Land and Environment Court of New South Wales CITATION : Jarasius v Forestry Commission of New South Wales & Ors [1988] NSWLEC 161 APPLICANT Wendy Maria Jarasius FIRST RESPONDENT Forestry Commission of New South Wales SECOND RESPONDENT Harris-Daishowa (Australia) Pty Limited THIRD RESPONDENT Duncan's Holdings Limited PARTIES : FOURTH RESPONDENT J. & J. Whitehead FIFTH RESPONDENT Tablelands Sawmills Pty Limited SIXTH RESPONDENT Barry Damien Collins and James Andrew Whitehead FILE NUMBER(S) : 40173 of 1987 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Forestry Act 1916 Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 03/04/1988 LEGAL REPRESENTATIVES: JUDGMENT: HIS HONOUR: The applicant is a resident of Wyndham, New South Wales, and a member of an unincorporated association known as the Towamba Valley Catchment Protection Association. Declarations and other orders are sought concerning the lawfulness of licences and approvals granted by the first respondent and related works carried out by it which enable the logging or harvesting of timber in an area near Eden on the lower south coast of New South Wales. The first respondent administers the Forestry Act 1916 and is responsible for all aspects of the management of State Forests and other Crown timber lands in New South Wales. It provides planning, research, supervision, fire control and road construction therein. Harvesting operations are authorised by the issue of various licences and approvals under the said Act by the first respondent. The approvals and works relevant to this application purport to be in accordance with prescriptions in a Management Plan adopted in 1982 for a large area described as the Eden Native Forest Management Area. Harvesting operations in the area are described as "integrated" because they provide both sawlogs for the sawmilling industry and pulp logs for wood chip export. The third and fifth respondents operate sawlog mills at Eden and Bombala, and the second respondent the wood chip mill at Eden. The other respondents are contractors and workers engaged in the logging, harvesting or milling of the timber. The said Eden Native Forest Management Area has an area of approximately 300,000 ha and includes all State Forests and other Crown timber lands therein, except for those sections of State Forest converted to exotic softwood plantation. The said management area extends from Bermagui in the north to the Victorian border in the south, and extends westward from the coast to Bombala and Nimitabel. An agreement between the first and second respondents in 1975 defines the area within which forest products may be converted to woodchips. Outside such area State Forest timber products are only available to the woodchip industry as sawmill waste. This application concerns a significant portion of the said woodchip supply area and comprises: A. Coolangubra, Nalbaugh and Bondi State Forests, Bombala Working Circle ("area 'A'"), having an area of approximately 36,000 ha; and B. Nungatta and Yambulla State Forests and all areas near Mount Waalimma south of Coolangubra State Forest and north of the Victorian Border ("area 'B'"), having an area of approximately 14,000 ha. The area has a long history of timber production and a sawmilling industry was established therein by the beginning of this century. Much of such coastal forests was opened to meet heavy demands for an export sleeper market up until about 1972. Whilst an increase in type and demand for sawlogs occurred on and from the time of the Second World War, until 1969 sawlog operations in the vicinity of Eden remained highly selective because of remoteness and relatively poor quality of species. The second respondent was issued a licence in 1970 for the taking of 510,000 tonnes of clean pulpwood per annum from the said woodchip supply area. This volume was increased in 1973 to 530,000 tonnes p.a. A new agreement was entered into in 1975 providing for the taking of 530,000 tonnes per annum up to and including 1989. A chip mill and loading facility was constructed on the southern side of Twofold Bay. In 1972 a large modern sawmill owned by the third respondent replaced an existing three mills at Eden. At the time pulpwood operations commenced the sawmills in the Eden district had virtually cut out the readily accessible resources. However, the development of pulpwood logging operations has increased the availability of sawlogs and extended the life of the old growth crop. The harvesting of large quantities of lower quality material for pulpwood made it economically possible to provide the necessary access. The integrated logging process is to be distinguished from clear felling, which is a markedly different activity. Not all trees are felled and management techniques are undertaken for the purpose of ensuring regeneration of the forest. The process ensures that the forest will be perpetually able to yield hardwood timber for the production of a range of paper products. All necessary