Environment East Gippsland Inc v VicForests
[2021] VSC 406
•9 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2021 01527
| ENVIRONMENT EAST GIPPSLAND INC (ABN 30 865 568 417) | Plaintiff |
| v | |
| VICFORESTS | Defendant |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 June 2021 |
DATE OF JUDGMENT: | 9 July 2021 |
CASE MAY BE CITED AS: | Environment East Gippsland Inc v VicForests |
MEDIUM NEUTRAL CITATION: | [2021] VSC 406 |
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ENVIRONMENTAL LAW – Application for interim injunction – Timber harvesting in State forest coupes – Whether serious question to be tried that defendant failing to screen timber harvesting operations from view, in breach of statutory forestry management standards – Balance of convenience – Interim injunction granted– Sustainable Forests (Timber) Act 2004 (Vic), s 46 – Code of Practice for Timber Production 2014 – Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2014, cl 5.3.2.3.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Korman | Oakwood Legal |
| For the Defendant | Mr H Redd with Ms R Howe | Johnson Winter & Slattery |
HER HONOUR:
This is an application for an interim injunction restraining the defendant from felling or cutting trees or parts of trees within 20 metres of any road or track in or adjacent to any coupe in East Gippsland Forest Management Area.
Environment East Gippsland Inc, the plaintiff, is an incorporated association involved with environmental issues in East Gippsland with the object of promoting conservation values, sustainability, and environmental awareness. VicForests, the defendant, is a State-owned business responsible for the harvest, commercial sale and re-growing of timber from Victoria’s State forests on behalf of the State of Victoria.
On 11 May 2021 the plaintiff commenced this proceeding seeking declarations and permanent injunctions in relation to two coupes in State forest in East Gippsland, known as Alla Turca and Autumn Sweet.
In particular, the plaintiff alleges that the defendant has breached s 46(a) of the Sustainable Forests (Timber) Act 2004 (Vic) by failing to comply with clause 2.1.1.3 of the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests (‘the Standards’), as defined in s 3 of the Act, in Victoria’s State forests 2014 which are incorporated into the Code of Practice for Timber Production 2014 which requires the defendant to apply to the Secretary to create a Special Protection Zone in or around Alla Turca and Autumn Sweet in relation to the Greater Glider, Petauroides Volans.
They also allege that the defendant breached s 46(a) of the Act by failing to comply with clause 5.3.2.3 of the Standards by failing to leave a 20 metre vegetation buffer when conducting timber harvesting operations at Alla Turca, and were at risk of doing so in Autumn Sweet.
The plaintiff seeks declarations that the breaches have occurred, and permanent injunctions restraining timber harvesting activities in Alla Turca and Autumn Sweet.
In the Statement of Claim filed the same day, the plaintiff seeks permanent injunctions restraining the defendant from certain timber harvesting operations as follows:
(a) In relation to the yellow-bellied Glider – within 564m of any yellow-bellied Glider sighting, as defined in the Statement of Claim, until the defendant applies for, and the relevant Department determines an application for a Special Protection Zone; and
(b) In relation to the Greater Glider – within 564m of any Greater Glider sighting, as defined, until the defendant applies for, and the relevant Department determines an application for a Special Protection Zone; and
(c) In relation to buffer zones – restraining the defendant from ‘carrying out timber harvesting operations, except selective harvesting operations in East Gippsland which are not screened from view from any road or track by means of a minimum 20 metre vegetation buffer excluded from any harvesting activity.’[1]
[1]Statement of Claim filed 11 May 2021.
This present application arises in the context of the operation of the 20 metre buffer zone that it is excluded from harvesting activity. On 25 June 2021, the plaintiff filed a summons seeking the following orders:
1. Upon the plaintiff by its counsel undertaking to abide by any order that the Court may make as to damages, in case the Court should hereafter be of opinion that the defendant shall have suffered any loss by reason of this order which the plaintiff ought to pay, until the final determination of this proceeding or further order the defendant must not, whether by itself, its servants, agents contractors or howsoever, otherwise, within any coupe in the East Gippsland Forest Management Area, fell or cut trees or parts of trees within 20 metres of any road or track in or adjacent to that coupe.
2. Order 1 does not prohibit the defendant from felling or cutting trees or parts of trees necessary to create road access to the interior of a coupe, as shown on the defendant’s published operations map for that coupe on the defendant’s website with URL (including any page within that website) , or in order to address a serious risk to human safety.
