Environment East Gippsland Inc v VicForests

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8547 of 2009

ENVIRONMENT EAST GIPPSLAND INC	Plaintiff
v
VICFORESTS	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-5, 9-12, 15-18, 23-25 March 2010
DATE OF JUDGMENT:	11 August 2010
CASE MAY BE CITED AS:	Environment East Gippsland Inc v VicForests
MEDIUM NEUTRAL CITATION:	[2010] VSC 335

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ENVIRONMENTAL LAW - Brown Mountain East Gippsland - Proposed logging - Standing of conservation group to sue - Code of Practice for Timber Production - Timber allocation order - Timber Release Plan - Forest Management Plan - Flora and Fauna Guarantee Act Action Statements - Management Procedures - Obligation to comply with requirements of Action Statements and standards in Forest Management Plan in event of detection of specific fauna species during operations - Obligation to comply with precautionary principle - Presence of endangered fauna species - Long-footed Potoroo - Orbost Spiny Crayfish - New taxon of crayfish - Giant Burrowing Frog - Large Brown Tree Frog - Powerful Owl - Sooty Owl - Spot-tailed Quoll - Greater Glider - Yellow-bellied Glider - Square-tailed Kite - Hollow bearing trees - Provision of retained habitat for Long-footed Potoroo - Provision of Special Protection Zone for exceptionally high densities of Greater Gliders and Yellow-bellied Gliders - Compliance with precautionary principle by way of further surveys for Giant Burrowing Frog, Large Brown Tree Frog, and Spot-tailed Quoll - Review of Powerful Owl Management Area scheme and Sooty Owl Management Area scheme - Review of reserves for Spot-tailed Quoll - Conditional injunctions granted - Sections 3, 4, and 22 Forests Act 1958; ss 4, 5, 6, 7, 10, and 31 Conservation Forests and Lands Act 1987; ss 1, 4, 5, 6, 13, 14, 15, 16, 17, 18, 19, 37, 38, 39, 40, 43, 44, and 45 Sustainable Forests (Timber) 2004; ss 1, 3, 4, 7, 8, 11, 17, 19, and 20 Flora and Fauna Guarantee Act 1988 - Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 - Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms D Mortimer SC with Mr R Niall and Ms P Knowles	Bleyer Lawyers Pty Ltd
For the Defendant	Mr I Waller SC with Mr H Redd	HWL Ebsworth Lawyers, acting as agents for Komesaroff Legal Pty Ltd

TABLE OF CONTENTS

A.. Introduction.................................................................................................................................. 5

B.. The parties..................................................................................................................................... 7

C.. Background to the dispute....................................................................................................... 10

EEG’s standing............................................................................................................................ 32

D.. The statutory framework.......................................................................................................... 38

Forests Act 1958........................................................................................................................... 39

Conservation, Forests and Lands Act 1987............................................................................. 45

Sustainable Forests (Timber) Act 2004..................................................................................... 46

The precautionary principle...................................................................................................... 63

The Flora and Fauna Guarantee Act 1988............................................................................... 73

The Forest Management Plan provisions with respect to threatened species................... 78

Management procedures........................................................................................................... 88

Legislative framework summary.............................................................................................. 93

Flora and Fauna Guarantee Act Action Statements............................................................... 99

E... The course of the trial.............................................................................................................. 101

F... The Long-footed Potoroo........................................................................................................ 106

Biology, habitat preferences and distribution....................................................................... 107

Conservation Status.................................................................................................................. 108

Threats........................................................................................................................................ 108

Flora and Fauna Guarantee Act Action Statement.............................................................. 109

Presence / Detections of the Long-footed Potoroo on Brown Mountain......................... 111

The first detection..................................................................................................................... 114

The response to the first detection.......................................................................................... 114

The second detection................................................................................................................ 116

The response to the second detection.................................................................................... 120

The third detection.................................................................................................................... 122

Compliance with the Flora and Fauna Guarantee Act Action Statement........................ 127

G.. The Orbost Spiny Crayfish and the Bonang Crayfish...................................................... 130

H.. The Giant Burrowing Frog and the Large Brown Tree Frog........................................... 135

The Giant Burrowing Frog....................................................................................................... 135

The Large Brown Tree Frog..................................................................................................... 145

