would make consideration of the principles of ESFM irrelevant, or that the "two supervisors formed that view": "It was therefore compulsory to consider whether the proposed HHP addressed those principles, and to consider whether a person proposing to implement each HHP would be able to comply with those principles". 6. On the face of the documents, FCNSW did not consider the principles of ESFM in approving the Braemar HHP and the Myrtle HHP, there being no reference to the principles of ESFM in either operational plan. That was "hardly surprising" given FCNSW's position that it was not required to consider ESFM in approving an operational plan because it was already considered by the Ministers when making the CIFOA, and because condition 14.1 is an objective and not a condition. 7. Such failure amounts to jurisdictional error. In Buck v Bavone, [49] Gibbs J said: "a person affected will obtain relief from the courts if he can show that the authority has … failed to consider matters that it was required to consider…".

[42]

FCNSW's submissions in relation to Ground 2

FCNSW submitted that its submissions in relation to Ground 1 are also relevant to Ground 2 which is an allegation that FCNSW failed to consider a matter alleged to be mandatory, namely condition 14 of the CIFOA. In particular, FCNSW submitted that: 1. Whether a decision maker is required to consider a matter is a question of law which depends on an exercise of statutory construction. A mandatory relevant consideration may be express or implied from the "subject matter, scope and purpose" of the relevant statute. [50] There is nothing express or implied in s 69L of the Forestry Act or the subject matter, scope and purpose of the Act more generally which mandates a person approving an operational plan to consider the principles of ESFM. Subsections 69L(1) and (2) identify the purpose of Part 5B of the Act, but do not mandate any particular outcome. 2. The purpose of Part 5B is to provide a framework for forestry operations that authorises the carrying out of those operations in accordance with the principles of ESFM. An operational plan is not a document which authorises any forestry operations to be carried out: the CIFOA is the relevant authorisation. 3. While s 69L might require the relevant Ministers to consider the principles of ESFM in determining whether to grant an integrated forestry operations approval, "that does not logically translate to a requirement that a FCNSW planning supervisor approving an operational plan under such an IFOA is also, and separately, required to consider those principles". The requirement to consider the principles of ESFM is "restricted to the making of an IFOA" (emphasis added). So much was submitted to be confirmed by the second reading speech for the Forestry Legislation Amendment Bill 2018 (NSW) that introduced Part 5B to the Act (emphasis added): The Forestry Legislation Amendment Bill 2018 amends the Forestry Act 2012 to update and streamline provisions related to IFOAs, enhance the framework for regulating native forestry, and amend the arrangements for how ForestCorp may operate. Specifically, the Forestry Legislation Amendment Bill 2018 makes the following amendments related to IFOAs. It enshrines the principle of ecologically sustainable forest management as an objective in the Act when making an IFOA, and the objective of conserving species, populations and ecological communities under the Fisheries Management Act 1994. It requires the relevant Minister to consult with the Minister administering the Fisheries Management Act 1994 before approving an IFOA to ensure that important threatened species matters are considered. 1. There is no requirement for the FCNSW planning supervisor to consider the principles of ESFM at large, beyond considering whether the operational plan addresses the specific conditions of the CIFOA by ensuring compliance with the requirements of Protocol 4 which relates to operational plans. 2. As to condition 53, the only matters that the FCNSW planning supervisor is required to consider are whether the operational plan includes the documents identified in condition 53.3, addresses the conditions of the CIFOA as required by condition 53.4(a), and contains operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to comply with the conditions of the CIFOA as required by condition 53.4(b). Practically, the way the FCNSW planning supervisor ensures that the operational plan addresses the conditions of the CIFOA including condition 14 is to confirm that the plan was prepared and complies with the requirements of Protocol 4. 3. The statements of reasons for both operational plans confirm that this is what occurred here. In relation to each of the operational plans, Mr Howat: 1. reviewed the "Pulse Checklist", being the "'Pulse' due diligence checklist for the Harvest and Haul Plan for Compartments 6 & 7 of the Braemer State Forest" and for "Compartments 10 to 16 of the Myrtle State Forest", which had been completed for the purpose of confirming that the procedural steps set out in an internal FCNSW document titled "Harvest Planning Manual" had been completed (being guidance material in relation to the process for the preparation and approval of operational plans under the CIFOA (the Harvest Planning Manual)); 2. reviewed the "ArcMap mapping layers with respect to the landscape features affecting the compartments"; and 3. undertook a review of documents underpinning each of the operational plans and the conditions recorded in them, such that he was satisfied that: 1. the steps in the Harvest Planning Manual had been completed in relation to the operational plan, appropriate steps had been taken in the planning of the operational plan (including the completion of the "Ecology Report", and the "Soil Dispersibility Assessment Report" said in the statements of reasons to be "in accordance with the CIFOA"); and 2. the conditions imposed in each of the operational plans, including the application of measures consistent with the "Post-Fire Standard Operating Procedure", were appropriate.