3. The defendant pays the plaintiff’s costs of the summons forthwith, on an indemnity basis.
Evidence and filed material
The plaintiff relies on:
(a) Outline of Submissions dated 28 June 2021 with proposed form of orders.
The defendant relies on:
(a) Affidavit of Erin Louise Simmons with Exhibits dated 29 June 2021; and
(b) Outline of Submissions dated 29 June, including proposed orders.
Submissions
At the hearing, the substantive issue in relation to the interim injunction, namely whether there was a serious question to be tried and the balance of convenience, were not in dispute. The only matter before the court was the scope of the orders.
The plaintiff submitted a minute of proposed orders. Under the heading of ‘Other Matters’ the plaintiff proposed the following note:
The plaintiff has given an undertaking to abide by any order that the Court may make as to damages, in case the Court should hereafter be of opinion that the defendant shall have suffered any loss by reason of this order which the plaintiff ought to pay.
The plaintiff seeks the following orders:
1.Subject to Order 2, until the final determination of this proceeding or further order, the defendant must not, whether by itself, its servants, agents, contractors or howsoever otherwise, within any coupe in the East Gippsland Forest Management Area fell or cut trees or parts of trees within 20 metres of any road or track in or adjacent to that coupe.
2.Order 1 does not prohibit the defendant from felling or cutting trees or parts of trees necessary to create road access to the interior of a coupe, as shown on the defendant’s published operations map for that coupe on the defendant’s website with URL (including any page within that website), or in order to address a serious risk to human safety.
3. Liberty to apply.
4. Costs reserved.
The defendant made no submissions as to whether there is a serious question to be tried or where the balance of convenience in this case lies. Rather, the defendant submits that if the court is persuaded to grant further interlocutory injunctive relief it will consent to an injunction restraining it from felling or cutting trees or parts of trees until further order on the terms set out in their own proposed form of order. The relevant parts of the proposed orders are:
1. Subject to order 2 below, from 5:00pm on [insert date of order] until the final determination of this proceeding or until further order, the defendant must not, whether by itself, its servants, agents, contractors or howsoever otherwise, within any coupe in the East Gippsland Forest Management Area, fell or cut trees or parts of trees within 20 metres of any road or track that appears under the heading “East Gippsland Shire” in Schedule C “DELWP PV Registrar of Public Roads” of the 2019 Road Management Plan issued by the Department of Environment Land, Water and Planning and attached to this order in the Schedule.
2.For the avoidance of doubt, nothing in paragraph 2 prevents the defendant from:
(a) undertaking regeneration activities, including regeneration burning;
(b) removing timber already felled; or
(c) felling or cutting trees or parts of trees:
i. as necessary to create road access to the interior of a coupe, as shown on the defendant’s operations map for that coupe, as published on the defendant’s website with URL (including any page within that website);
ii. to permit the construction of snig tracks;
iii. for the creation or maintenance of any road;
iv. for the construction of roadside landings;
v. for the purposes of seed collection; or
vi. in order to address a risk to human safety (including windthrow or when otherwise advised, ordered or directed to by a responsible authority, including the Department of Environment, Land, Water and Planning or Parks Victoria).
Thus, the central orders that the defendant seeks in apparent contradistinction to the plaintiff are:
(a) identification of the roads and tracks the subject of the injunctive relief;
(b) snig track construction;
(c) creation and maintenance of roads;
(d) construction of roadside landings;
(e) seed collection and regeneration; and
(f) safety considerations.
I will consider and analyse below whether the plaintiff’s preference or the defendant’s should be adopted for these orders.
Analysis
For the reasons provided by the plaintiff, I agree that there is a serious question to be tried and that the balance of convenience lies with the granting of an interlocutory injunction. Indeed, although not conceded by the defendant, no submissions were made to the court on this issue.
In their written submissions the plaintiff invited me to make the orders sought in their summons, that is, in short, a 20 metre buffer of trees from ‘any road or track’ in the East Gippsland Forest Management Area. Before me on 30 June 2021 the plaintiff indicated that they were willing to accept that this could be narrowed to ‘any road or track existing at the time of timber harvesting activities in the relevant coupe’. The plaintiff relies on similar orders made by Richards J in proceeding S ECI 2020 02658 in Kinglake Friends of the Forest Inc. v VicForests [2020] VSC 394 on 26 June 2020 (‘the Richards J orders’) and the absence of any application by the defendant to vary them.
