Forestry, Clearing Vegetation & Trees
EDO NSW has assisted communities throughout NSW in their efforts to protect forests from unsustainable logging and to protect native vegetation from inappropriate clearing.
NCC vs Minister for Primary Industries and Another
The Nature Conservation Council of NSW, represented by EDO NSW, commenced proceedings in November 2017 in the Land and Environment Court to challenge the decision of the Minister for Primary Industries to make the Land Management (Native Vegetation) Code 2017 (the Code) under the Local Land Services Act 2013 (NSW).
The decision to make the Code was made against the backdrop of the NSW Government’s 2016 biodiversity and land clearing reforms, which saw the introduction of, amongst other things, the Biodiversity Conservation Act 2016 (NSW) and the Local Land Services Amendment Act 2016 (NSW). The Local Land Services Amendment Act amended the Local Land Services Act 2013 and inserted a provision which allowed the Minister for Primary Industries to make the Code. The Code purportedly came into force on 25 August 2017, and allows landholders to carry out significant amounts of self-assessed clearing of native vegetation without further approval or environmental assessment. The Code was intended to be released with native vegetation regulatory maps to assist landholders to identify where clearing of native vegetation on rural land can and cannot occur, however the release of these maps is significantly delayed and landholders are required to self-assess whether the Code applies to their land.
Koala and joey. Photo from Wikimedia (Benjamint444).
The Nature Conservation Council of NSW is arguing that the Code is invalid because the Minister for Primary Industries did not obtain the agreement of the Minister for the Environment before the Code was made, and that both the Minister for Primary Industries and the Minister for the Environment failed to have regard to certain principles of ecologically sustainable development, including the precautionary principle, inter-generational equity and the conservation of biological diversity and ecological integrity, when making, or giving concurrence to, the Code.
Section 60T of the Local Land Services Act, under which the Code is made, makes it a requirement for the Minister for Primary Industries to obtain the concurrence of the Minister for the Environment before making the Code, and places a positive obligation upon both Ministers to have regard to the principles of ecologically sustainable development.
Proper consideration of the principles of ecologically sustainable development is particularly important in this case for the following reasons:
- clearing of native vegetation is listed by the NSW Scientific Committee as a Key Threatening Process under the Biodiversity Conservation Act 2016, yet the Code allows self-assessed broadscale clearing across NSW in the absence of any assessment of the likely cumulative impact of clearing under the Code on biodiversity or land or water resources;
- there is a lack of full scientific certainty about the effect of the Code in the absence of native vegetation regulatory maps;
- the Code switches off requirements to carry out environmental assessments for clearing; and
- the Code provides a defence to offences under the Biodiversity Conservation Act 2016 in relation to the picking of threatened species, threatened ecological communities or protected plants, damage to a declared area of outstanding biodiversity value or damage to the habitat of a threatened species or threatened ecological community, if the person charged can establish that the clearing was authorised by the Code.
This is the first case to test the new provision of the Local Land Services Act which allowed for the making of the Code.
We are grateful to barristers Jeremy Kirk SC and David Hume for their assistance in this matter.
Meg Lamb, Solicitor for EDO NSW, has carriage of this matter for NCC NSW, and our Principal Solicitor, Elaine Johnson, is the solicitor on record.
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- Case note from Australian Environment Review
- EDO NSW input into the Biodiversity Legislation Review 2016-17
- EDO NSW factsheet: Conservation on private land
- Link to this case summary.
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NCC v Min for Primary Industries 2018
Nature Conservation Council of NSW, represented by EDO NSW, has commenced proceedings in the Land and Environment Court to challenge the decision of the Minister for Primary Industries to make the Land Management (Native Vegetation) Code 2018 (2018 Code) under the Local Land Services Act 2013 (NSW).
The 2018 Code was made on 9 March 2018, only a few hours after the Land and Environment Court, on application by the Nature Conservation of Council of NSW, invalidated the Land Management (Native Vegetation) Code 2017 (2017 Code) and quashed the Minister for Primary Industries’ decision to make the 2017 Code. The 2018 Code is identical in nature and came into force on 10 March 2018. It allows landholders to carry out significant amounts of self-assessed clearing of native vegetation without further approval or environmental assessment, including in areas with endangered ecological communities, and threatened species.
While the 2017 Code was intended to be released with native vegetation regulatory maps to assist landholders to identify where clearing of native vegetation on rural can and cannot occur, the release of those maps was significantly delayed. They are in fact still yet to be released, which means landholders continue to be required to self-assess whether such land management clearing codes apply to their land.