The Precautionary Principle and the frogs............................................................................ 150

I.... The Powerful Owl and the Sooty Owl................................................................................ 155

Biology, habitat preferences and distribution....................................................................... 156

The Powerful Owl.................................................................................................................. 156
The Sooty Owl....................................................................................................................... 158

Threats........................................................................................................................................ 159

Powerful Owl......................................................................................................................... 159
Sooty Owl.............................................................................................................................. 160

Forest Management Plan......................................................................................................... 162

Flora and Fauna Guarantee Act Action Statements............................................................. 163

Powerful Owl Management Actions..................................................................................... 164
Sooty Owl Management Actions.......................................................................................... 165

Habitat quality of Brown Mountain coupes......................................................................... 167

Presence / Detections of the Powerful Owl and the Sooty Owl on Brown Mountain... 168

Sooty Owl.............................................................................................................................. 168
Powerful Owl......................................................................................................................... 170

Compliance with the Flora and Fauna Guarantee Act Action Statement........................ 170

Present number of Sooty Owl Management Areas and Powerful Owl Management Areas 172

The precautionary principle and the owls............................................................................ 176

J.... The Spot-tailed Quoll.............................................................................................................. 180

Biology, habitat preferences and distribution....................................................................... 181

Conservation status.................................................................................................................. 183

Presence / Detections of the Spot-tailed Quoll on Brown Mountain................................ 184

Threats........................................................................................................................................ 185

Compliance with the Flora and Fauna Guarantee Act Action Statement........................ 186

The precautionary principle and the Spot-tailed Quoll...................................................... 188

K.. The Greater Glider and the Yellow-bellied Glider........................................................... 192

Biology, habitat preferences and distribution....................................................................... 193

Forest Management Plan Guidelines..................................................................................... 194

Presence / Detections of the Greater Glider and Yellow-bellied Glider on Brown Mountain 197

L... The Square-tailed Kite............................................................................................................ 212

Biology, habitat preferences and distribution....................................................................... 213

Threats........................................................................................................................................ 214

Forest Management Plan......................................................................................................... 215

Habitat quality of Brown Mountain coupes......................................................................... 215

Presence / Detections of the Square-tailed Kite on Brown Mountain.............................. 216

Precautionary Principle and the Square-tailed Kite............................................................. 219

M. Hollow Bearing Trees.............................................................................................................. 221

N.. Conclusion................................................................................................................................. 224

GLOSSARY

ACF Case	Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493
Agreed Map	Map taken from set of maps tendered as Exhibit 12
CFL Act	Conservation, Forests and Lands Act 1987
Code of Practice	Code of Practice for Timber Production
CREG	Concerned Residents of East Gippsland
DSE	Department of Sustainability and Environment
EEG	the Plaintiff
FFG Act	Flora and Fauna Guarantee Act 1988
FFGAS	Action Statement made under the Flora and Fauna Guarantee Act 1988
FMA	East Gippsland Forest Management Area
FMP	East Gippsland Forest Management Plan
FMZ	Forest Management Zone
Forests Act	Forests Act 1958
GECO	Goongerah Environment Centre
LAM36	Email dated 6 October 2009 from Dr Paul Smith, Director, Biodiversity Policy & Programs, DSE to Mr Miezis, Director Forests, Forests and Parks Division, Department of Sustainability and Environment.
the Minister	Minister for Environment and Climate Change
MPR	Management Procedures for Timber Harvesting, Roading and Regeneration in Victoria’s State Forests
Penman Report	Report by Penman and others (2008) Spatial Ecology of the Giant Burrowing Frog (Heleioporus australiacus): implications for conservation prescriptions 56 Australian Journal of Zoology 179
POMA	Powerful Owl Management Area
the Secretary	Secretary to the Department of Natural Resources and Environment
SFT Act	Sustainable Forests (Timber) Act 2004
SMA	Special Management Area
SMZ	Special Management Zone
SOMA	Sooty Owl Management Area
SPZ	Special Protection Zone
Telstra case	Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256
TRP	Timber Release Plan
VicForests	the Defendant

HIS HONOUR:

A Introduction

The Errinundra Plateau lies in the interior of East Gippsland and contains areas of old growth forest which are potentially significant both ecologically and as timber resources.