The defendant relied on the affidavit of his solicitor Erin Simmons dated 29 June 2021 in which she reports practical and unforeseen limitations of the Richards J orders. Although no application to vary has been made to date, counsel for the defendant submitted that it was actively considering it. In short, the defendant argues that the balance of convenience weighs against the making of an order in the form sought by the plaintiff. According to the defendant certain carve outs to the buffer zones are required for certainty, and to avoid them being unworkable or unduly wide and burdensome than is necessary. I deal with each of these proposed carve outs in turn.
The first uncertainty arises, in the defendant’s view, from the words ‘road or track’, which are too imprecise to enable the defendant to meaningfully identify where a 20 metre buffer would be required. In the absence of clear guidance on what qualifies as a ‘road or track’ the defendant risks inadvertently breaching the injunction and thus being in contempt of court.
The defendant submits that certainty as to the identification of the roads and tracks the subject of the injunctive relief is critical. It is argued that, absent a specific means of identification, there arises considerable uncertainty as to what type of road or track requires application of the 20 metre buffer. It is contended that to provide clarity and operational certainty, the definition of ‘road and track’ should be tied to those roads and tracks in the East Gippsland Shire (which encompasses the East Gippsland FMA) listed in the register of public roads and published in a document titled ‘Road Management Plan 2019’ which is prepared by the Department of Environment, Land, Water and Planning (‘DELWP’) and Parks Victoria.
The defendant submitted that this was ‘an authoritative and clear repository’ of the roads and tracks in the area which would avoid potential disputes between the parties as to what fell within the definition. When asked whether the list encompassed all the roads and tracks in the East Gippsland FMA counsel for the defendant noted that it did.
Counsel for the plaintiff took issue with the use of what he described as a subset of roads and tracks in the area, being those managed by DELWP and Parks Victoria, as at 2019. It was submitted that there was no evidence before me that could satisfy me that there were no other roads and tracks in the area.
The defendant made clear that by using the Department and Parks Victoria reference they intended to exclude ‘community’ or ‘unofficial’ tracks used intermittently by hiking groups, as well as locations marked on GPS software such as Google Earth as tracks that do not or no longer exist on the ground. The plaintiff was willing to narrow the definition to encompass only ‘existing’ tracks. Their counsel submitted, however, that to exclude existing routes enjoyed by members of the community from the definition of a ‘road or track’ simply because they are ‘unofficial’ is to undermine the goal of the 5.3.2.3 of the Standards to preserve the visual amenity of the State forest for those very community members.
Having regard to that purpose, it strikes me that tying the definition of ‘road and track’ to only those managed by the Department and Parks Victoria would unduly limit the paths and routes along which the visual amenity is preserved by way of a 20 metre buffer.
As Richards J identified in Kinglake Friends of the Forest Inc. v VicForests:
the roads and tracks in question are on unreserved Crown land and are available for use by all members of the public – who may well include walkers, trail bike riders, and four-wheel drivers. If the 20 metre buffer is not retained, the landscape along those roads and tracks will be adversely affected for many years.[2]
[2][2020] VSC 394 [43].
The defendant also proposes to create a carve out to permit it to fell and cut trees necessary to create road access to the interior coupe. It was submitted for the defendant, and not contested by the plaintiff, that this order is contemplated by order 2 of the plaintiff’s proposed orders and that it is necessary to permit harvesting contractors and other personnel and machinery to physically access the harvesting component of the coupe.
The second contentious matter before me related to the construction of snig tracks. A ‘snig track’ is defined in the Glossary of the Code of Practice for Timber Production 2014 as “the track along which a log is snigged,” and ‘snigging’ is defined as “the towing or winching of a log from the stump to the landing site, usually along a snig track.” The defendant’s proposed order is envisaged to permit the defendant to fell or cut trees or parts of trees to create snig tracks so that timber may be transported out of the coupe. The plaintiff’s position is that it is one thing to drag fallen timber through a pathway that does not involve cutting down trees, and another thing to fell and cut a pathway in order to drag trees through the buffer. The plaintiff submits that there are alternatives open to the defendant that do not require the buffer to be cut down, including constructing the landing inside the coupe.
I do not consider the defendant’s submissions on this point have much merit. The one example of a snig track presented to the court was in fact a proposed access road. There was no evidence that the inclusion of a carve out for the creation of a snig track is necessary for the defendant to continue its lawful operations.
