South East Forest Rescue Inc v Forestry Corporation of New South Wales

rkins [2014] NSWLEC 95 Gouriet v Union of Post Office Workers [1978] AC 435 Haughton v Minister for Planning and Macquarie Generation (2011) 185 LGERA 373; [2011] NSWLEC 217 Hurt v The King [2024] HCA 8 Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 Lee v New South Wales Crime Commission (2013) 251 CLR 310; [2013] HCA 39 North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492; [1994] FCA 989 North East Forest Alliance Incorporated INC1601738 v Forestry Corporation of NSW [2023] NSWLEC 124 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Phelps v Western Mining Corporation Ltd (1978) 33 FLR 327 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46 South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales (No 2) [2024] NSWLEC 36 Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516; [1995] FCA 1035 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1999) 200 CLR 591; [2000] HCA 11 VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195 Victoria v The Commonwealth and Hayden (1975) 134 CLR 338; [1975] HCA 52 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Texts Cited: A Mason, "Access to Constitutional Justice: Opening Address" (2010) 22 Bond LRev 1 Coastal Integrated Forestry Operations Approval - Conditions (commenced November 2018) Coastal Integrated Forestry Operations Approval - Protocols (September 2023) Herzfeld and Prince, Interpretation (Lawbook Co, 2nd ed, 2020) New South Wales, Parliamentary Debates, Legislative Assembly, 12 November 1998 Category: Principal judgment Parties: South East Forest Rescue Incorporated INC 98 94 030 (Appellant) Forestry Corporation of New South Wales ABN 43 141 857 613 (Respondent) Representation: Counsel: J Korman/J Farrell (Appellant) I Hemmings SC/J Taylor/K Pham (Respondent)

Solicitors: XD Law (Appellant) Norton Rose Fulbright (Respondent) File Number(s): 2024/74092 Publication restriction: Nil. Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 Date of Decision: 7 February 2024 Before: Pritchard J File Number(s): 2024/17196

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, South East Forest Rescue Incorporated (SEFR), appealed from a Land and Environment Court decision in which it was found to lack standing. This precluded SEFR from bringing civil enforcement proceedings by which it sought to restrain the respondent, the Forestry Corporation of NSW, from conducting certain forestry operations unless steps were taken to minimise the effects of those operations on three species of glider: the Southern Greater Glider, Yellow-bellied Glider, and Squirrel Glider. Although the primary judge considered common law standing was not, as the respondent contended, ousted by the applicable statutory scheme, her Honour found SEFR did not have a "special interest" in the subject matter and thus lacked standing. This was because: it sought relief in relation to operations outside its usual geographical area of concern; it was deemed to be formed for the basis of ending native logging, not the protection of gliders; the evidence was unclear as to the nature, activities, knowledge and experience of its members in their pursuit of SEFR's objects; and its concern for gliders was deemed only to have been recently manifested. On appeal, the issues for determination were whether: (i) on the proper construction of ss 69SB and 69ZA of the Forestry Act 2012 (NSW) and ss 13.14 and 13.14A of the Biodiversity Conservation Act 2016 (NSW), private persons or entities are precluded from bringing civil enforcement proceedings; (ii) the Court below had the power to dismiss the proceeding on the ground that the appellant did not have standing; (iii) the appellant was denied procedural fairness and ought to have been allowed to adduce further evidence as to standing before the substantive proceeding was determined; and (iv) in any event, the primary judge erred in determining the appellant did not have standing. The Court (Griffiths AJA, Adamson JA and Basten AJA agreeing) held, allowing the appeal: As to issue (i): (1) Clearer language is required to oust common law standing than that used in the subject provisions; the courts should not impute an intention to the legislature to abrogate or curtail fundamental rights other than by a law expressed with "irresistible clearness": [1] (Adamson JA); [2] (Basten AJA); [116]-[118] (Griffiths AJA). The provisions thus do not preclude private persons or entities from bringing civil enforcement proceedings in relation to integrated forestry operations: [1] (Adamson JA); [24]-[30] (Basten AJA); [119] (Griffiths AJA). As to issues (ii) and (iii): (2) The success of the appeal on the issue of standing obviated the need to determine these issues: [1] (Adamson JA); [2] (Basten AJA); [50] (Griffiths AJA). As to issue (iv): (3) Common law standing may, in the absence of some private right or special damage, be demonstrated by a "special interest": [1] (Adamson JA); [34]-[35] (Basten AJA); [123] (Griffiths AJA). The sufficiency of particular steps or activities that can demonstrate a special interest are fact and context specific: [1] (Adamson JA); [87] (Griffiths AJA). Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50; Australian Conservation Foundation v Minister for Resources [1989] FCA 794; (1989) 76 LGRA 200; North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492; [1994] FCA 989; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516; [1995] FCA 1035; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49; Animals' Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173; Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46; VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195; Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1, considered. (4) The appellant has a sufficient special interest in circumstances where it had an approximate 20-year history of taking active steps and concrete action in relation to its beliefs and concerns, namely a deep concern regarding logging and its effects on the welfare of forest-dependent threatened species, including the Greater Glider: [1] (Adamson JA); [46] (Basten AJA); [148]-[175] Griffiths AJA.

