Legal Expert: NSW Forestry Court Case Highlights EPA Overreach

The role of the NSW Environmental Protection Authority is in the spotlight after the NSW Land and Environmental Court threw out a case brought forward by the North East Forest Alliance yesterday

Tue 21 Nov 23


The NSW Land and Environment Court has rejected an application to stop harvesting in two bushfire-affected forests in northeast NSW.

Yesterday, Judge Sarah Pritchard ruled that evidence provided by the North East Forest Alliance (NEFA), which alleged that koala habitat was “being destroyed”, was “not relevant” before the case was dismissed.

Judge Pritchard stated that the NSW Forestry Corporation “had considered and applied ESFM when it made the logging rules (the Coastal Integrated Forestry Operations Approval) in 2018.”

The application was a Judicial review of a decision by a delegate of Forest Corporation of NSW.

According to Solicitor Andrew Kwan from the Environment Defenders Office (representing NEFA), the decision to not accept evidence was not unexpected.

“Normally, where the lawfulness of a decision is being challenged, expert evidence is not admissible,” he told the ABC.

“In special circumstances, that evidence is allowed, but her honour said in these circumstances it was not permissible.”

“For a while, I think about 25 years, there has been a provision in the forestry laws to say that only the EPA (Environment Protection Authority) could bring actions regarding the lawfulness of the NSW Forestry Corporation’s activities.”

“But her honour clarified and confirmed that that is not the case; that only applies to breaches where the EPA can take action.” 

This afternoon, the Environmental Defenders’ Office said the ruling nonetheless “opens the door for further legal action,” with confirmation for the first time “that the community can take critical action in the court to protect native species in circumstances where the authority to log state forests is disputed,” Mr Kwan said.

Wood Central has obtained a copy of the 104-page judgement, with the grounds of the case ultimately coming down to a judicial review of the NSW Forestry Act and, more specifically, granting “integrated forestry operations approvals” under Part 5B of the Act.

The Wood Central Publisher spoke to a legal expert who, after reading the Caselaw, said the NEFA was looking to alter the CIFOA provisions in a similar manner to what the EPA was attempting after the 2019 bushfires. (CIFOA Coastal Integrated Forestry Operation Approval)

“The judgement reveals the extensive correspondence that the EPA was having with NSW Forestry Corporation,” according to Timber NSW’s legal expert Stuart Coppock.

“The EPA drafted the CIFOA and its previous iteration and the correspondence reveals attempts to redraft the provisions outside the terms of the Forestry Act.”

He said that had the NFEA application been successful, “what the EPA had sought in the correspondence would have been one step closer”.

The EPA want to use Site Specific Operating Conditions (SSOA) to ensure harvesting activities in fire-impacted forests and other circumstances meet ecologically sustainable forest management (ESFM), giving the EPA sanction over any operations when they considered SSOA to exist. 

This is not what was approved by the legislative process.

The case reveals that former CEO of the EPA, Tracey Mackey, “pushed the envelope” during correspondence with NSW Forestry Corporation.

In a series of letters dated September 2020, February and March 2021, Ms Mackey raised concerns with NSW Forestry Corporation about the harvest activities in fire-impacted forests. 

However, according to Mr Coppock, the powers of the EPA, as outlined in Part 5B of the Forestry Act, simply relate to compliance or enforcement responsibilities.

“Had the case been successful, it would have altered the Part 5b approval for forestry and broadened the capacity for EPA.”

This is not an isolated incident of the EPA pushing the envelope with the problem, according to a source connected to the industry, lying in the culture of the EPA itself.

“The EPA makes a lot of claims around the sustainability of the industry in coastal areas; however, many of the EPA inspectors involved in assessing claims are untrained in forestry and don’t follow their policies,” they said.

Wood Central spoke to a source anonymously connected to the case who said: 

“The term collusion is bandied around and you could make a case that this does occur between those with strong ideologies within the EPA and the ENGOs. There is enough circumstantial evidence available to indicate this and if collusion is occurring or even decisions made on individual opinions or beliefs, then this is a breach of the Public Service Charter.”

(Wood Central makes no claims collusion exists between the department and outside groups).

The Judgement also revealed interesting insights about the NSW Forestry Corporation.

According to Mr Coppock, “It is clear the organisation will not speak up for its own defence” possibly at the direction of a past premier and present state ministers.

Nonetheless, “Forestry Corporation NSW plays a precautionary hand which of course is required by their legislation, he said. The correspondence reveals that they are very conscious of the need to practice the highest level of environmentally sustainable forest management and that they do just that.”

“So full marks to NSW Forestry Corporation!”


  • Jason Ross

    Jason Ross, publisher, is a 15-year professional in building and construction, connecting with more than 400 specifiers. A Gottstein Fellowship recipient, he is passionate about growing the market for wood-based information. Jason is Wood Central's in-house emcee and is available for corporate host and MC services.


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