[43]

Conclusions in relation to Ground 2

In relation to Ground 2, I find as follows: 1. In essence, in Ground 2 NEFA contends that condition 14 of the CIFOA which sets out the general objectives of the approval is a mandatory consideration in the determination by the FCNSW planning supervisor to approve an operational plan. 2. Whilst s 69L of the Forestry Act plainly requires the relevant Ministers to consider the principles of ESFM in determining whether to grant an approval, there is nothing in condition 14 of the CIFOA read in isolation, in the context of CIFOA as a whole, or in the Forestry Act which requires a FCNSW planning supervisor in approving an operational plan separately to consider those principles. 3. The planning supervisor is required to consider whether the operational plan includes the documents identified in condition 53.3, addresses the conditions of the CIFOA as required by condition 53.4(a) and contains operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to comply with the CIFOA as required by condition 53.4(b). The statements of reasons for both operational plans, as submitted by FCNSW at [226(6)] above, confirm that this is what occurred here, and NEFA did not contend otherwise. 4. The principles of ESFM were taken into account by the Ministers in granting the CIFOA. Again, NEFA did not contend otherwise.
Accordingly, Ground 2 must fail.

[44]

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

In Ground 3, NEFA alleges that FCNSW's failure to seek SSOCs prior to approving the Braemar HHP and the Myrtle HHP resulted in the operational plans being made without power, and hence void and of no effect.

[45]

NEFA's submissions in relation to Ground 3

NEFA submitted that FCNSW "was required to seek SSOCs in circumstances where, as a consequence of the 2019-2020 bushfires, the necessary preconditions to seeking SSOCs were satisfied because applying the CIFOA conditions in the Myrtle and Braemar State Forests would result in a poor environmental outcome or in a unique circumstance the CIFOA conditions could not be complied with".
In relation to the process outlined in conditions 23.4 to 23.6 (the SSOC process), NEFA submitted that condition 23.4 required FCNSW to seek SSOCs prior to commencing a forestry operation where either of the following preconditions contained in the chapeau to condition 23.4 was met (the SSOC preconditions): (1) applying a condition of the CIFOA at a specific site would result in a poor environmental outcome; or (2) in a specific and unique circumstance, FCNSW would not be able to comply with the conditions of the CIFOA.
In its written submissions in relation to Ground 3, NEFA contended that the following five propositions are established: 1. the SSOC preconditions are necessary preconditions to the SSOC process; 2. the SSOC preconditions were met in relation to the Braemar and Myrtle State Forests; 3. FCNSW must seek SSOCs where either or both of the SSOC preconditions are met and it seeks to conduct forestry operations; 4. the SSOC process relates to the approval of HHPs as they authorise forestry operations; and 5. FCNSW's failure to seek SSOCs prior to approving the Braemar and Myrtle HHPs invalidated the HHPs.