The defendant also proposes a carve out to permit it to fell and cut trees necessary to create and maintain any road. It is submitted that this may be necessary to:
(a) allow harvesting contractors and other personnel and machinery to physically move within areas of a coupe which are enclosed by a buffer; and
(b) clear regrowth from existing roads which are adjacent to or next to a buffer.
I do not consider this carve out necessary. If the intention of this exception is the maintenance of access roads, I consider it implied in the proposed form of order submitted by the plaintiff. Otherwise, an order loosely phrased to permit the construction or maintenance of ‘any road’ is ambiguous and detached from any purpose for which the road is said to need to be constructed or maintained. Moreover, I note no application has been made by the defendant to alter the order of Richards J on the same terms, indicating that the workability of the order has not been seriously challenged.
The next issue in dispute was the matter of roadside landings. Roadside landings are the area on which the timber is stacked for loading onto trucks. The plaintiff argues these areas are generally located within the harvested area of any given coupe, and not on the roadside. The plaintiff submits that if the defendant’s intention is to put logs on the road and, therefore, bite into the 20 metre buffer by one or two metres, this should mean that the amenity buffer ought to be a bit wider. The defendant argues that operationally the creation of landings on existing roadsides is preferred as it minimises the need to build new roads into coupes which may lead to erosion, stability and sediment risks.
The evidence does not establish that a specific carve out allowing for the construction of roadside landings is necessary to enable the defendant to extract timber from relevant coupes. Nothing has been presented to the court that would indicate that landings are not ordinarily constructed in a harvested area rather than a roadside. When particular circumstances arise that mean that the defendant seeks to construct a landing wholly or partly outside a harvested area, it is reasonably open to the defendant to extend the buffer zone beyond 20 metres in that area.
A further concern of the defendant’s is to preserve an ability to fell trees in the buffer zone for the purposes of regeneration and seed collection. I agree with the plaintiff that the practical impact of regeneration and seed collection activity as envisaged by the defendant would be to raise the possibility that the buffer would be burnt down. If an interim injunction was to permit regenerative burning and seed collection in the buffer it could defeat the purpose of a visual screen as contended by the plaintiff, a matter which is a key subject matter of these proceedings. The defendant has not provided sufficiently compelling evidence or reasons to not allow this aspect of the subject matter of the proceeding to remain pending trial.
The defendant also seeks an exclusion to enable it to respond to safety concerns such as precarious limbs or uprooted trees where they pose a risk to safety or where the Department or other authority directs the removal or feeling of a tree due to occupational or other safety reasons.
I am cognisant again that the purpose of an interim injunction is to maintain the subject matter of the proceeding, namely, the 20 metre buffer. The safety considerations raised by Ms Simmons in her affidavit and pressed by the defendant include precarious limbs, uprooted trees or where the Department directs the defendant to remove trees for occupational hazard purposes. I agree that these safety considerations are not trivial. As the plaintiff asserts, an ability to address these concerns would be included in the phrase, ‘in order to address a serious risk to human safety.’ The omission of the word ‘serious’ would obfuscate the range of activity contained within the exemption, resulting in the possible result that there is felling or cutting trees or parts of trees the subject matter of the proceeding. It also raises the spectre of an interim injunction which lacks the clarity and certainty which the parties and the Court requires for an injunction of this nature. I therefore consider that the form of order sought by the plaintiff ought to be adopted with the inclusion of the instructions in parenthesis sought by the defendant.
In conclusion, I made the following orders:
1. Subject to Order 2, until the final determination of this proceeding or further order, the defendant must not, whether by itself, its servants, agents, contractors or howsoever otherwise, within any coupe in the East Gippsland Forest Management Area fell or cut trees or parts of trees within 20 metres of any existing road or track in or adjacent to that coupe.
2. For the avoidance of doubt, nothing in order 1 prevents the defendant from:
(a) removing timber already felled; or
(b) felling or cutting trees or parts of trees:
(i) as necessary to create road access to the interior of a coupe, as shown on the defendant’s operations map for that coupe, as published on the defendant’s website with URL (including any page within that website); or
(ii) in order to address a serious risk to human safety (including windthrow or when otherwise advised, ordered or directed to by a responsible authority, including the Department of Environment, Land, Water and Planning or Parks Victoria).
3. The plaintiff’s summons dated 25 June 2021 is otherwise dismissed.
4. Liberty to apply.
5. Costs reserved.
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