The plaintiff (‘EEG’) seeks to restrain the logging of four coupes of old growth forest located in the valley of Brown Mountain Creek which lies on the edge of the plateau and in part comprises remnant old growth forest.

EEG claims that the logging proposed will breach the conditions pursuant to which the defendant (‘VicForests’) is permitted to lawfully undertake timber harvesting.

In particular it contends that the proposed logging will breach VicForests’ obligations to provide habitat reserves for endangered species and/or to proceed in accordance with the precautionary principle in respect of habitat preservation for endangered species.

VicForests takes issue with EEG’s standing to sue.

It denies that a number of the endangered species upon the presence of which EEG bases its case have been detected within the Brown Mountain coupes.

VicForests says further that the logging which is proposed will take place within a considered framework of management controls within East Gippsland generally and the Brown Mountain area in particular. That framework balances conservation values on the one hand and ongoing timber production within State forests on the other.

It contends that the prescriptions which have been developed for logging the coupes coupled with the provision of conservation reserves in the surrounding area will adequately protect the conservation values of the area.

It takes the position that it is for the Department of Sustainability and Environment (‘DSE’) to stipulate any further requirements for habitat retention by way of Special Protection Zones (‘SPZ’), and that unless DSE does so, VicForests is entitled to undertake logging in accordance with permissions it currently holds.

VicForests also takes issue with the content of the legal obligations which EEG asserts.

I accept that the approvals which VicForests holds for timber harvesting at Brown Mountain, have been obtained within the overall framework of a scheme of land use allocation which has placed very substantial areas of East Gippsland within conservation reserves. Such reserves effectively surround the valley of Brown Mountain Creek.

I also accept that the approvals have been granted following the application of a considered forestry planning process, which has addressed the characteristics of the coupes in question within a framework of management zones and harvesting prescriptions which seek to minimise impact upon biodiversity values.

Nevertheless I have ultimately come to the view that the evidence establishes the detection of the Long-footed Potoroo within the coupes and that the detections trigger a requirement under the relevant controls for the provision of a Special Management Zone (‘SMZ’) and habitat retention area. The relevant requirement is stipulated in an Action Statement made under the Flora and Fauna Guarantee Act 1988.

I have also concluded that the evidence establishes the presence of exceptionally high densities of Greater Gliders and Yellow-bellied Gliders within the coupes and that the detection of these exceptional densities triggers a further requirement under the relevant controls for the provision of an SPZ or SPZs. The relevant requirement is stipulated in a standard stated in the East Gippsland Forest Management Plan and adopted as a condition by the terms of the relevant approvals for timber harvesting.

I have further concluded that the requirements of the Code of Practice for Timber Production mean that VicForests must comply with the precautionary principle when conducting timber harvesting and that the application of the precautionary principle in accordance with the relevant controls requires:

(a) the completion of further field surveys in respect of two species of endangered frogs – the Giant Burrowing Frog and the Large Brown Tree Frog, and in respect of the Spot-tailed Quoll; and

(b) the completion of re-evaluations currently underway with respect to management area provisions relating to the Powerful Owl and Sooty Owl and in the event of detection of the Spot-tailed Quoll the completion of a review of the system of reserves for the Spot-tailed Quoll within the East Gippsland area.

I have also concluded that injunctions should be granted in order to give effect to the conclusions I have reached with respect to individual species.

Before I explain my reasons for these conclusions and address their consequences I will deal first with some preliminary matters, namely:

· The parties;

· The background to the dispute; and

· EEG’s standing.

I will then analyse the statutory framework within which the dispute arises, examine the evidence relating to the particular species and conservation values upon which EEG bases its case and state my conclusions.

B The parties

EEG was incorporated in August 1991 to take over the activities of an unincorporated association known as Concerned Residents of East Gippsland (‘CREG’). CREG had commenced its activities in 1982 and had involved itself with environmental issues in East Gippsland over the ensuing period.

EEG’s objects include promoting conservation values, environmental awareness about East Gippsland, and sustainability, making representations to government about land use and management, and undertaking research relevant to these matters.

EEG’s activities include the conduct of surveys and research within State forests, production of newsletters containing information about environmental issues in East Gippsland, and involvement in media debate concerning forest issues. It runs ecology camps including camps for substantial numbers of people in the Brown Mountain area. It makes submissions to government at both State and Federal level concerning environmental issues and has been invited by government to comment on relevant environmental issues.