[46]

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

NEFA submitted that the presence of either or both of the two SSOC preconditions is "necessary to enliven the SSOC process"; this was because the word "or" appears between the SSOC preconditions. Again, the question as to the characterisation of a jurisdictional fact, objective or subjective, was submitted to be a question of statutory construction, the language of the chapeau to condition 23.4 and the construction of the CIFOA indicating that the SSOC preconditions are "objective jurisdictional facts" for the reasons summarised as follows: 1. The starting point for ascertaining whether a fact or circumstance is a jurisdictional fact must be the words of the statute, read in their context. [51] Here, the two SSOC preconditions are expressed as essential preconditions to the "exercise of the SSOC process". In Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources, [52] the Federal Court held at [21] and [25] that although there is no strict verbal formula, the existence of a jurisdictional fact is frequently signalled by the use of expressions such as "where 'x' exists", or "when 'x' exists" or "if 'x' exists", then a person is empowered or obliged to act or refrain from action. The "x" in this format is the relevant fact or circumstance which is a condition precedent to the exercise of a power or performance of a duty. NEFA submitted that the SSOC preconditions in the chapeau to condition 23.4 existing as "essential preliminary matters that operate independently to the power conferred on FCNSW to seek SSOCs" was a strong textual indicator that the Ministers intended the existence of the fact, objectively, to condition the seeking of SSOCs. 2. The SSOC preconditions are not expressed as being subject to "FCNSW's opinion," "satisfaction" or "reasonable belief." The language of condition 23.4 is to be contrasted with that of condition 23.1 which provides that FCNSW can seek the review of a condition, objective or outcome of the approval where certain preconditions are "in FCNSW's opinion" met. 3. Nor are the SSOC preconditions expressed as matters to be "taken into account" or to be "taken into consideration". Rather, "where an SSOC precondition is met, then if FCNSW seeks to proceed with forestry operations, FCNSW must enliven the SSOC process", and does not have the "option to derogate from the SSOC process if it seeks to proceed with forestry operations". 4. The SSOC preconditions are confined to a consideration of whether the application of a condition would result in a poor environmental outcome and whether FCNSW can comply with conditions of the CIFOA in relation to an individual forestry operation. These matters can be "readily determined with little inconvenience when applied to a specific forestry operation". The matters to be considered are confined to whether either of the two SSOC preconditions has been met in relation to an individual forestry operation, suggesting "that they are contingent upon the existence of a fact that must be determined objectively". 5. The SSOC preconditions "go to the heart of whether the CIFOA is adequate at the scale of individual forestry operations". It would be "inconsistent with the construction of the CIFOA" for FCNSW to "subjectively determine whether it can meet the requirements of the CIFOA and authorise its own forestry operations where they fall outside of the scope of the CIFOA". 6. FCNSW's forestry operations are only authorised by the CIFOA where they comply with the conditions of the approval. This is evident from the following conditions of the CIFOA: (a) condition 7.1 which provides that "FCNSW must comply with the conditions of the approval and the protocol, as applicable"; (b) condition 8.2 which provides in condition 8 (which concerns the relationship of the approval with which the approval requires compliance) that "nothing in this condition authorises the carrying out of a forestry operation in breach of the approval"; (c) the chapeau to condition 13.1 which provides that "[t]his approval authorises the carrying out of the operations and activities…in accordance with any other conditions, terms and requirements in this approval and, where relevant, the protocols"; (d) condition 14.1(c) which provides that the "overall objective of the approval is to authorise the carrying out of forestry operations set out in condition 13…in accordance with the conditions of the approval and the protocols, as applicable"; and (e) condition 19.1 which provides that "forestry operations covered by the approval must be carried out in accordance with the approval, including in accordance with any relevant operational plan, during and at completion of a forestry operation in an operational area". 