Save our Strathbogie Forest Inc v Secretary to Dept of Energy, Environment and Climate Action

COURT OR TRIBUNAL

Federal Court of Australia

DATE FILED (OR FIRST HEARING DATE)

14/06/2023

LITIGATION TYPE

Project Approval - Adaptation

SUBJECT MATTER

Threatened species

REVIEW TYPE

Judicial review

SUMMARY

ENVIRONMENT LAW — Listed threatened species — Proposed conduct of planned fuel reduction burns in the Strathbogie State Forest — Whether planned burns are an action that will have or is likely to have a significant impact on the Southern Greater Glider in contravention of s 18(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) — Where applicant seeks injunction to restrain Secretary from carrying out the planned burns — Where Secretary has statutory obligation to perform proper and sufficient work for prevention of fire in the State of Victoria — Where Secretary contends planned burns are exempt from application of s 18(3) of the EPBC Act on the basis that planned burns are a lawful continuation of a use of land under s 43B of the EPBC Act — Whether planned burns are a lawful continuation of a use of land occurring immediately before commencement of EPBC Act — Held that s 18(3) of the EPBC Act applies to Secretary’s proposed action in carrying out the planned burns — Planned burns are not the lawful continuation of a use of land, or are an enlargement, expansion or change in location resulting in a substantial increase in the impact on the land — No significant impact on listed threatened species established on the evidence before the Court — Application dismissed.

CONSTITUTIONAL LAW — Where Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) requires approval for actions that have a significant impact on matters of national environmental significance — Where State government department proposes to conduct planned fuel reduction burns in a State forest in Victoria to reduce bushfire risk — Whether it is an essential function of State government to protect lives and property in the State — Whether Commonwealth law curtails or impairs exercise by State of constitutional powers — Whether s 18(3) of the EPBC Act infringes principle in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 — Held that s 18(3) of the EPBC Act in its application to the conduct of works by the Secretary for the prevention of fire in State forests does not curtail or impair either thecapacity of the State to function as a government or the exercise by the State of its constitutional powers.

An appeal to the Court of Appeal was dismissed.

CASE DOCUMENTS

Save our Strathbogie Forest Inc v Secretary to Dept of Energy, Environment and Climate Action [2024] FCA 317
Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCAFC 134