JUDGMENT

1. ADAMSON JA: I agree with Griffiths AJA.
2. BASTEN AJA: I agree with the orders proposed by Griffiths AJA and with his reasons. The following observations are not intended to be inconsistent with those reasons, but to supplement them.
3. On one view, to address standing at the outset of a proceeding may be premature where standing depends on the statutory context of the applicant's claim, the nature of the relief sought and the nature of the applicant's activities in relation to such matters. At least it is desirable to have a clear view of each of those matters.

Statutory scheme

1. It is convenient to start with the basis of the claims. Determining who may have authority to bring proceedings in a court to enforce duties or obligations imposed by statute on a public authority requires consideration of both judge-made law and statute. Where the obligations or duties arise under statute, the statute is the proper starting place for consideration.
2. There are three statutes having potential relevance in the present case. Their interaction is central to the first question to be addressed, being that raised by the respondent by way of a notice of contention.
3. The respondent in these proceedings, the Forestry Corporation of New South Wales, was constituted by s 5 of the Forestry Act 2012 (NSW). It is a statutory State-owned corporation. The principal functions of the Forestry Corporation are to carry out or authorise the carrying out of forestry operations (s 11). The term "forestry operations" is defined to mean a range of activities including "logging operations, namely, the cutting and removal of timber from land for the purpose of timber production": s 3(1).

Environmental Planning and Assessment Act 1979

1. The nature of forestry operations is such that they involve a use of land within the definition of "development" in s 1.4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act). Under that Act, development may be permitted without consent, may be permitted with consent, or may be prohibited. The relevant characterisation will be provided by an "environmental planning instrument". However, these aspects of the Planning Act are disapplied by s 69W of the Forestry Act in relation to forestry operations which are subject to an "integrated forestry operations approval": s 69W(1) and (2). Accordingly, so long as there is such an approval in force and the approval is not itself subject to legal challenge, there will be no basis to allege a breach of the Planning Act, and the open-standing provision in s 9.45 of that Act will not be engaged.

Biodiversity Conservation Act 2016

1. A second statutory regime of potential application is the Biodiversity Conservation Act 2016 (NSW) (Biodiversity Act). That Act contains a number of prohibitions against harm to, or destruction of, various areas, animals and plants, including "ecological communities", having recognised conservation value. In particular, the Biodiversity Act defines "protected animals" as including animals of "a threatened species or threatened ecological community": s 11.29. The Act contains a process for listing threatened species. [1] Schedule 1 to the Biodiversity Act is headed "threatened species" and lists various animals and plants under three categories, being (i) critically endangered, (ii) endangered and (iii) vulnerable. The Southern Greater Glider is listed as endangered; the Yellow-bellied Glider and the Squirrel Glider are listed as vulnerable. [2] Part 4, Div 5 of the Biodiversity Act provides for the listing of "threatening processes" if a process is one which "adversely affects threatened species or ecological communities": s 4.32(1). Part 7 deals with biodiversity assessment and approvals under the Planning Act, in particular, the preparation of "species impact statements".
2. Part 11 of the Biodiversity Act provides for "Regulatory compliance mechanisms". In particular, Div 3 provides for "Interim protection orders". Section 11.9 provides that the Minister may make an interim protection order in respect of an area of land where there has been a recommendation to that effect from the Environment Agency Head. The Environment Agency Head may make such a recommendation on a number of grounds, including "… the habitat of a threatened species or ecological community": s 11.8(1)(c).
3. Part 13, Div 1 of the Biodiversity Act provides for criminal proceedings with respect to offences under the Act. Authority to take such proceedings is limited to a police officer, the Environment Agency Head, or a person authorised by the latter. [3] Criminal offences include harming or threatening to harm an animal of a threatened species (s 2.1) and damaging the habitat of a threatened species, knowing it to be the habitat of a threatened species (s 2.4). If the activity is unlawful the onus of proving knowledge is reversed: s 2.4(2).
4. Section 2.8 provides a defence in the following circumstances: 2.8 Acts authorised under other legislation etc (1) It is a defence to a prosecution for an offence under Division 1 if the person charged establishes any of the following in relation to the act that constitutes the offence- … (h) Forestry operations authorisation The act was- (i) the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies, being a forestry operation that is carried out in accordance with the approval ….