7. The SSOC process enables the conditions of the CIFOA to be reviewed or amended where either of the two SSOC preconditions apply; specifically, condition 23.4 which states the EPA may grant SSOCs specifying "(i) the conditions of the approval that must be implemented at the specific site for at least the duration of the forestry operation"; and condition 23.5 which provides that where a SSOC has been issued by the EPA to FCNSW, "the relevant forestry operation must be carried out in accordance with the [SSOC]", and unless otherwise specified in the SSOC, "all other conditions of the approval must be complied with". Condition 23.5 therefore indicates, NEFA submitted, that SSOCs can "abrogate and/or replace specific conditions of the CIFOA because the SSOCs can specify that forestry operations need not be in accordance with a specific condition of the CIFOA". 8. The SSOC preconditions refer to circumstances in which individual forestry operations do not comply with the CIFOA and would, subject to the granting of SSOCs, be prohibited (referring to Protocol 5 concerning approvals for restricted activities). The SSOC precondition "that in a specific or unique circumstance FCNSW would not be able to comply with the conditions of the approval" indicates that "the SSOC process applies where FCNSW cannot otherwise operate within the scope of the CIFOA". The SSOC precondition that "if applying a condition of the approval at a specific site would result in a poor environmental outcome" also relates to FCNSW's ability to meet the requirements of the CIFOA. Again, NEFA submitted this manifested "a clear intention" to authorise forestry operations that will not result in a poor environmental outcome, citing conditions 14.1 to 15.4 requiring, inter alia, the protection of threatened species and their habitats from the impacts of forestry operations, and Protocol 2.2(4) requiring the annual plan to be submitted by FCNSW to the EPA to demonstrate planning to reduce the cumulative impacts of forestry operations in the CIFOA region. 9. Where condition 23.4 has been "enlivened", Protocol 5 which relates to restricted activities applies and provides that where an SSOC precondition is "enlivened", "forestry operations are prohibited unless approval is granted by the EPA through SSOCs". Not only is FCNSW required to submit a report to the EPA in accordance with Protocol 5, condition 23.4 is expressly identified as a restricted activity in item 6 of Table 1 to the protocol, Protocol 5.2 providing: "The conditions require approval by the authority or person in column 4 of table 1 below, in accordance with this protocol, before FCNSW carries out a restricted activity, as set out in column 2 of table 1". 10. The proper construction of condition 23.4 suggests that while FCNSW "is given power to seek SSOCs so that it can proceed with a particular forestry operation where an SSOC precondition applies, it does not have power to develop and sign off on those SSOCs". The appropriate body "to assess the extent to which the CIFOA can be remedied through SSOCs in relation to individual forestry operations is given to the EPA under condition 23.4(b)". The language of condition 23.4(b) can be contrasted with that of condition 23.2 which requires the EPA to consult with FCNSW when the EPA is considering relevant issues under the process of reviewing a condition, objective or outcome of the CIFOA. The SSOC process contains no similar consultation requirement. Further, it was submitted: "because condition 23.4 goes to the very heart of whether the CIFOA conditions can be complied with, and without such compliance FCNSW would be conducting forestry operations without power, the construction of condition 23.4 to 23.6 indicates that whether either SSOC precondition is met is an objective jurisdictional fact (a factual determination)". 11. Despite "regulating" the CIFOA, the EPA has no express power to compel FCNSW to seek SSOCs which "heightens the significance of FCNSW's power to seek SSOCs". The chapeau to condition 23.4 does not specify who is to determine whether either of the SSOC preconditions has been met. From a practical perspective, it is likely that FCNSW is the relevant body to assess whether the SSOC process has been enlivened. That is because FCNSW approves its own HHPs which are to address the conditions of the CIFOA under condition 53.4 in relation to each individual forestry operation. It is therefore most likely to hold relevant information to enable it to assess whether either SSOC precondition is met prior to the commencement of a forestry operation. Further, the EPA is only provided with an HHP once it has been approved under condition 53.5 (or varied under condition 53.8). It would be "unlikely" that the EPA would be aware that FCNSW determined to proceed with a forestry operation in circumstances where either of the SSOC preconditions has been met unless it receives a report under condition 24.3(a) from FCNSW, or the HHP for a relevant forestry operation has been approved by FCNSW and provided to the EPA. 12. Finally, NEFA submitted, because the EPA has the function of monitoring and enforcing forestry operations under the CIFOA, it would be inconsistent with the statutory scheme to interpret the assessment of whether an SSOC precondition has been met as a subjective assessment that "conclusively determines" whether FCNSW's forestry operations comply with the CIFOA.