annual timber licences for 1988 have been issued by the first respondent for the taking of timber from the woodchip supply area and each was subject to conditions, and in particular: "4. The licensee shall carry out all operations in accordance with any harvesting plan prepared for or in relation to the area and notified to him. 14. No timber shall be removed from the area for the purposes of this licence unless the timber has been branded with a Commission brand or its removal has been otherwise authorised by the Commission." Subject to the conditions, such licences are authority under the Forestry Act 1916 and Regulations to take a specified volume of timber from a defined area of Crown timber land. In the case of the second respondent the specified volume is 530,000 tonnes in the period of one year and the area is: "... as defined in Agreement dated 9th July, 1975 between the Forestry Commission of New South Wales and Harris-Daishowa (Australia) Pty Ltd." The description of area in the licence for Tablelands Sawmills Pty Ltd is: "Bondi State Forest No.128 Coolangubra State Forest No.547 Nalbaugh State Forest No.129 Yambulla State Forest No.126 Nungatta State Forest No.131 Tantawangalo State Forest No.134 Glenbog State Forest No.149" And the volume: "Sufficient logs to obtain 25,200 cubic metres gross of quota quality logs." The description of area in the licence for Duncan's (Eden) Pty Limited is: "Allan Brook Management Section Timbillica Management Section Lennards Management Section Jingera South Management Section Falkner Management Section Waalimma Management Section." And the volume: "22,630 cubic metres gross volume, subject to review." I note that whilst the said licences are renewed annually, s.27A of the Forestry Act authorises the grant of a timber licence for terms of up to five years without the prior written approval of the Minister, and up to twenty years with such approval. Notwithstanding many requests by me during the hearing, it was never explained why only an annual licence was issued for activities carried out pursuant to a contractual obligation to supply woodchips from the supply area over a term of twenty years. As I understand the practice and procedures, whilst the said licences purport to consent to the taking of timber in identified and very extensive areas, it was nevertheless prohibited until the preparation and approval by the first respondent of the "harvesting plan" for particular compartments pursuant to the above conditions. Although new licences have been issued for 1988, contractors are continuing to work in areas previously approved in harvesting plans and with previous tree marking. Further harvesting plans will be prepared by the first respondent as the need arises. The Environmental Defenders Office acts on behalf of the Towamba Valley Catchment Protection Association, which is comprised mainly of residents adjoining area "A". The first respondent, after a lengthy period of negotiation, has given to it an undertaking to give at least fourteen days notice of the commencement of any further roading and harvesting operations in the said area "A". However, it declined a request to undertake to prepare an environmental impact statement pursuant to the Environmental Planning and Assessment Act 1979 ("the E.P.& A. Act") in relation to such activities. Further correspondence was exchanged and, subsequent to the exhibition of a draft Environmental Impact Statement by the second respondent, the Environmental Defenders Office informed the first respondent that it had instructions that the first respondent was also carrying out "environmentally harmful activities" near Mount Waalimma south of Nungatta State Forest. It also sought undertakings with respect to the said area "B" similar to those already given. Areas "A" and "B" closely identify with an area recommended by the National Parks & Wildlife Service in its detailed submission to the said Draft Environmental Impact Statement as an area it proposed to be reserved from logging and roading activities and included in a National Park. Proceedings were commenced by application to this Court for the following orders: for the issue of timber licences and logging or harvesting of timber within the the grant of an approval for an activity that environment. Impact Statement (EIS) in accordance with Assessment Act has been prepared for the activity. and/or burning off by the first respondent activity likely to affect the environment. with Part V of the Environmental Planning and carrying out of the activity. failed to examine and take into account to the or likely to affect the environment in respect the construction of roads and/or the burning 6. An order that the respondents by themselves, restrained from issuing timber licences or carrying out of any logging, roading, burning activities pursuant to timber licences and areas, until such time as the first respondent examined and considered an environmental impact 7. An order that the first respondent demolish and as to enable the land upon which those roads habitat. the case may require. "... does not provide sufficient detail in relation pulpwood". The Forestry Commission was therefore instructed to prepare a Supplement to the Draft Environmental Impact Statement which was expected to give the public the opportunity to review all aspects of the Eden operations. Officers of the Forestry Commission consulted with the Department of Environment and Planning and, notwithstanding the uncertainty as to the Forestry Commission's intentions, the Department of Environment and Planning treated it as a consultation pursuant to cl.58 of the E.P.