Nature Conservation Council of NSW is arguing that the 2018 Code is invalid because the Minister for the Environment did not lawfully fulfil her concurrence role. Upon the basis of documents received under freedom of information laws, it appears that the Minister for the Environment failed to give proper, genuine and realistic consideration to the decision to grant concurrence to the Minister for Primary Industries to make the 2018 Code, and to principles of Ecologically Sustainable Development (ESD), as was required by law. The documents indicate that the Minister for the Environment did not have sufficient time or material to enable to her to make the decision, and that as a result, the 2018 Code was made unlawfully.
In discharging her duty to have regard to the principles of ESD, Nature Conservation Council of NSW says that the Minister for the Environment, as the Minister responsible for administering the Biodiversity Conservation Act 2016 (BC Act), had a specific obligation to give proper, genuine and realistic consideration to the precautionary principle, inter-generational equity and the conservation of biodiversity and ecological integrity, and to consider how the making of the 2018 Code itself would affect those principles. In doing so, Nature Conservation of Council NSW is arguing that this obligation - when properly understood in the context of the BC Act - included a requirement to consider the contribution that clearing of vegetation under the 2018 Code would make to greenhouse gas emissions, and the impact of climate change on the conservation of biological diversity and ecological integrity, or the ability of the present generation to ensure the health, diversity and productivity of the environment is maintained for future generations. On the face of the documents, it appears that the Minister for the Environment did not fulfil this important obligation.
Given the challenge to the 2017 Code did not proceed to a hearing before the Court, this will be the first case to test the new provision of the Local Land Services Act, which allowed for the making of the 2018 Code.
We are most grateful to barristers, Jeremy Kirk SC and David Hume for their assistance.
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Humane Society International v Department of the Environment and Energy
Our client, Humane Society International (HSI), sought access to documents held by the Australian Department of the Environment and Energy on the adequacy of NSW’s biodiversity offsets policy for major projects ('the Policy').
Update May 2018: After a three year legal battle, more than 60 documents were eventually released.
HSI argued that the public has a right to know why the Australian Government believes, despite evidence to the contrary, that the NSW Policy meets national standards. On behalf of HSI, we asked the Administrative Appeals Tribunal to find that it is in the public interest to release the documents under Freedom of Information laws.
Biodiversity offsets have become standard practice in the approval and assessment of major developments in Australia, even though there is little evidence that offset schemes achieve their intended purpose of protecting threatened species from extinction.
Biodiversity offsets allow developers such as mining companies to buy/manage land, or pay money into a fund, to compensate for the clearing of forests and areas containing threatened plants and animals.
Community groups such as HSI are concerned that the method for calculating biodiversity offsets in NSW, contained in the NSW Policy, does not properly protect the environment – including the plants and animals on the national list of threatened species and ecological communities.
The Australian Government, which is responsible for the national list of threatened species – and has international obligations to protect and conserve biodiversity in Australia – has stated that the NSW Policy meets national standards of environmental protection. However, analysis by EDOs of Australia shows clearly that the NSW policy provides weaker environmental protection than required under national environment policies.
With the Australian Government delegating more and more development approval powers to the states and territories under its ‘one stop shop’ policy, community groups fear that there will be fewer protections for our nationally threatened species and ecological communities.
HSI is therefore seeking access to documents detailing the Australian Government’s analysis of the NSW Policy. Access to this information is vital for the public to have confidence that important environmental protections are not being eroded.
Rana Koroglu, Senior Solicitor at EDO NSW, has carriage of this matter for HSI.
- EDO NSW media release: FOI legal win reveals NSW offsets policy fails to meet national environmental standards - but was accredited anyway
- Blog post: The political endorsement of extinction
Offsets policies failing to protect threatened species, 5 May 2014
- Federal handover of environmental approval powers to the states
NSW biodiversity offsets policy for major projects
- Link to this case summary
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Australian Conservation Foundation v Minister for Resources
Following the announcement of the Federal Government's decision to reissue a woodchip export licence to Harris-Daishowa on the South Coast of NSW, EDO NSW wrote to the Minister for Resources in January 1995 requesting written reasons for his decision under section 13 of the Administrative Decisions (Judicial Review) Act, 1977. The AD(JR) Act provides that a reasons should be provided within 28 days of receiving the request.
After the Minister failed to meet his promises to provide the reasons, EDO NSW commenced proceedings on behalf of the ACF in the Federal Court seeking orders that the Minister provide his reasons forthwith. On the first day that the matter came before the Court, the Minister agreed to provide the reasons and to pay ACF's costs of the proceedings.