Forestry Act 2012

1. It is convenient to turn next to the terms of the Forestry Act, which provides in Pt 4 a general prohibition on the unlawful taking of timber from Crown-timber land and from any State forest or flora reserve: s 38(1). There is an exception with respect to timber taken pursuant to a "licence issued by the Corporation under this Act". [4] Similarly, the prohibition does not apply in relation to forestry operations carried out by or on behalf of the respondent: s 38(4).
2. One form of authority is an "integrated forestry operations approval" granted pursuant to Pt 5B of the Forestry Act. Such an approval can be given for forestry operations in State forests or other Crown-timber lands: s 69K(1). The purpose is stated in s 69L in the following terms: 69L Purpose of integrated forestry operations approvals (1) The purpose of this Part is to provide a framework for forestry operations to which this Part applies - (a) that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and (b) that integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994. (2) In this section - principles of ecologically sustainable forest management means the following - (a) maintaining forest values for future and present generations, including - (i) forest biological diversity, and (ii) the productive capacity and sustainability of forest ecosystems, and (iii) the health and vitality of native forest ecosystems, and (iv) soil and water quality, and (v) the contribution of native forests to global geochemical cycles, and (vi) the long term social and economic benefits of native forests, and (vii) natural heritage values, (b) ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations, (c) providing incentives for voluntary compliance, capacity building and adoption of best-practice standards, (d) applying best-available knowledge and adaptive management processes to deliver best-practice forest management, (e) applying the precautionary principle (as referred to in section 6(2)(a) of the Protection of the Environment Administration Act 1991) in preventing environmental harm.

Contention - Disapplication of open standing provisions

1. The notice of contention filed by the respondent challenged the primary judge's rejection of its submission that no person other than one of those identified in s 69ZA(3) has power to "institute proceedings in a court to remedy or restrain a breach" of Pt 5B of the Forestry Act. In essence, the contention relied upon the fact that s 69SB(1) confers on the EPA a function of enforcing the requirements of an integrated forestry operations approval, which the respondent contended was exclusive. However, this contention must be rejected for a number of reasons.
2. First, as the respondent conceded, s 69SB(1) contains no express reference to the power of "any person" to enforce compliance with the requirements of an approval. The conferral of power on the EPA might be thought a standard means of conferring on a public authority a function which, if not exclusively dependent on statute, should be clearly stated by the statute. The intention to do so is self-evident. That s 69SB(1) was not intended to confer exclusive authority is apparent from the other provision upon which the respondent relies, namely s 69ZA(3). That section assumes that other persons, including "a Minister", a member of the staff of the EPA and, in certain circumstances, another government agency or official, may be able take enforcement proceedings. Section 69ZA(3) does not state that they have such powers, but merely states that the section does not apply to them. If exclusive power had been conferred on the EPA, that provision would be otiose.
3. Secondly, s 69ZA(1) only applies to identified statutory provisions: it says nothing about the powers of persons to enforce proceedings which may arise absent a statutory conferral of a right. Thus, in effect, the respondent seeks to insert in s 69ZA(1)(b), after "a provision of an Act", the words "or the general law". That inclusion by way of implication cannot easily be justified, nor did the respondent seek to do so; rather it took issue with the primary judge's reliance on the principle of legality to conclude that standing under general law principles had not been excluded by implication.
4. There may be some force in the proposition, accepted by the primary judge, that the absence of an intention to exclude rights under the general law is supported by that principle of statutory interpretation known as the principle of legality. That principle supports the proposition that there should be a clear statutory expression of "an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom" or "fundamental rights". [6] However, where there is a complex statutory scheme, the identification of statutory purpose and intention is best derived from the legislation itself. [7]

Principles of general law standing

1. The principles by which the courts determine standing in public law matters have given rise over the years to disparate views and a fear that findings in individual cases are difficult to reconcile. There may be some truth in the latter concern, but the correct approach for judges of an intermediate court of appeal is to address the nature of the statutory scheme which has given rise to the subject matter of the proceeding, and the purpose of limiting access to the courts by persons or bodies seeking to ensure compliance with the limits and conditions constraining the exercise of executive powers.
2. The enforcement of public duties was once thought to be a monopoly of the Attorney-General, so that any private individual seeking to take that role required the permission or "fiat" of the Attorney. [10] That view has long since been abandoned in Australia. In Victoria v The Commonwealth and Hayden [11] Gibbs J tartly observed, "I would, in Australia, think it somewhat visionary to suppose that the citizens of a State could confidently rely upon the Commonwealth to protect them against unconstitutional action for which the Commonwealth itself was responsible". To similar effect, Sir Anthony Mason observed, extrajudicially, that Attorneys-General are "not independent of government and cannot be expected to act impartially in deciding whether proceedings should be brought against the government". [12] In relation to a New South Wales regulatory statute, [13] Craig J observed in Haughton v Minister for Planning and Macquarie Generation [14] that "the 'gatekeeper' for the taking of any proceedings is the very Minister whose actions are sought to be impugned as being beyond power". As will be noted, that last observation has resonance in the present case.
3. It is unsurprising, therefore, that the law permits other persons to commence proceedings to enforce statutory obligations of public authorities, whether by orders in the nature of the former prerogative writs, or by way of equitable relief, and particularly an injunction.
4. The test now accepted as identifying the criterion for a person to commence proceedings in accordance with the general law is variously described as the existence of "special damage", a "special interest" or a "sufficient interest". Each of these phrases involves a level of imprecision. The underlying purpose for such a criterion has been identified in different ways.