It has about 420 members.

EEG was awarded the Parks Victoria Environment and Sustainability Award in 2008. The purpose of that award was as follows:

Parks Victoria Environment and Sustainability Award
The Environment and Sustainability Award acknowledges individuals, groups and organisations that show a proven passion and dedication to reducing environmental impacts in regional and rural areas. By implementing environmental, land care and sustainability practices on their properties or within the local community, land owners and the broader community have shown increased commitment to raising awareness, knowledge and understanding of environmental issues, which will in turn help to protect the planet’s vital resources. This Award will recognise individuals, groups and organisations that aim to improve our patterns of consumption and environmental behaviour. They are environmentally conscious and understand that future generations will be dependant on the environment, and their actions will encourage sustainable and responsible development in the future.[1]

[1]Viewed at on 15 July 2010.

VicForests is constituted pursuant to s 14 of the State Owned Enterprises Act 1992 by order of the Governor in Council gazetted on 28 October 2003.

The order states in part:

(2)The particular purpose of establishing VicForests is to create a statutory body to undertake the management and sale of timber resources in Victorian State forests on a commercial basis.
(3)The functions of VicForests are to:
(a)undertake the sale and supply of timber resources in Victorian State forests, and related management activities, as agreed by the Treasurer and the Minister, on a commercial basis;
(b)develop and manage an open and competitive sales system for timber resources; and
(c)pursue other commercial activities as agreed by the Treasurer and the Minister.

(4)For the purpose of performing its functions, VicForests may:
(a)acquire or dispose of real or personal property;
(b)enter into contracts and agreements;
(c)employ staff;
(d)do all such other things necessary or convenient to be done for or in connection with, or as incidental to the performance of its functions.

(5)VicForests must operate its business or pursue its undertakings as efficiently as possible consistent with prudent commercial practice.
(6)VicForests must be commercially focused and deliver efficient, sustainable and value for money services.
(7)VicForests must operate in a framework consistent with Victorian Government policy and priorities.[2]

[2]Victorian Government Gazette 2003, No S198, Melbourne, 28 October, 1.

It can be seen that the order emphasises the intention that VicForests operates commercially by reference to the commercial basis of its particular purpose, the requirement that it operate as efficiently as possible consistent with prudent commercial practice, and the further requirement that it must be commercially focussed. As against these matters however it must operate in a framework consistent with Victorian government policy and priorities generally.

The order also provides for the creation of an independent board of directors and a series of financial matters.

VicForests was established after the release in 2002 of the State policy entitled ‘Our Forests Our Future’. That policy referred to the fact that the National Competition Policy Review of the Forests Act 1958, pointed to the need to reinforce the separation between the role of governmental commercial functions and its policy and regulatory roles in forest management.

The policy stated the intention to transparently disentangle the commercial objectives from the regulatory functions of government by the creation of a separate commercial forest service entity.

C Background to the dispute

In the 1980s an area of forest in East Gippsland known as Brown Mountain, which is situated between the Errinundra National Park and the Snowy River and Alpine National Parks, was assessed and listed as part of an old growth forest National Estate Area by the Commonwealth Heritage Commission.[3]
[3]Old growth forest is relevantly defined in the terms adopted by the East Gippsland Forest Management Plan, 23:
Old-growth forest is forest which contains significant amounts of its oldest growth stage in the upper stratum – usually senescing trees – and has been subject to any disturbance, the effect of which is now negligible.

The Brown Mountain area lies within forest block 840 known as ‘Brodribb’ designated as part of the East Gippsland Forest Management Area (‘FMA’). It is coloured green on the map below.

Agreed Map 5

Compartment 502 of forest block 840 contains the four proposed logging coupes in issue in this proceeding, shaded green on the map below.

Agreed Map 6

The Brown Mountain coupes lie within a valley approximately 450 hectares in area down which Brown Mountain Creek runs from south to north. The coupes fall within a triangular area generally bounded by Legges Road to the west, Errinundra Road to the east and the vicinity of Postman Track to the south. Coupe 26 is towards the northern end of the triangular area, coupes 15 and 19 extend across the mid portion of the triangular area and coupe 27 adjoins the head of Brown Mountain Creek at the base of the triangular area. Coupe 27 is traversed by Postman Track and lies both on the north and the south sides of the road.