Jarasius v The Forestry Commission of New South Wales
In the late 1980s, EDO NSW acted for Wendy Jarasius, a local resident, challenging the Forestry Commission over the logging of old-growth eucalypt forests in the southern-eastern forests near Eden, described as “the main environmental dispute in NSW in the late 1980s”. Although logging was ultimately allowed, the legal ramifications from the case were vitally significant for conservation in NSW, spurring victories in the north and winning concessions from the Government over logging in forests and the assessment of environmental impacts of logging.
Judgment - Failure to examine and take into account possible environmental impacts from issuing timber licenses or logging.
Nature Conservation Council of NSW v Department of Trade & Investment, Regional Infrastructure & Services and Anor (Administrative Decisions Tribunal proceedings)
The NCC sought access to a range of documents from Forest NSW under the Government Information (Public Access) Act 2009 (NSW). The documents sought included the contracts between Forests NSW and sawmill companies for the supply of timber. The Department of Trade and Investment, Regional Infrastructure and Services agreed to release the contracts, but with relevant information removed, including the resource allocation and/or description, the resource price and terms of the agreements.
The reasons given for refusing access to this information related to the commercial nature of the information. The NCC has appealed to the Administrative Decisions Tribunal against this decision. The Tribunal will decide whether the public interest considerations in favour of release outweigh the factors against release. EDO NSW is acting for the NCC in the Tribunal.
The hearing was held 6 & 7 March 2012, and decision was handed down on Thursday 20 September 2012.
The NSW Administrative Decisions Tribunal, consisting of Judicial Member Mr Stephen Montgomery, determined that the public interest in favour of releasing the details of the contracts outweighed any commercial interests in keeping them secret.
While the Tribunal accepted that there might be some risk of the commercial interests of the sawmills being affected, it observed that “there is considerable doubt in regard to the extent of those risks”. In contrast, the Tribunal accepted that there were strong public interest considerations in favour of release including:
• a clear public interest in an agency that is dealing with public assets being accountable for the manner in which it contracts to sell those assets;
• to further public policy development around the management of the publicly owned hardwood forest estate in NSW; and
• to encourage community engagement with Government about sustainability
The Tribunal has therefore ordered release of the contracts within 30 days.
EDO NSW acted for the NCC in this matter. The decision recognises the community’s right to access detailed information about the NSW Government’s management of State forests and plantations. This decision builds on the Tribunal’s earlier decision in Watt v Forests NSW in providing public access to information about the financial return on logging of public forests.
North Coast Environment Council v Minister for Resources and Sawmillers Export Pty Ltd (SEPL) (No 2)
EDO acted for NCEC in challenging a woodchip export licence issued by the Minister for Resources in relation to woodchips derived from the forests of the North Coast of NSW. The case was settled on the day of the hearing when the company (Sawmillers Exports, a subsidiary of Boral Ltd) surrendered its licence and a new licence was issued on the spot by the Federal Minister for Resources. EDO NSW was successful in recovering its costs.
North Coast Environment Council Inc v Minister of Resources (No1)
EDO NSW acted for the North Coast Environment Council (NCEC) in proceedings brought against the Minister for Resources in relation to a three month export woodchip licence issued by the Minister in June 1994 to Sawmillers Exports Pty Limited. The NCEC sought reasons from the Minister under section 13 of the Administrative Decisions Judicial Review Act (ADJR Act) for his decision to issue the licence. Entitlement to reasons was dependant upon the NCEC showing that it was a "person aggrieved" within the meaning of the Act. The only issue raised by the proceedings was therefore whether the NCEC had standing to request reasons for the Minister's decision. His Honour Mr Justice Sackville concluded that the NCEC had standing.
EDO NSW is grateful to barristers Mr J. Basten QC and Mr N. Williams for their assistance in this matter.
North Coast Environment Council v National Parks and Wildlife Service
In 1998, EDO NSW acted for the North Coast Environment Council challenging a licence issued by NPWS to relocate a flying fox colony near a school. The colony contained the threatened black flying fox and it was argued that the conditions necessary to issue a licence to harm for threatened species had not been met. The NCEC were successful in obtaining an interim injunction to prevent the removal of the colony but had to withdraw before the final hearing due to an unsuccessful application for legal aid. The injunction was subsequently lifted.
North Coast Environment Council Inc v Department of Environment and Climate Change & Ors
EDO NSW acted for the North Coast Environment Council Inc (NCEC) in this matter. The NCEC filed an application in the NSW Administrative Decisions Tribunal challenging the decision of the Department of Environment and Climate Change ( DECC ) to refuse NCEC access to information it holds regarding logging approvals on private land.