Application of principles

1. In applying the rules of standing as a threshold criterion to be satisfied in relation to the present proceedings, it is appropriate to assume that the applicant's contentions as to breaches of the provisions of the Forestry Act and the conditions pursuant to which forestry operations are being undertaken by the respondent, are justifiable. Further, it should be assumed that relief of the kind sought by the applicant is available. In those circumstances, the consequences of not permitting the application to proceed must be appreciated. The principal consequence would be to render unenforceable, in practical terms, an extensive scheme regulating forestry operations so that they do not override the conservation of biodiversity, not in the abstract, but by reference to particular species and particular conduct. The scheme is the product of two Ministers acting together. The statute places enforcement of that detailed regulatory scheme in the hands of the EPA, but in practical terms it is unrealistic to expect that the authority administered by one minister to take curial proceedings against the authority administered by the other minister. Further, if the substance of the claim were that the EPA had failed in its statutory obligation to monitor compliance by the Forestry Corporation, or to investigate complaints in the exercise of its functions, it would in effect by required to sue itself.
2. The question as to whether forestry operations should be curtailed in the face of threatened harm to an endangered species such as the Southern Greater Glider is not in issue in this proceeding. That question has been resolved by the statutory scheme under which forestry operations take effect. However, the application of that condition in particular areas and in particular circumstances, which is the subject matter of the proceeding, is not a matter in which members of the public generally have any special interest, expertise, or ability to monitor forestry operations. For the reasons explained by Griffiths AJA, the applicant, through its committed membership, is not only able to undertake those functions, but has demonstrated a willingness to do so over several years. There can be no doubt that it satisfies the requisite criterion for standing to bring these proceedings.
3. GRIFFITHS AJA: A central issue in this proceeding, which is raised by ground 3 of the notice of appeal, is whether the primary judge erred in concluding that the appellant lacked standing to bring civil enforcement proceedings in relation to particular integrated forestry operations being carried out by the respondent under Pt 5B of the Forestry Act 2012 (NSW) (Forestry Act). Her Honour found that the appellant lacked standing in the proceedings below in which the appellant sought inter alia to restrain the respondent from conducting any forestry operations in specified compartments in several State forests unless certain steps were taken to prevent or minimise the effects of such logging on various species of gliders. These species are the Southern Greater Glider (Petauroides volans) (Greater Glider), the Yellow-bellied Glider (Petaurus australis) and the Squirrel Glider (Petaurus norfolcensis).

The statutory framework for NSW forestry operations

1. There were significant reforms in 2018 relating to the conduct and regulation of forestry operations in the State. These reforms were introduced by amendments to the Forestry Act in the Forestry Legislation Amendment Act 2018 (NSW). The provisions of Pt 5B of the Forestry Act included in this analysis were either amended or introduced by this amending Act. It will be necessary to refer later (see at [106] below) to other provisions in both the Forestry Act (which were also either introduced or amended as part of these reforms) and the Biodiversity Conservation Act 2016 (NSW) (BC Act) which are relevant to the notice of contention.
2. Part 5B of the Forestry Act contains provisions relating to the making, application and enforcement of approvals for forestry operations in State forests or other Crown-timber lands (see s 69K(1)).
3. The expression "forestry operations" is defined in s 3 of the Forestry Act as meaning: (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.
4. One of the principal functions of the respondent (which is a corporation established by s 5 of the Forestry Act) is 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 respondent. Approvals to carry out forestry operations are granted by the designated Ministers under s 69N of the Forestry Act.
5. The purpose of Pt 5B is stated in s 69L(1): 69L Purpose of integrated forestry operations approvals (1) The purpose of this Part is to provide a framework for forestry operations to which this Part applies - (a) that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and (b) integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.

Site specific biodiversity conditions

1. Condition 21.5 and Protocol 31.3 provide for the EPA to make "site-specific biodiversity conditions" (SSBCs).
2. On 31 January 2024, the EPA amended Protocol 31 of the CIFOA (which makes provision for flora species and endangered populations protected by the application of species-specific conditions), so as to add the Greater Glider.
3. On 16 February 2024, the EPA issued SSBCs for the Greater Glider in the CIFOA region (the new SSBCs). Additional requirements were imposed in relation to glider habitat retention and the way in which broad area habitat searches are to be carried out. More glider trees are required to be permanently retained (Conditions 6 and 7). Condition 14 now requires each search and survery to be carried out in accordance with quite detailed provisions relating to such matters as the timing and circumstances in which the surveys are to be conducted.
4. It is common ground that, under transitional provisions, the respondent is not obliged to comply with the new SSBCs in respect of compartments where forestry operations were commenced prior to 16 February 2024 and where it has conducted a broad area habitat search as required by Condition 57.2.
5. I will now briefly describe some procedural issues in the LEC proceedings below.

