South East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113 

Summary

In South East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113, the NSW Court of Appeal held that South East Forest Rescue Incorporated (SEFR), an environmental organisation, had common law standing to bring civil enforcement proceedings against the Forestry Corporation of NSW (FCNSW) regarding alleged non-compliance with forestry approval conditions aimed at protecting threatened glider species. 

Facts

SEFR brought civil enforcement proceedings in the Land and Environment Court (LEC) against FCNSW. The claim concerned forestry operations carried out by FCNSW under an Integrated Forestry Operations Approval (IFOA) issued pursuant to Part 5B of the Forestry Act 2012 (NSW) (Forestry Act). SEFR alleged that FCNSW had breached conditions of the IFOA related to habitat protection for three species of threatened gliders: the Southern Greater Glider, the Yellow-bellied Glider, and the Squirrel Glider. 

Specifically, SEFR argued that FCNSW failed to conduct adequate pre-logging surveys required under Condition 57 of the IFOA and had not protected glider “den trees” with mandated exclusion zones under Condition 76 of the IFOA. The focus was on failures to detect, map, and protect trees used by gliders for roosting or breeding. 

SEFR sought to restrain FCNSW from logging in various state forest compartments unless it complied with the relevant IFOA conditions. The organisation filed for interim injunctive relief in January 2024 in respect of 13 compartments and later sought to include 19 additional compartments. 

FCNSW challenged SEFR’s standing, arguing that SEFR lacked the necessary “special interest” in the subject matter, and that the governing statutory scheme excluded private enforcement. The LEC agreed, holding that SEFR did not have standing and dismissing the proceedings. 

SEFR appealed to the NSW Court of Appeal, raising the following principal issues: 

• whether the relevant statutory framework (particularly s 69ZA of the Forestry Act) excluded standing at common law;
• whether SEFR had a “special interest” sufficient to confer standing; and
• whether procedural fairness was denied in the way the standing issue was determined. 

Decision 

The NSW Court of Appeal (Adamson JA, Basten AJA, and Griffiths AJA) unanimously allowed the appeal. 

Statutory framework did not exclude common law standing 

The Court rejected FCNSW’s argument that the legislative provisions precluded private enforcement. In particular, the Court construed s 69ZA of the Forestry Act and s 13.14A of the Biodiversity Conservation Act 2016 (NSW) (Biodiversity Act) not as ousting common law standing, but as disapplying statutory open standing provisions in certain contexts. 

Justice of Appeal Adamson emphasised that clearer language is required to displace common law rights. The principle of legality required a statute to use “irresistibly clear” language to remove fundamental rights like access to the courts. Nothing in the Forestry Act or Biodiversity Act demonstrated such a clear intention. 

Acting Justice of Appeal Griffiths, delivering the principal judgment, concluded that the statutory scheme did not evince an intention to displace general law rights to seek injunctive relief. 

SEFR had a special interest in the subject matter 

The Court held that SEFR had standing to bring the proceedings under the common law “special interest” test. It referred extensively to precedents including Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, and Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998) 194 CLR 247. 

The Court found that SEFR: 

• had a 20-year history of active engagement in forest conservation;
• conducted audits, reported breaches, and engaged in litigation and advocacy; and
• demonstrated targeted concern for glider protection, including recent surveys and reporting to the EPA. 

Acting Justice of Appeal Griffiths stressed that standing is context-specific. While intellectual or emotional concern alone is insufficient, SEFR’s practical and sustained involvement in forest and species protection met the test. 

Acting Justice of Appeal Basten noted the practical difficulty in expecting statutory agencies like the NSW Environment Protection Authority (EPA) to enforce conditions where the regulated party is another state authority. Denying SEFR standing would risk making key environmental safeguards unenforceable. 

Procedural fairness and interlocutory relief 

Although SEFR had also argued that it was denied a fair opportunity to present further evidence on standing, the Court did not need to resolve that issue given the finding in its favour on the issue of standing. 

The Court set aside the orders made by the LEC and awarded SEFR costs. 

Appeal 

FCNSW appealed the decision to the High Court, arguing that only government entities (as listed in s 69ZA(3) of the Forestry Act), and not private persons or entities, could bring enforcement proceedings in the LEC to enforce duties and obligations imposed by an IFOA and Part 5B of the Forestry Act.

The High Court unanimously dismissed the appeal with costs for the following key reasons: 

1. The LEC’s jurisdiction includes equitable jurisdiction to enforce public rights, duties and obligations, including those imposed by Part 5B of the Forestry Act. This jurisdiction is not limited unless a statute clearly and unmistakably excludes it. There was no clear and unmistakeable intention demonstrated in this case that the LEC’s jurisdiction, or the liberty of access to the LEC, is withdrawn or limited by Part 5B of the Forestry Act and the cognate provisions of the Biodiversity Act.
   
2. Absent such a statutory intention to the contrary, proceedings for the enforcement of such a right, duty or obligation can be commenced and maintained by a person who satisfies either limb of the test set out in Boyce v Paddington Borough Council. This includes individuals or entities with a “special”, “sufficient” or “real” interest in the subject matter of proceedings. There was no challenge to the Court of Appeal’s finding that SEFR had a special interest in the subject matter of these proceedings. 
3. The Court rejected FCNSW’s argument that equitable jurisdiction should only be invoked if statutory remedies are inadequate, holding that adequacy of remedies is not a prerequisite for standing in equity to enforce public obligations.
4. Section 69ZA of the Forestry Act limits proceedings under certain open standing provisions (i.e. those allowing “any person” to sue regardless of personal impact). However, it does not exclude proceedings brought by persons with common law standing (i.e. those with a “special interest”). Similarly, while the EPA has powers to enforce Part 5B, this does not preclude others with standing from doing so.  

Commentary 

This decision is significant for public interest litigation and environmental enforcement. It clarifies that statutory schemes regulating forestry and biodiversity in NSW do not exclude the right of private persons or groups to seek equitable relief under general law. The case reinforces a flexible and evaluative approach to standing that takes into account the applicant’s history of engagement and capacity to contribute meaningfully to enforcement. 

The Court’s reasoning also aligns with broader international principles recognising access to environmental justice. It reflects judicial acknowledgment that public authorities may not always be best positioned to enforce regulatory compliance, especially in politically sensitive contexts. 

Importantly, the case ensures that conditions aimed at protecting endangered species cannot be ignored simply because the regulatory agency chooses not to act. Civil society organisations like SEFR thus remain an essential check on administrative inaction or oversight. 

In the broader Australian context, this case serves as a reaffirmation of common law pathways to justice in the environmental sphere. 

This case note was prepared by DLA Piper.