The NCEC lodged a Freedom of Information Application with DECC seeking information on private logging operations in NSW. The NCEC sough the information in order to independently assess how the relatively new system of regulation over logging on private lands was being applied.
DECC refused access, claiming that the material sought contained the business affairs and personal affairs of the landholders. DECC aslo said that landholders may be subject to trespass, property damage and blockades if the material were to be released. NCEC believed that DECC did not apply the Act in accordance with the law and that it was in the public interest that the information be released.
Five landholders that conduct private logging operations on their land joined the proceedings. They claimed that their property and commercial interests would be adversely affected if the information held by DECC was released. No evidence to support such claims was provided.
Prior to the hearing, DECC agreed to release the documents to the NCEC and the matter was settled by way of consent orders.
EDO NSW acknowledges and thanks barrister Jason Lazarus for his assistance in this matter.
RedGum Forest Action Inc v Forests NSW
EDO NSW commenced proceedings in the Land and Environment Court on behalf of Red Gum Forest Action Inc (RFA Inc) against Forests NSW. RFA Inc contended that Forests NSW was logging the Riverina Forestry Management area along the Murray and Murrumbidgee Rivers without the requisite legal approval.
Most forestry operations in NSW are subject to Regional Forestry Agreements (RFAs) and logging operations in the particular RFA area are carried out in accordance with an Integrated Forestry Operations Approval and therefore excluded from assessment under Part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Riverina area was not subject to an RFA - as the comprehensive assessment required under an RFA had not been undertaken. In 2005 the Minister ordered that Part 5 activities like those of Forests NSW are projects under Part 3A of the EP&A Act.
Forests NSW did not have an approval under Part 3A of the EP&A Act to log in this area, making the existing logging operations at the time unlawful. A Part 3A application had been lodged but no approval was granted.
As the matter was progressing towards a hearing the NSW Parliament introduced the National Park Estate (River Red Gum Reservations) Act 2010. The Act places much of the River Red Gum Forests into State Reserves and the logging that continues outside of those reserves are now subject to an approval under the Forestry and National Parks Estate Act 1998.
RFA Inc discontinued its case in the Land and Environment Court against Forests NSW.
EDO NSW would like to thank Jason Lazarus of Counsel for all of his assistance in the matter.
South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd
EDO NSW, acting on behalf of South East Forest Rescue (SEFR), brought judicial review proceedings challenging an approval by the Bega Valley Shire Council to a pilot wood pellet manufacturing plant at the Eden woodchip mill. SEFR maintained that the Council failed to consider zoning objectives and ecologically sustainable development (ESD) as required by the Environmental Planning and Assessment Act 1979 ("the Act").
Preston CJ delivered judgment on 16 December 2011, upholding three of SEFR's four grounds. His Honour found that Council failed to properly consider a number of matters that it was required to consider, including:
- the zoning objectives under cl 8(3) of Bega Valley Local Environmental Plan 2002;
- the public submissions regarding consistency with zoning objectives and ESD; and
- ESD under cl 79 of the LEP and as an element of public interest under s 79C(1)(e) of the Act.
Significantly, the judge held that Council was bound to consider the public submissions made as Council had exercised its discretion to advertise/give public notice to invite submissions, despite the fact that public notification was not mandated by the Act for this development.
Costs were reserved, and the respondents have since paid SEFR’s costs of the proceedings.
EDO NSW congratulates and thanks Sandra Duggan, senior counsel, and Scott Nash, counsel, who appeared on behalf of SEFR.
Tasmanian Conservation Trust Inc v Minister for Resources and Gunns Ltd
EDO NSW acted for the Tasmanian Conservation Trust challenging a woodchip export licence granted by the Minister for Resources to Gunns Ltd on 10 June 1994.
The Minister advised that he had also granted "in principle" approval to allow Gunns to export up to 200 000 tonnes of hardwood chips until the end of 1999, subject to the issue of annual export licences. The Minister followed departmental advice that he did not need to designate Gunns under the Environment Protection (Impact of Proposals) Act 1974 as the export proposal did not raise any issues of environmental significance not already taken into account under an earlier EIS on the Tasmanian woodchip industry conducted in 1984.
A key issue which needed to be decided was the question of standing. In order to approach the Court, the Trust needed to be a "person aggrieved" under the Administrative Decisions Judicial Review Act. The Court found that the Trust did have standing, refering to a number of key factors that supported this finding.
The next question was whether the Minister had complied with the law. The Court held that the Minister had not addressed his mind to the issue of whether the proposed action would effect the environment to a significant extent. He had asked himself the wrong question, and only whether the environmental impact of the proposed action was substantially different from that of proposals previously assessed in preparing the 1985 EIS.