Some procedural matters in the LEC proceedings highlighted

1. The proceedings below have a complex and complicated history, as is reflected in the primary judge's comprehensive description of it at PJ[1] to [36]. It is unnecessary to repeat that description but I will highlight some selected matters which involve events that are relevant to the appeal.
2. On 15 January 2024 (i.e., during the Court's vacation period), the appellant filed a summons in the LEC's Class 4 jurisdiction bringing civil enforcement proceedings against the respondent. (The LEC has jurisdiction under s 20(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) to enforce any obligation, right or duty imposed by a planning or environment law, in circumstances where a "planning or environment law" is defined in s 20(3) to include Pt 5B of the Forestry Act). Injunctive and declaratory relief were sought concerning the respondent's forestry operations in all areas covered by the CIFOA. The appellant claimed that the respondent was unlawfully failing to look for, identify and record trees containing evidence of the three subject glider species, in breach of Condition 57 of the CIFOA. It also claimed that the respondent failed to protect glider den trees with a 50 metre exclusion zone, in breach of Condition 76.
3. On the same day, the appellant filed a notice of motion seeking urgent interlocutory injunctive relief to restrain the respondent from conducting forestry operations in specified State forest compartments covered by the CIFOA (where the Greater Glider and Yellow-bellied Glider had recently been detected) until effective den tree surveys were conducted by or on behalf of the respondent. Both lay and expert evidence was filed by the appellant which was intended to demonstrate, on a prima facie basis, that it had a "special interest" in the subject matter of the proceeding and that the respondent was breaching Conditions 57.2 and 76.1.
4. The notice of motion was listed for mention before the primary judge on 23 January 2024. Before then, on 19 January 2024, the appellant served a proposed amended notice of motion which removed certain compartments from the motion filed on 15 January 2024, and also sought to add some additional compartments which were within the CIFOA. The primary judge granted leave for the appellant to remove some compartments where forestry operations had ceased, but refused leave to add any additional compartments (the amended notice of motion). This motion sought urgent interim injunctive relief in respect of 13 compartments in three of the four subregions covered by the CIFOA.

The primary judge's reasons for judgment dated 7 February 2024 summarised

1. The primary judge identified the following four issues relating to standing which required resolution: 1. Did common law standing principles apply to the appellant's civil enforcement proceedings, notwithstanding the restrictive standing provisions in ss 69SB and 69ZA of the Forestry Act and ss 13.3, 13.14 and 13.14A of the BC Act? 2. Whether determination of the appellant's standing to seek the relief sought in the amended notice of motion ought to be determined as a final matter or, rather, on a prima facie basis. 3. If common law standing requirements applied, had the appellant established that it had a special interest in the subject matter of the proceedings? 4. If the appellant had standing, should the Court grant the urgent interlocutory relief sought by it?
2. I will now summarise the primary judge's reasons in relation to each of these issues.

(a) Did common law standing principles apply to the appellant's civil enforcement proceedings, notwithstanding the restrictive standing provisions in ss 69SB and 69ZA of the Forestry Act and ss 13.3, 13.14 and 13.14A of the BC Act?

1. Her Honour noted at PJ[114] that whilst it had been determined in North East Forest Alliance Incorporated INC1601738 v Forestry Corporation of NSW [2023] NSWLEC 124 that, notwithstanding s 69ZA of the Forestry Act, common law standing can exist to bring judicial review proceedings, there was no decision of a NSW court concerning the availability of common law standing to bring civil enforcement proceedings to enforce the requirements of an integrated operations approval.
2. After summarising the parties' respective submissions on the effect of provisions such as ss 69SB and 69ZA of the Forestry Act and ss 13.3, 13.14 and 13.14A of the BC Act and the "principle of legality" (which her Honour identified as not imputing to the legislature an intention to interfere with fundamental rights unless such an intention is clearly manifested), the primary judge concluded at PJ[128] that s 69ZA did not have the effect of ousting common law standing in proceedings to enforce the requirements of an integrated forestry operations approval to which Pt 5B of the Forestry Act applied (these provisions are considered from [105] below). Her Honour concluded that: "128 …having regard to the purpose of the Forestry Act, the context of ss 69SB and 69ZA, the plain language of those provisions and that of the cognate provisions in ss 13.3, 13.14 and 13.14A of the BC Act, and the principle of legality (namely, that the courts should not impute to the legislature an intention to interfere with fundamental rights unless such an intention is clearly manifested by unmistakable and unambiguous language), the Court is satisfied that, on its proper construction, s 69ZA does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies. A private person or entity with a special interest in the subject matter of the proceedings seeking to enforce a public right or prevent a public wrong may have standing at common law to bring proceedings to enforce compliance with an integrated forestry operations approval."
3. The correctness of this conclusion and reasoning is challenged by the respondent's notice of contention.

