"Still Standing" - common law standing principles continue to apply under the Forestry Act

The NSW Court of Appeal has confirmed that a community organisation had standing at common law to bring civil enforcement proceedings seeking to prevent actions of the Forestry Corporation of NSW.

This was despite provisions in the Forestry Act which had the effect of ‘turning off’ open standing provisions.

Snapshot

• The NSW Court of Appeal has allowed an appeal by South East Forest Rescue Incorporated (SEFR) against a decision of the Land and Environment Court of NSW (LEC) that SEFR lacked standing to bring civil enforcement proceedings.
• The Court of Appeal confirmed that the common law principles of standing continued to apply, despite provisions in the Forestry Act 2012 (NSW) (Forestry Act) which had the effect of ‘turning off’ open standing provisions.
• SEFR was found to have standing on the basis it had a sufficient ‘special interest’ in the subject matter of the proceedings.

Background

On 15 January 2024, SEFR commenced Class 4 civil enforcement proceedings in the LEC seeking:

• that the Forestry Corporation of NSW be restrained from conducting any forestry operations in certain compartments of State Forest; and
• a declaration that certain trees be deemed habitat of protected glider species for the purposes of the Coastal Integrated Forestry Operations Approval.

At first instance,[1] the LEC found that:

• having regard to the purpose, context and language of the Forestry Act, as well as the principle of legality, common law standing was still available to SEFR (notwithstanding section 69ZA of the Forestry Act which sought to remove open standing provisions in certain circumstances); and
• although common law standing was available, SEFR did not meet the relevant legal threshold, and therefore was precluded from bringing the subject action.

The legal test for standing at common law was established in ACF v Commonwealth.[2] In that decision, the Court found that a person would have standing if they had a ‘special interest’ in the proceedings. The Court held that a person would not have a ‘special interest’ unless they were likely to:

• gain some advantage, other than the satisfaction of righting a wrong or upholding a principle, if their action were to succeed; or
• suffer some disadvantage, other than a sense of grievance of a debt for costs, if their action were to fail.

The LEC determined that SEFR did not meet the test for common law standing because:

• SEFR was registered as ‘South East Forest Rescue Incorporated’, while the compartments the subject of the proceedings were located in the Lower North East, Upper North East, and Southern subregions;
• while SEFR was formed for the purposes of ‘ending native logging in NSW’, its activities had been largely focused in South East NSW and the proceedings concerned the protection of Southern Great Gliders;
• there was no clear evidence in relation to the role and activities of each of SEFR’s members in relation to protecting NSW native forests and Southern Great Gliders;
• there was no evidence in relation to SEFR’s resources and sources of funding; and
• SEFR had only recently commenced activities aimed at protecting Southern Great Gliders and their habitat.

NSW Court of Appeal finds that SEFR had standing at common law

On appeal, the key issues were:

• whether s 69ZA of the Forestry Act limited the applicability of common law standing for persons with a special interest in the subject matter of civil enforcement proceeding; and
• if common law standing remained available, whether SEFR had a ‘special interest’ in the subject matter of the proceedings.

The Court of Appeal found that:

• Consistent with the LEC decision, common law standing principles remained available to SEFR, notwithstanding section 69ZA.
• Clearer language would be required to oust common law standing than what was used in section 69ZA.
• The determination of whether a person has standing at common law is an evaluative judgment of the facts and context of each case.
• SEFR had a sufficient ‘special interest’ in the subject matter of the proceedings such that it met the common law test for standing. In making this finding, the Court had regard to a range of factors, including the fact that:
• SEFR’s interest was more than a mere intellectual or emotional concern for preservation of the environment;
• SEFR’s interest went beyond that of members of the public upholding the law;
• SEFR had taken active and concrete steps to give effect to its beliefs and concerns regarding environmental protection; and
• SEFR’s interest regarding the protection of the subject glider species and their habitat was not a recent development.

Key takeaways

• Proponents will be familiar with the broad standing provisions available in environment and planning statutes in Australia, and particularly in New South Wales.[3]
• The Court of Appeal’s decision highlights that even where open standing provisions have been ‘turned off’, common law standing remains available. The decision also reinforces that Courts have tended to take a broad approach to standing, particularly in environmental matters.

The Court of Appeal’s decision can be found at the following link: South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113.

If you would like to understand what this case means for you, please do not hesitate to get in touch.