[47]

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

In relation to NEFA's second proposition in relation to Ground 3, NEFA submitted that either and/or both of the SSOC preconditions were "satisfied as objective jurisdictional facts" or, in the alternative, that FCNSW "formed the view that they were satisfied as subjective jurisdictional facts".
NEFA noted that FCNSW's own assessment of the impacts of the 2019/2020 bushfires indicates that 45% of forest reserves in the Casino Management area (in which the Braemar and Myrtle State Forests are located) were subject to high or extreme fire damage. At the compartment scale, the operational areas of the Myrtle and Braemar State Forests were subject to mostly high and extreme severity fire in 2019: "The severity of the fire in those State Forests indicates that the fundamental assumptions upon which the CIFOA prescriptions were based (such as the forest values) have been altered".
NEFA also noted that the language of the first SSOC precondition is confined to consideration of whether applying "a condition" would result in a poor environmental outcome, therefore indicating that the consideration can be confined to the application of a single condition, rather than all conditions under the CIFOA. This language was to be contrasted with that of the second SSOC precondition which refers to "conditions".
NEFA submitted that koalas are listed threatened species known to occur in both the Braemar and Myrtle State Forests prior to and following the 2019/2020 bushfires. Following the 2019/2020 bushfires, the koala was up listed from a vulnerable species to an endangered species for the purposes of the BC Act and the EPBC Act. NEFA submitted, that most koala populations, and particularly those affected by the 2019/2020 bushfires, have been significantly impacted and are now on a trajectory of decline.
Further, in relation to its second proposition concerning Ground 3, NEFA submitted that applying KBP2 (koala browse prescription 2) in condition 65 will result in a poor environmental outcome for the following reasons. First, condition 65 KBP2 merely requires the retention of a minimum of 5 koala browse trees per hectare of net harvest area in areas where KBP2 applies, or where there are contemporary koala records. "Koala browse tree" is defined in Protocol 39 in relation to the Upper North East Subregion as a live tree selected for retention that is (1) greater than 20 centimetre DBH; (2) live and healthy; and (3) one of the listed species within primary browse trees and secondary browse trees. NEFA submitted that condition 65 does not provide for the retention of suitable koala habitat because FCNSW is only required to retain trees that are greater than 20 centimetre DBH. Because timber harvesting invariably targets larger size-class trees, it is "entirely possible" that under the CIFOA prescriptions, koala browse trees greater than 30 centimetre DBH will be harvested, and that koala browse trees greater than 20 centimetre DBH (which cannot be eaten by koalas) will comprise the retained trees.

[48]