(b) Whether determination of the appellant's standing to seek the relief sought in the amended notice of motion ought to be determined as a final matter or, rather, on a prima facie basis

1. After referring to several relevant authorities (including Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 (ACF - HCA); Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46; Environment East Gippsland Inc v VicForests [2009] VSC 386; Binginwarri Friends of Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 507 and Binginwarri Friends of Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824), her Honour concluded that it was appropriate in the exercise of discretion to decide the question of standing as a preliminary matter, rather than await the determination of the merits, for reasons which are set out at PJ[106].
2. It is convenient to reiterate here that, after concluding at PJ[176] that the appellant had not established, even on a prima facie basis, that it had a sufficient special interest to bring the proceeding, the following day (i.e., 8 February 2024), and as requested by the respondent, her Honour made orders which not only dismissed the second notice of motion but also dismissed the proceeding generally. Grounds 1 and 2 of the notice of appeal challenge these orders, but need not be determined (see at [50] above).

(c) If common law standing requirements applied, had the appellant established that it had a special interest in the subject matter of the proceedings?

1. Her Honour noted the following matters which the appellant relied upon as demonstrating that it had common law standing: "131 SEFR submitted that its 'comprehensive evidence', namely, the evidence of Mr Daines, establishes a 'history of over 20 years' intensive activity' directed towards its public purpose. SEFR's activities include: (1) initiation of protests and community engagement activities; (2) conducting forest audits and reporting potential contraventions of forest laws to the relevant authorities; (3) conducting litigation on four earlier occasions; (4) advocacy through the media; (5) lobbying, public education; (6) preparing and publishing reports concerning management of NSW forests; and (7) making submissions in response to public consultation opportunities relating to forestry operations and management and conservation of native forests."
2. Her Honour also noted evidence concerning public recognition of the appellant's role in the protection of public forests, including the appellant's representatives sitting on a committee established by the Resource and Conservation Assessment Council of the Department of Premier and Cabinet in 2003; receiving an excellence grant for outstanding environment protection work from the Robyn Stellar Foundation in 2007; and two of the appellant's executive members being awarded the Bob Brown Environmentalist of the Year in 2019 "for recognition of work on behalf of [the appellant] for the protection of forests and action on climate change during the past 20 years". Her Honour further noted the evidence that the appellant had conducted spotlight surveys for Greater Gliders and submitted reports of identified glider den trees to the EPA.
3. Her Honour summarised the respondent's submissions as to why it contended that the appellant lacked the requisite "special interest" in the subject matter of the proceeding. This included the submission that, while the appellant may have a general interest in NSW forests, that was insufficient, particularly where the compartments the subject of the proceedings were not within the region it described as the "South East Forests of NSW", to which the appellant's name relates (i.e., broadly the Southern and Eden subregions). Moreover, the respondent submitted that the appellant's evidence failed to demonstrate any connection with the subject matter of the proceedings, being glider den trees and broad area habitat searches.

(d) If the appellant had standing, should the Court grant the urgent interlocutory relief sought by it?

1. Having regard to her Honour's conclusion that the appellant lacked standing, even on a prima facie basis, this issue did not strictly arise. For completeness, however, her Honour explained why she did not consider that there was a serious question to be tried, or an arguable case. On the balance of convenience, however, her Honour considered that the expert evidence concerning irreparable harm outweighed the appellant's delay in seeking interlocutory relief.

The appeal and notice of contention

1. The appeal (which is brought under s 58 of the LEC Act), challenges the orders dated 8 February 2024, including an order that the substantive proceeding be dismissed. It should be noted that the appellant discontinued an application for leave to appeal in respect of the orders dated 7 February 2024. It was common ground, however, that the primary judge's reasons for judgment dated 7 February 2024 also informed the orders made the following day.
2. As noted at [50] above, it is sufficient to focus on ground 3, which is directed to the central question whether the appellant has standing to bring the proceeding.
3. The respondent filed a notice of contention claiming that common law standing to bring civil enforcement proceedings in relation to forestry operations conducted under the CIFOA was ousted by the statutory scheme manifested in particular in ss 69SB and 69ZA of the Forestry Act and ss 13.14 and 13.14A of the BC Act.