Coupe 15 is 43.4 hectares in area and coupe 19 is 21.5 hectares. Coupe 26 is 21.4 hectares in area and coupe 27 is 5 hectares.

The northern and southern boundaries of both coupes 15 and 19 are substantially defined by subsidiary water courses running into Brown Mountain Creek. The coupes are outlined in blue on the map below.

The map also shows the topography of the area, the relationship of the coupes to Brown Mountain Creek, the access road network and the adjoining areas (coloured in two shades of pink) which are protected from logging.

An area reserved at the northern end of the triangular area which I have described is known as the Gap Scenic Reserve.

Agreed Map 12

More detailed maps of the coupes were produced in evidence by Mr Lachlan Spencer but it is unnecessary to reproduce them.

Since the 1980s, the logging of the Brown Mountain area has been the matter of public controversy.

Nevertheless extensive logging has occurred of the area to the east of the triangular area I have described. Substantial logging has also occurred within that triangular area save for the coupes now in issue, as well as within the area to the west which is now subject to reservation for conservation purposes.

The map below shows the areas previously logged coloured blue. The darkest colour blue denotes areas logged since 2000. The next darkest area was logged in the 1990s and the three successively lighter shades of blue denote logging in each decade back to the 1960s.

Agreed Map 11

In the 1990s, local residents including members of EEG marked out a walking track at Brown Mountain which they named ‘The Valley of the Giants Old Growth Forests Walk’.[4] This track traversed coupes 15, 19 and 20. EEG has utilised this walk for the purpose of ecology camps in the Brown Mountain area. The walk is delineated on the map below by a black dashed line. The walk ran over the three coupes in the middle section of the Brown Mountain Creek valley. The map also numbers the coupes in issue more clearly.[5] During the hearing of the proceeding the coupes were referred to by the last two digits in the numbers attached to them.

Exhibit JR10: Map taken from the affidavit of Jill Redwood sworn 28 August 2009

[4]Also referred to in evidence as the ‘Valley of the Giants Walk’.

[5] Although the reference to coupe 840-502-0009 should be ignored.

In December 1995, the East Gippsland Forest Management Plan (‘FMP’) was published, which provided a management framework for timber harvesting in East Gippsland.

Conservation parks and reserves were established both to the immediate north and south of the triangular area containing the coupes now in issue.

In 2006, the State Government committed itself to the amplification of the conservation parks and reserves within the broader area, as part of the Labor Party’s electoral policy.

In April 2007, EEG participated in a public consultation process and objected to timber release plan (‘TRP’) proposals relating in part to the Brown Mountain area. The objection stated in part:

The three Brown Mt coupes are extremely controversial. This is in the area that is being considered for the Old Growth Walks. The forest between Legge [sic] Road and Errinundra Road contains a high number of large old trees which have been photographed and GPSd. The proposed walk is perfectly situated to allow easy access for visitors wanting to experience old growth. This main access to the Errinundra National Park must not be clearfelled. We ask that these coupes be taken right off the schedule. The forest here will become another hot spot for direct action if they are to receive bulldozer treatment.[6]

[6]EEG ‘Comments on TRP amendments – April 2007’ Submission in response to request for public comment on TRP amendment, 17 May 2007.

In July 2007, a TRP was approved and logging of coupe 20 (immediately to the south of coupe 19)[7] commenced in October 2008. The coupe was named ‘the Walk’ by officers of VicForests. The logging of coupe 20 was the subject of on-site protest and of other protest and submissions to the State Government. By January 2009, coupes 15 and 19 were scheduled to be logged.
[7]See the previous map above.

In January 2009, Ms Jill Redwood, a committee member of EEG, emailed the results of a fauna survey carried out at Brown Mountain to two officers of DSE. The report detailed the results of nocturnal surveys for arboreal mammals and large forest owls carried out in coupe 15 by Dr Rohan Bilney.

The survey detected an exceptionally high density of arboreal mammals including Greater Gliders and Yellow-bellied Gliders, and a number of owl species including the Powerful Owl and Sooty Owl.