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

NEFA submitted that where either SSOC precondition applies, FCNSW must either refrain from carrying out the operation, or must seek an SSOC. That is because it is clear from the "context, purpose and textual construction" of condition 23.4 that where either SSOC precondition applies, FCNSW cannot proceed with forestry operations unless it has obtained SSOCs from the EPA. Where either SSOC precondition is present, condition 23.4(a) provides that FCNSW "may" submit a report to the EPA in accordance with Protocol 5. NEFA accepted that while, on its face, the word "may" appears to provide FCNSW with the discretion to seek SSOCs, if the obligation to seek SSOCs were interpreted to provide FCNSW with the "option" to proceed with forestry operations without SSOCs, it would mean that FCNSW "could conduct forestry operations that would result in a poor environmental outcome and/or that do not comply with conditions of the CIFOA". This would, in NEFA's submission, render condition 23.4 and the CIFOA itself superfluous.
In particular, NEFA submitted, it was the intention of the Ministers in "drafting" condition 23.4 "that if 'short term' site-specific variations to the operating conditions were required, the EPA was to have a central role in preparing them and enforcing them". There could be "no suggestion that it was intended to permit [FCNSW] to make up their own conditions". Further, NEFA submitted, condition 23.5 indicates a "clear intention" of the Ministers that SSOCs issued by the EPA be enforceable. It would lead to "an absurd result" if the operator, FCNSW, "could develop its own conditions that are inconsistent with the CIFOA and cannot be enforced by the regulator".
The EPA's position in this regard was submitted to be clearly articulated on various EPA webpages. For example, the webpage titled "Bushfire-affected Forestry Operations" states that the EPA "continue[s] to advocate that FCNSW obtain site-specific operating conditions in areas recovering from the 2019-20 bushfires" (see [35] to [36] above).
Further, NEFA submitted, it is also clear from Protocol 5 that where either SSOC precondition is met and FCNSW seeks to conduct relevant forestry operations, it must obtain SSOCs from the EPA in order to do so. Protocol 5 identifies in Table 1, item 6, column 1, as a restricted activity "Special provisions requiring a review or amendment to the approval at a specific site in a specific site in a specific circumstance", referring in column 2 to condition 23.4 of the approval and in column 3 to the EPA as the approval body/person. NEFA submitted that "this implies that where either SSOC precondition is met, [FCNSW] must seek approval to conduct forestry operations in a relevant operational area". Further, conditions 5.2(2) and 5.2(3) in Protocol 5 were submitted to provide "strong textual indicators" that the use of "may" in condition 23.4(a) should be interpreted to mean that FCNSW should seek SSOCs where either of the SSOC preconditions is met and FCNSW seeks to proceed with forestry operations because condition 5.2(2) provides that "FCNSW may only propose to carry out a restricted activity where there is no practical alternative", and despite condition 5.1 in Protocol 5 stating that the protocol supports various conditions of the approval that require approval, condition 5.3 "again adopts the language of condition 23.4(a)" by stating that "FCNSW may apply in accordance with this protocol for a restricted activity approval".

[49]

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

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

[50]

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

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

[51]

FCNSW's submissions in relation to Ground 3

As to NEFA's submissions in relation to Ground 3, FCNSW submitted that the submissions "squarely" frame the ground as another ground raising a question of jurisdictional fact, and that is not how the ground was pleaded in the amended summons. While the amended summons clearly identifies the alleged mandatory precondition for the purposes of Ground 1, in relation to Ground 3 the amended summons does not identify the alleged mandatory pre-condition. The shift in approach by NEFA was submitted by FCNSW to presumably "counter the proposition" put forward by FCNSW in its opening submissions that "Ground 3, properly understood, seeks civil enforcement of the CIFOA masquerading as judicial review". At the end of the first tranche of the hearing, senior counsel for FCNSW expressed his client's concern in relation to a "shifting case" as follows: Can we note, your Honour, that it is of great concern to us, because your Honour will have seen that we've criticised the - I don't say that in a critical way, but we've criticised the summons and the cases pleaded in our submissions already, and we do not want an adjournment to be an opportunity for the applicant to be able to stray from the case as currently pleaded in its summons. So we would be taking a strict approach to the case as already pleaded in the summons, and we just note that now that the time - part of the condition of us acceding to this request is that the case can't change.
I accept that there was a shift during the course of the hearing in the approach of NEFA to the way it casts Ground 3. Nonetheless, notwithstanding the change in approach, FCNSW in its written submissions addressed Ground 3 as it apprehends the ground to have been put, and sought to "cut through the voluminous submissions on the point". Put shortly, FCNSW submitted, NEFA was wrong in that the SSOC process, as referred to by NEFA, does not relate to the approval of operational plans, and that NEFA failed to establish the fourth of its propositions in relation to Ground 3.
Again, FCNSW submitted, as it had submitted in relation to the question of jurisdiction and justiciability, that the only approval of forestry operations is by the Ministers in the CIFOA (and subject to conditions). Condition 53 does not approve the carrying out of forestry operations, rather is a timing provision that relates only to when forestry operations may commence in an operational area. That is, FCNSW submitted, the operational plan must be approved prior to the commencement of forestry operations in each operational area.