(a) Notice of contention

1. It is convenient first to address the notice of contention. For the following reasons, the primary judge did not err in concluding that common law standing principles apply to the proceedings. (I should clarify that the references to "common law standing" are intended to include standing to seek equitable remedies in a public law context).
2. In brief, the respondent contended that the effect of the statutory scheme, comprising relevant provisions of the Forestry Act and BC Act, constitute a code which precludes common law standing and limits the enforcement of the CIFOA to the entities identified in sub-ss 69ZA(3)(a) to (c) of the Forestry Act, namely the EPA, the Minister or other relevant government agencies (see at [108] below).
3. The primary provisions relied upon by the respondent in support of its notice of contention are as follows: 69SB Enforcement functions of EPA (1) The Environment Protection Authority has the function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of integrated forestry operations approvals. (2) The Biodiversity Convention Act 2016 contains provisions relating to the enforcement of this Part, and accordingly - (a) functions under Part 6 of this Act (Investigations and enforcement powers) are not exercisable in relation to any matter arising under this Part, and (b) proceedings for an offence against this Part or the regulations under this Part cannot be instituted under Part 7 of this Act (Criminal proceedings and related matters) and that Part does not apply to any such alleged offence. Note - This Part (in addition to Parts 5A and 5B of the Local Land Services Act 2013) is native vegetation legislation (and offences under this Part are native vegetation offences) for the purposes of the Biodiversity Conservation Act 2016. Accordingly, the following provisions of that Act apply (to the extent specified in those provisions) to the enforcement of this Part - (a) Part 11 (Regulatory compliance mechanisms), except Division 3, (b) Part 12 (Investigation powers), (c) Part 13 (Criminal and civil proceedings), (d) Section 14.7A (Provisions relating to regulation or enforcement of native vegetation legislation). See also section 13.14A of the Biodiversity Conservation Act 2016. (3) In this section - enforcing compliance includes instituting criminal or civil proceedings. monitoring includes investigating and reporting.

(b) Ground 3 of the appeal and the appellant's standing

1. This aspect of the appeal does not turn on any significant dispute as to the content of the relevant legal principles concerning common law standing, but rather on their application to the particular facts and circumstances. Many of the relevant legal principles are identified in two recent intermediate appellate court decisions, namely VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195 and Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1.
2. The following summary of the relevant legal principles draws heavily on Kinglake (many of which were relied upon in Blue Derby). I will describe from [142] below how the application of the principles in the particular circumstances of those two appeals produced different outcomes on the question of standing. This serves to highlight that the application of the principles is very much fact and context specific (a point which is illustrated by other cases which I will briefly outline in the following analysis).

(i) Some legal principles on common law standing summarised

1. I will now describe some of the relevant legal principles concerning common law standing and make some additional observations.
2. An applicant who attempts to bring civil enforcement proceedings seeking declaratory and/or injunctive relief in respect of unlawful conduct and does not rely on a private right or special damage to establish standing must demonstrate a "special interest" in the subject matter of the proceeding. As expressed in Kinglake at [21], standing in the context of public law "depends on the nature and extent of the relationship between the plaintiff and the subject matter of the litigation".
3. This raises the question of the level of abstraction with which the subject matter of the proceeding should be identified (see Kinglake at [22]). In an environmental context, for example, is it sufficient for the applicant to demonstrate that it has an interest in the protection and preservation of the environment generally or must its interest be associated with the particular decision or conduct which is the subject of the proceeding?
4. Putting to one side cases where the Court is exercising a statutory jurisdiction (which may have an open standing provision or some other statutorily expressed formula for standing) and cases involving what were once described as the prerogative writs (which have their own particular and variable standing rules), the common law standing test based on the need to demonstrate a "special interest" in the subject matter of the proceeding focuses on the relative position of the applicant when compared with the broader population (see Kinglake at [29]).
5. The "special interest" test is not confined to proprietary, business or economic interests. But a "mere emotional or intellectual concern" is insufficient unless the applicant demonstrates that it has taken sufficient, concrete or active steps to effectuate the particular concern (see Kinglake at [76]). The need for the interest to be special or different from those held by ordinary members of the public "is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation" (see Kinglake at [60(d)]).
6. There may be more than one doctrinal underpinning for the requirement of standing in the context of a public law proceeding. Those underpinnings may vary depending upon the particular relief or remedy which is sought. At both a federal and state level, it is important, however, to acknowledge the role of standing in confining the exercise of judicial power to its proper limits (see, for example, Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 at [37] per Gaudron, Gummow and Kirby JJ, who identified as a general consideration that the principles by which standing is assessed are concerned to mark out the boundaries of judicial power, whether in federal jurisdiction or otherwise). Essentially the same point was made by the plurality (Crennan, Kiefel, Gageler and Keane JJ) in Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 (footnotes omitted): "184 The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect 'the legal situation of persons subject to the jurisdiction of the court' serves to maintain the ordinary characteristics of judicial power. 185 It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff's sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law. Any person actually in jeopardy of punishment under these laws will have standing to challenge their validity."

