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

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

The primary judge was not satisfied, on the balance of probabilities and applying the correct legal standards, that the planned burns were likely to have a significant impact on the Southern Greater Glider population or the species as a whole, as required by s 18(3) of the EPBC Act. There was insufficient evidence regarding the scale or materiality of impact on hollow-bearing trees, the actual or likely effect on the Glider population, or critical habitat status of the burn areas. No error was found in the application of s 140 of the Evidence Act. The s 43B exemption was not made out on the evidence.

Parties
Appellant: Save Our Strathbogie Forest Inc; First Respondent: Secretary to the Department of Energy, Environment and Climate Action; Second Respondent: Attorney-General for the State of Victoria
Jurisdiction
Australia
Judgment Date
23 October 2024
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Environment Protection and Biodiversity Conservation Act 1999 (cth), Injunctions Under EPBC Act, Significant Impact on Listed Threatened Species, Fuel Reduction Burns, Critical Habitat Assessment
Environmental Law Environment Protection and Biodiversity Conservation Act 1999 (cth) Injunctions Under EPBC Act Significant Impact on Listed Threatened Species Fuel Reduction Burns Critical Habitat Assessment

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Parties

Save Our Strathbogie Forest Inc

Appellant

Secretary to the Department of Energy, Environment and Climate Action

First Respondent

Attorney-General for the State of Victoria

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether proposed fuel reduction burns were likely to have a significant impact on the Southern Greater Glider; whether the exemption in s 43B of the EPBC Act applied; whether the primary judge erred in fact-finding or in application of s 140 of the Evidence Act 1995 (Cth)

Ratio Decidendi

The primary judge was not satisfied, on the balance of probabilities and applying the correct legal standards, that the planned burns were likely to have a significant impact on the Southern Greater Glider population or the species as a whole, as required by s 18(3) of the EPBC Act. There was insufficient evidence regarding the scale or materiality of impact on hollow-bearing trees, the actual or likely effect on the Glider population, or critical habitat status of the burn areas. No error was found in the application of s 140 of the Evidence Act. The s 43B exemption was not made out on the evidence.

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed.
  • Subject to paragraph 3, the appellant pay the first respondent's costs of the appeal, as agreed or taxed.