[52]

Conclusions in relation to Ground 3

In relation to Ground 3, I find as follows: 1. As submitted by FCNSW, Ground 3 must fail because NEFA has failed to establish the fourth of its five propositions in relation to Ground 3, namely that the SSOC process applies to the approval of HHPs which authorise forestry operations. 2. It is true that I have found above at [179] that the Court has power to entertain an application to review the embedded decision of the FCNSW planning supervisor to approve each operational plan. However, it does not follow that there is a connection between condition 23 and condition 53 and that condition 53 relates to the process for FCNSW to seek SSOCs in specified circumstances, as submitted by FCNSW, subsequent to the grant of an approval by the Minister under Part 5B of the Forestry Act. 3. Condition 23.4 is specific. It relates to either: 1. a "specific site" at which there would be a "poor environmental outcome", being a site that is part only of the operational area otherwise the subject of the operational plan; or 2. a "specific and unique circumstance", again, a specific and unique circumstance that arises after the operational plan has authorised the commencement of forestry operations in the operational area as a whole and in all circumstances. 1. Condition 53, on the other hand, relates to the preparation by FCNSW of an operational plan for each operational area (53.1), the commencement of a forestry operation in an operation area only when an operational plan has been prepared (53.2), the documents required to be included in each operational plan (53.3), and the requirement that each operational plan (a) address the conditions of the approval, (b) contain operational requirements in sufficient detail to enable the person proposing to undertake the forestry operations to comply with the conditions of the approval, and (c) be approved and dated by a FCNSW planning supervisor (53.4). 2. I do not accept that condition 23 which contains specific conditions requiring a review of or amendment to the approval conditions restrains an exercise of the power in condition 53 to approve an operational plan and authorise the commencement of forestry operations in an operational area. It is only after an operational plan has been approved pursuant to condition 53 that a particular forestry operation at a specific site or in a specific and unique circumstance can trigger condition 23. These are distinct exercise of power. 3. Nor do I find that the two circumstances referred to in the chapeau to condition 23.4 are jurisdictional facts. Each of those circumstances, referred to by NEFA as the SSOC preconditions, involves a process of evaluation which the initial decision maker, in its original jurisdiction with the function of reviewing the decision of the repository of power, and not the court, is best placed to undertake. 4. Accordingly, Ground 3 must fail.

[53]

NEFA's submissions in relation to materiality

In relation to the threshold test of materiality, NEFA referred to the following authorities. In Hossain v Minister for Immigration and Border Protection, [56] the plurality (Kiefel CJ, Gageler and Keane J) said at [29]: 29. That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.
In MZAPC v Minister for Immigration and Border Protection, [57] the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) said at [2]: 2. Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
In Nathanson v Minister for Home Affairs, [58] the plurality (Kiefel CJ, Keane and Gleeson JJ) said at [33]: 33. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

[54]

FCNSW's submissions in relation to materiality

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

[55]

Conclusions in relation to materiality

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

[56]