& A. Act Regulations. On 1st September, 1986 the Director of the Department of Environment and Planning advised his requirements for an environmental impact statement, specifying nineteen matters which he said must be adequately addressed in the environmental impact statement. The Forestry Commission produced a supplementary report and notified the Department of Environment and Planning that the Director's requirements had been addressed "to substantially meet the requirements". The Department of Environment and Planning disagreed. It concluded that the supplementary report was not an environmental impact statement and did not address the Director's requirements. The Department of Environment and Planning advised the Forestry Commission of the need to prepare an environmental impact statement notwithstanding the preparation of the supplementary report. There was an issue as to whether such letter was received by the first respondent, but I am satisfied that it was received, and was considered by first respondent's staff. The Minister for Planning and Environment is also responsible for the National Parks and Wildlife Service, and on 25th November, 1986 he advised the Premier of the need for "full and rigorous environmental assessment " of the activities. The second respondent proceeded with the preparation of a Final Environmental Impact Statement and on 12th March, 1987 the Minister for Arts, Heritage and Environment observed that the documentation as submitted was (I assume for his purposes) adequate to enable an assessment to be undertaken, and that in normal circumstances it would be his intention to advise it and the Commonwealth Minister for Primary Industry that the objects of the Act had been met. However, in view of various State proposals and environmental requirements which might be sought under the E.P.& A. Act, he declined to make any recommendation. The applicant submits: i) The granting of the said licences and harvesting approvals were in relation to "activities" within the meaning of the E.P.A.Act, and ii) The grant of the approval and the carrying out of logging, burning and roading did not require consent under Part IV of the E.P.& A. Act, and iii) The first respondent is the "proponent" for the "activity" of construction of roads, drains, controlled burning and the construction and use of gravel pits; and iv) The respondents are the "proponents" for the activities of the cutting, snigging and hauling of timber, and the construction of log dumps and associated roads. v) Each approved activity and also the carrying out of the associated works is likely to significantly affect the environment, vi) That the relevant "environment" is both areas "A" and "B" taken either separately or together and with the surrounding areas. vii) That the first respondent failed to comply with the provisions of the E.P.& A. Act in that it: a) Failed to comply with s.111. b) Failed to obtain, exhibit and examine an environmental impact statement in respect of the activities prepared in the prescribed form and manner by Part V and the Regulations. viii) Alternatively, any purported environmental provide adequate and sufficient information to was required the various statements and of the E.P.& A. Act. iii) Claim that in any event they took into account affecting or likely to affect the environment by a) the erection of a building; under land; d) the subdivision of land, and includes any act, matter or thing for which provision may be made under section 26 and which is prescribed for the purposes of this definition, but does not include - e) any act, matter or thing for which development consent under Part IV is required or has been obtained; or f) any act, matter or thing which is prohibited under an environmental planning instrument." The Forestry Commission is responsible for all aspects of the management of the New South Wales Crown timber lands relevant to these proceedings. This responsibility includes planning, supervision, research, fire control and road construction within the forest. Most road construction in Crown timber land is undertaken by the Forestry Commission with its own or hired plant and its own expertise. Clearing of timber for roads is generally confined to about one metre beyond the limit of construction. Beyond this, clearing may also include: - dead or overmature trees, or trees judged to be safety hazards or to threaten stability - clearing of trees to provide sight lines - thinning of trees or removal of groups of trees to allow sun and wind to dry roads - burning of debris and dead trees to one hundred metres each side of roads - construction works include earthworks, including cutting, filling and stabilising - drainage of roads and surrounding areas is essential. Section plans are prepared by the District Forester prior to the commencement of harvesting operations. The section plan consists of a 1:25,000 map showing the location and extent of areas of "special interest" and a report describing those areas and incorporating prescriptions for the presentation or enhancement of their special values. This document is included in an environmental review process by the first respondent to determine whether an environmental impact statement is necessary for such activity. Roads are constructed by the first respondent to approved standards, ranging from primary access roads serving as main carriers for the bulk of all traffic (all weather carriageway of approximately 5.5 metres, formation 7.3 metres), to a single lane all weather road (3 metres carriageway, 4.2 metres). Under the terms of the Agreement with the second respondent, the first respondent must construct one kilometre of road for each 125 ha of forest harvested. Road Projects are evaluated by the first respondent, inter alia, to make a comparison between the estimated cost of the road and the predicted royalty which would result from the sale of timber to be obtained from the areas served by the roading. Fire protection is an important element also in such decision. The first respondent has adopted forest management strategies to facilitate fire protection. The following operations are carried out: 1. Periodic broad area fuel reduction in uncut forest by aerial and ground methods at four to seven year intervals. 2. Localised pre-logging burning at least twelve months prior to logging. 3. Post-log burning of recently forested areas. 4. Periodic burning of regrowth stands at three to five year intervals. The activities involve the harvesting of existing old growth forests over a period of approximately forty years which enables two cuts of sections, called compartments, one at each twenty year interval. Harvesting is carried out in alternate "coupes" in each cut. After the issue of licences under the Forestry Act harvesting plans are prepared by the first respondent on a compartment/logging area basis. The plan comprises a map and a report. The map contains the following information: - contours (10 m interval) - compartment boundary - coupe boundaries - coupes to be logged - coupes to be reserved - filter strips - reserves such as research plots - locations of approved tracks and creek crossings - locations of approved dumps - problem areas - rock, swamp, etc. The report contains the following information: - area of coupes to be logged - estimate of sawlog percentage in those coupes - areas of coupes to be retained - areas of reserves - snig track drain spacing for erosion classes - type of approved creek crossings for each site - width of filter strips - undergrowth type and extent - field marking colour code - whether to be tree-marked or not - order of working - wet weather areas - description of forest type. The harvesting plan forms the basis of the logging operation. "Prescriptions" concerning stream reserves, areas reserved from logging, tree reserves and tree retention requirements are specified therein. The first respondent physically marks trees in coupes for both harvesting and retention prior to the commencement of harvesting. Harvesting operations require five separate operations to take a standing tree from the stump to the mill: 1. Tree is felled by chain saw and trunk trimmed of branches. 2. Logs are dragged (snigged) from the stump to a central log dump. Snigging is by tracks which radiate out from the log dump. 3. At the log dump logs are debarked and cut into appropriate lengths by chain saw. 4. After classification logs are loaded onto trucks destined for sawmill or chipmill. 5. Logs are carted to the mill. Harvested areas do not have uniform levels of disturbance. Undisturbed areas may be a consequence of planned exclusions; e.g. special flora or fauna protection areas, filter strips or seed trees. The contractor is responsible for bark disposal, erosion control along snig tracks and contractor roads, and for removal of litter. Bark is dispersed in heaps throughout the coupes. After logging the first respondent may carry out ripping of the log dump to improve regeneration. It also carries out post-log burning. It is common ground that all of the abovementioned works are activities within the meaning of Part V, and that none include any act, matter or thing for which development consent under Part IV of the E.P.& A. Act DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.