(ii) Why the appellant has standing in this proceeding

1. The application of the relevant legal principles to a particular case necessarily requires an evaluative judgment as to whether a party has standing, however, the issue is not one of discretion. Neither party suggested that the appellate standard of review in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 did not apply.
2. For the following reasons, and with great respect to the primary judge (who was under considerable pressure promptly to publish her reasons for judgment concerning the appellant's applications for urgent interlocutory relief which were filed and progressed during the LEC's vacation period), I shall now explain why I consider that the appellant has standing (with particular reference to the evidence in two affidavits by Mr Scott Daines, who is the appellant's Public Officer and President).
3. First, SEFR was founded in 2001 and was incorporated in September 2010. In its application for incorporation, the appellant identified its objects and purposes as follows: "(a) carry out research, auditing and surveys of State forests and Forests NSW native forest logging operations. (b) this auditing involves documenting breaches of the Regional Forest Agreements, Integrated Forestry Operations Approvals, Threatened Species Licences and Environment Protection Licences and other non-licence conditions by Forests NSW and logging contractors. These reports will then be sent to the relevant regulators. (c) produce newsletters, articles and other written information about the environment of NSW. (d) make submissions to Government. (e) represent on Committees established by Government and community. (f) conduct guided walking tours of State forest. (g) conduct training and field days."
4. The application for incorporation also included a vision statement (a modified version of which currently appears on the appellant's website), both of which state that the appellant takes "…a firm stand on environmental protection of the native forest estate and acts with deep concern for the welfare of forest-dependent threatened species and the cumulative impacts of industrial degradation of native forests that are exacerbating extinction rates…". (Emphasis added.)
5. The reference to the appellant's "deep concern for the welfare of forest-dependent threatened species" is particularly significant having regard to the threatened status of Greater Gliders.

Conclusion

1. Having regard to all these matters, I am satisfied that the appellant has a sufficient special interest in the subject matter of these proceedings because the evidence adequately demonstrates that: 1. its interest is more than a mere intellectual or emotional concern for the preservation of the environment; 2. its interest goes beyond that of members of the public generally in upholding the law; 3. its interest involves more than genuinely held convictions; and 4. it has taken sufficient active and concrete steps to give effect to its interest and concerns.
2. For all these reasons, I propose that the appeal be allowed, with costs. Order 1 of the orders dated 8 February 2024 should be set aside. No party has sought to challenge the order dated 15 April 2024 that there be no order as to costs of the proceedings below.
3. In circumstances where the substantive proceedings identified in the summons filed on 15 January 2024 remain to be heard and determined, it is a matter for the Chief Judge of the LEC to determine to whom the matter should be allocated.

Endnotes

1. Biodiversity Act, Pt 4, Div 3.
2. In certain areas, the latter two are also listed as endangered.
3. The term "Environment Agency Head" is defined to mean the Chief Executive of the Office of Environment and Heritage: s 1.6.
4. Forestry Act, s 38(3)(a)(i), and definition of "licence" in s 3(1).
5. Section 69ZA also applies to certain provisions under the Protection of the Environment Operations Act 1997 (NSW) which are not presently relevant.
6. Coco v The Queen (1994) 179 CLR 427 at 437-438; [1994] HCA 15 (Mason CJ, Brennan, Gaudron, McHugh JJ).
7. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [34] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), [58]-[60] (Gageler J).
8. Probuild at [56] (Gageler J).
9. New South Wales, Parliamentary Debates, Legislative Assembly, 12 November 1998, p 9924.
10. See eg Gouriet v Union of Post Office Workers [1978] AC 435, 481 (Lord Wilberforce).
11. (1975) 134 CLR 338 at 383; [1975] HCA 52.
12. A Mason, "Access to Constitutional Justice: Opening Address" (2010) 22 Bond LRev 1 at 2.
13. Planning Act, s 75T (as then in force).
14. (2011) 185 LGERA 373; [2011] NSWLEC 217 at [73].
15. [1903] 1 Ch 109, 114.
16. (1998) 194 CLR 247; [1998] HCA 49 at [94], [96].
17. (1980) 146 CLR 493, 530 (Gibbs J); [1980] HCA 53.
18. (1995) 183 CLR 552, 558; [1995] HCA 11.
19. (1981) 149 CLR 27 at 41-42; [1981] HCA 50.
20. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [86] (McHugh J); see also Truth About Motorways (infra, fn 23) at [132]-[133] (Kirby J).
21. Onus at 35 (Gibbs CJ).
22. (1978) 33 FLR 327 at 333-334.
23. (1999) 200 CLR 591; [2000] HCA 11 at [71]; see also at [2] (Gleeson CJ and McHugh J).
24. Bateman's Bay at [39].
25. See the historical analysis of Gummow J at [88]-[100].
26. See Australian Conservation Foundation at 551 (Mason J).
27. Onus at 42 (Stephen J).
28. Onus at 73; Bateman's Bay at [46].