Conclusions

I have earlier summarised my reasons for concluding that NEFA has standing to bring the proceedings, that it is within the power of the Court to entertain each of NEFA's three grounds of challenge, and for dismissing each of the three grounds of challenge.
In dismissing NEFA's grounds of challenge, it has been necessary to keep in mind the constraints that apply to review of an administrative decision for illegality. The role of the Court in that regard is to declare and enforce the law: Attorney General (NSW) v Quin. [59] Merits review is not permitted: Haughton at [224].
As Craig J said in Haughton at [225], the position was well summarised by Jagot J in Drake-Brockman v Minister for Planning, [60] where her Honour said (at [124]): 124. The Land and Environment Court has separate merits and judicial review functions (Pt 3 of the Land and Environment Court Act 1979 (NSW)). In its merits review function the Court makes the decision it finds correct or preferable on the evidence, weighing up for itself the competing considerations. In its judicial review function, the Court may not trespass on the merits or impugn a decision made within the necessary legal boundaries. This distinction and consequential limitation in judicial review proceedings is to be "constantly borne in mind" (Peko-Wallsend at 40-41). It follows that care must be taken in applying observations about the level or extent of assessment of issues found to be appropriate in merits appeals to other contexts. Specifically, observations made by the Court in it merits jurisdiction cannot be understood as mandating a particular outcome in judicial review proceedings. This is evident from the emphasis on the particular factual context in the outcomes apparent from those decisions. As in Haughton, it is the judicial review function that I have been required to undertake in these proceedings.

[57]

Costs

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

[58]

Orders

The Court makes the following orders: 1. The notice of motion filed by the respondent on Tuesday, 1 August 2023 is dismissed. 2. The amended summons filed by the applicant on Thursday, 7 September 2023 is dismissed. 3. Unless an application is made by either party in relation to costs within 30 days of the date of these orders, I will make no order as to costs.

[59]

Endnotes

(2011) 185 LGERA 373; [2011] NSWLEC 217 (Craig J).
(1980) 146 CLR 493 at 530 to 531; [1980] HCA 53 (Gibbs J).
(1998) 87 FCR 301 at 317; (1998) 157 ALR 443 (Beaumont J).
(1998) 81 FCR 360 at 373; (1998) 152 ALR 418 at 428 (Olney, Kiefel and Finn JJ).
(1977) 138 CLR 283 at 327 to 328; [1977] HCA 46 (Mason J).
ACF v Commonwealth at 530 (Gibbs J).
ACF v Commonwealth at 548 (Mason J).
ACF v Commonwealth at 527 (Gibbs J).
(1981) 149 CLR 27 at 42; [1981] HCA 50 (Stephen J).
(1998) 194 CLR 247 at 267; [1998] HCA 49 at [50] (Gaudron, Gummow and Kirby JJ).
(1989) 76 LGRA 200; (1989) 19 ALD 70; [1989] FCA 794 (Davies J).
ACF v Minister at 206 (Davies J); North Coast Environment Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492 at 499 and 513; (1994) 85 LGERA 270 at 278 and 293 (Sackville J).
(1994) 55 FCR 492 at 513; (1994) 85 LGERA 270 at 293 (Sackville J).
North Coast at 513 (Sackville J).
(1997) 18 WAR 126 at 134; (1997) 94 LGERA 380 (Murray J).
[2000] QSC 172 (Chesterman J) at [24].
See North Coast at 513 (Sackville J).
(2021) 395 ALR 367; (2021) 248 LGERA 28; [2021] VSCA 195 at [78] (Niall, Emerton and Kennedy JJA).
ACF v Minister at 205 (Davies J).
Mark Aronson et al, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Thomson Reuters (Professional) Australia Limited) at [14.120] p 866.
ACF v Commonwealth at 528 (Gibbs J).
ACF v Minister at 206 (Davies J).
[2022] NSWLEC 140 (Duggan J).
(2019) 238 LGERA 295; [2019] NSWCA 216 (Basten, Macfarlan and Leeming JJA).
Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2000, The Federation Press) at [1.1] p 2.
Leeming at [2.3] p 28.
Leeming at [3.1] p 48.
(2015) 89 NSWLR 268; [2015] NSWCA 158 at [11] (Basten JA, Macfarlan and Meagher JJA agreeing).
(2004) 61 NSWLR 707; [2004] NSWCA 422 at [6] (Spigelman CJ).

[60]

Amendments 20 November 2023 - Amendment to Representation section in cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2023

North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW

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Legislation Cited (19)

Cases Cited (70)

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