Posted on June 24, 2024 by Liam Mulligan 3

The principle of standing in environmental litigation – a recent development

The common law principle of “standing” determines whether a person is entitled to commence proceedings in a particular forum or in respect to a particular issue. Demonstrating a “special interest” in the subject matter of proceedings has generally been sufficient for a person to establish standing at common law. In a recent decision, the NSW Court of Appeal weighed in on this principle, offering a useful guide as to what steps or activities might be capable of demonstrating a “special interest”.

Background

South East Forest Rescue Incorporated (Appellant) had sought to bring civil enforcement proceedings in the Land and Environment Court against the Forestry Corporation of NSW (Respondent) to restrain the Respondent from conducting forestry operations unless steps were taken to protect three glider species, in particular the Greater Glider.

In the underlying proceedings in the LEC, the primary judge found that the Appellant lacked standing because they had failed to demonstrate a special interest specific to the protection of gliders. As a consequence, the primary judge found that the Appellant was not able to bring civil enforcement proceedings against the Respondent.

Issues

A number of issues arose on appeal, but these can be distilled into two primary issues, being:

• whether under the relevant statutory schemes (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 were precluded from bringing civil enforcement proceedings (Ground 1), and
• whether the primary judge erred in determining the appellant did not have standing (Ground 4).

The Court of Appeal’s decision 

Ground 1

Whilst the relevant statutory provisions in the Forestry Act and Biodiversity Conservation Act did impose limitations on the ability to bring proceedings or seek relief in respect to certain matters, none of the provisions expressly excluded common law standing principles.  The question then was whether, on their proper construction, the provisions should be interpreted as excluding those principles.

The Court of Appeal found that common law standing principles applied because:

• the Forestry Act and the Biodiversity Conservation Act operated to exclude “open standing”. Open standing is where any person may bring proceedings without needing to demonstrate any special or particular interest (for example, any person may bring proceedings to restrain a threatened or existing breach of the EPA Act).
• However, any law intending to remove fundamental rights or privileges such as the ability of specifically interested persons to seek relief under the statute would need to be expressed with “irresistible clearness”. The relevant statutory provisions in this case were, the Court concluded, far from irresistibly clear on this point. The Court held that much clearer language than that which appears in the statutory schemes would be required in order to oust well established common law standing principles.

Ground 2

The Court confirmed that common law standing can be demonstrated by a “special interest” and a person need not have a private right or have suffered damage in order to bring proceedings.

The sufficiency of particular steps or activities to demonstrate a special interest will always be specific to the facts and context of a particular case. In this case, the Court held that the Appellant had a sufficient special interest because:

• it had an approximate 20-year history of taking active steps and tangible action in relation to its beliefs and concerns, and
• it had demonstrated a deep concern regarding logging and its effects on the welfare of forest-dependent threatened species, including the Greater Glider.

On that basis, the appeal was allowed.

You can read the decision in full here: South East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113.

If you have any questions in relation to this decision, please leave a comment below or contact Liam Mulligan on +61 2 8235 9715.