The case also challenged the in principle approval. The Court held that the in principle approval was not a decision which the Export Control (Unprocessed Wood) Regulations required or authorised. His Honour held that Gunns may have a legitimate expectation that a licence would not be denied on other grounds and Gunns would be entitled to procedural fairness because of that expectation. However this would not create any other entitlement in Gunns.
Although a loss for the Trust on this point, it was crucial that it be determined. It proves that woodchipping companies in Australia would have no entitlement to compensation if these licences were not renewed.
On 19 December 1994, the Minister for Resources issued a fresh licence for 1995 to Gunns Ltd, prior to the handing down of this judgement. EDO NSW represented the Trust in a fresh challenge to this new licence, on substantially the same grounds.
EDO NSW is grateful to barristers Mr J. Basten QC and Mr N. Williams for their assistance in this matter.
True Conservation Association v The Minister Administering the Threatened Species Conservation Act 1995
In these proceedings the TCA challenged the decision by the Minister on 14 Dec 2007 to grant biodiversity certification to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The effect of biodiversity certification is that species impact statements no longer need to be carried out for individual development applications in the area covered by the Growth Centres SEPP. Biodiversity certification is a process whereby up-front planning for threatened species protection is intended to take the place of site-by-site assessments. The Minister cannot grant biodiversity certification unless he or she is satisfied that the SEPP will lead to the overall improvement or maintenance of biodiversity values.
The TCA believed that, in this case, biodiversity certification was granted prematurely and based on inadequate information. The plan would result in the clearing of 1,856 ha of some of the rarest vegetation communities in the State. Approximately 16 threatened plant species and 22 threatened fauna species would suffer a loss of habitat as a result of the planned development under the Growth Centres SEPP.
On 25 June 2008 the Threatened Species Conservation (Special Provisions) Bill 2008 passed through both houses of the NSW Parliament. The bill conferred biodiversity certification on the area within the Growth Centres SEPP covered by the original order. This meant that the Growth Centres SEPP would have the benefit of biodiversity certification, even if the original biodiversity order was declared invalid by the Court.
The NSW Government has shown scant respect for the rule of law by introducing special legislation to avoid having to comply with the requirements of the Threatened Species Conservation Act in relation to the Growth Centres SEPP. This sets a poor precedent for other areas of the State which are also subject to development pressure.
EDO NSW is grateful to barrister Geoffrey Kennett SC for his assistance in this matter.
Watt v Forests NSW
EDO NSW represented Gerry Watt in a Freedom of Information matter before the NSW Administrative Decisions Tribunal. Mr Watt sought from Forests NSW the separate royalty rates for pulp logs in the Southern and Eden Regional Forest Agreement regions for 2003-2004.
Forests NSW initially refused access to the information based on 3 exemptions under the Freedom of Information Act:
- The information was commercial in nature;
- The information concerned the business, professional, commercial or financial affairs of a company, where the release of the information could be reasonably expected to have an unreasonable adverse effect on those affairs or prejudice the future supply of the information to the agency or the Government; and
- The release of the information would found an action for breach of confidence.
The Tribunal rejected all of the above clauses as reasons for exemption, and determined to release the documents.
In arriving at a decision, Tribunal Member Stephen Montgomery said:
In my view, the potential socio-economic impact that would flow from release of the royalty rate is a highly relevant factor. If Forests NSW were correct in its assessment of the potential impact, very strong grounds would need to be found to justify the disclosure of the royalty rate. In my view, the factors favouring disclosure are sufficiently strong to justify disclosure. These factors all favour the opportunity for debate on an issue of significant public interest - the socioeconomic and ecological value of these publicly owned forests and whether the existing operations provide an adequate return to the community from the use of a public resource. An uninformed public cannot usefully participate in that debate.
WWF-Australia v Department of Agriculture, Fisheries and Forestry
EDO NSW acted for WWF-Australia in the Administrative Appeal Tribunal against the Department of Agriculture, Fisheries and Forestry ('DAFF') in relation to a Freedom of Information matter. WWF-Australia appealed the decision of the Australian Bureau of Agricultural and Resource Economics ('ABARE') to refuse access to the responses of a number of farmers to questionnaires used by ABARE to obtain information and views about land clearing in NSW. ABARE is a division of DAFF.
In May 2007, the NSW Farmers Association joined the proceedings.
After negotiations between WWF-Australia and ABARE in early 2008, ABARE provided aggregated information about the underlying survey results to WWF-Australia. WWF-Australia was satisfied with the provision of this information and therefore discontinued the application on 4 April 2008.