Other survey information relating to the Orbost Spiny Crayfish was also supplied to DSE. In late January 2009, Ms Redwood was advised by Dr Stephen Henry, East Gippsland Biodiversity Manager, DSE that a moratorium had been placed on logging at Brown Mountain.

Between January and March 2009, DSE undertook surveys at Brown Mountain. The results of these surveys were summarised in a written report completed in April 2009 but not made public until August 2009. The conclusions of the report were:

The survey program produced the following key results:
1Sufficient Greater Gliders and Yellow-bellied Gliders were detected to achieve the thresholds for a high density population of these species as stipulated in the ‘Conservation Guideline – Arboreal Mammals’ within the East Gippsland Forest Area Management Plan.
2.No Long-footed Potoroos were detected.
3.No Orbost Spiny Crayfish were detected.

Spotlight surveys were conservative estimates of the numbers of animals actually present. The consistent detection of high numbers of Greater Gliders and Yellow-bellied Gliders confirms that the site supports a high density population.
Given the relatively short amount of time available for the surveys of Long‑footed Potoroo and the presence of nearby records and suitable habitat, it is possible that a more intensive and longer survey may record the species at the site.
Further survey may also detect Orbost Spiny Crayfish, however, the habitat was considered to be sub-optimal for the species.[8]

[8]Henry, Stephen and Mitchell, Tony Survey for arboreal mammals, Long-Footed Potoroo and spiny Crayfish in proposed logging coupes 840-502-0015 and 840-502-0019, Brown Mountain Creek Catchment, Brodribb Forest Block, Errinundra Plateau January-March 2009, DSE, August 2009, 10-11.

On 29 January 2009, EEG sent a letter to the Minister for Environment and Climate Change (‘the Minister’) requesting that an interim conservation order be made pursuant to s 26 of the Flora and Fauna Guarantee Act 1988 to conserve critical habitat of the Long‑footed Potoroo, Spot‑tailed Quoll, Sooty Owl, Powerful Owl and Orbost Spiny Crayfish at Brown Mountain. The request foreshadowed the supply of a report from Dr Charles Meredith in support of the application. Further letters advising of this request were sent to the Secretary of DSE and the Federal Minister for Environment, Heritage and the Arts.

On 15 April 2009, EEG received a letter from Mr Cameron McDonald, Director Strategy and Corporate Affairs at VicForests, which referred to the survey submitted on behalf of EEG and responded in the following terms:

As you would be aware, VicForests’ timber harvesting operations and associated activities must be undertaken in accordance with all relevant legislation, the Allocation to VicForests Order 2004 (as amended) and the approved Timber Release Plan (as amended). Harvesting therefore only takes place in areas considered by DSE to be ‘available’, which includes the coupes in which your nocturnal surveys have been undertaken.
I assume the purpose of these surveys is to demonstrate that the density of arboreal mammals has exceeded the trigger level outlined in the East Gippsland Forest Management Plan (EGFMP) and therefore these areas should be declared Special Protection Zones (SPZs).
It is important to consider the following points before such a decision is taken:
•The EGFMP has two main aims – the balanced use and care of State forest and most significantly, the provision of an environment in which native flora and fauna can flourish, while the region’s timber industry can continue to invest and add value to its products. All the management strategies, the zoning scheme and other actions described in Plan are designed to fulfil these two main aims.
•VicForests considers that the reservation of a comprehensive, adequate and representative area for biodiversity conservation as outlined in the EGFMP to be a very effective method to provide both a high level of biodiversity protection as well as some certainty with respect to the area and volume available for timber production, and therefore to the industries and communities which depend on that area and volume.
•Regarding the implementation of ‘Conservation Guideline for Arboreal Mammals’ in the EGFMP, the contribution of national parks and other conservation reserves must be taken into account towards meeting the needs of threatened or sensitive species.
•The Plan also states, ‘Any refinements of management guidelines or to the zoning scheme must also be made in an objective, systematic manner to avoid disruption to the forward planning and conduct of timber harvesting. A multi-disciplinary approach is essential to this process’.
•The EGFMP provides DSE with flexibility regarding refinements or amendments to the Plan’s zoning scheme – in other words, DSE does not automatically have to create an SPZ if any triggers set in the Conservation Guidelines are met.
•The Regional Forest Agreement (RFA), to which the Victorian Government is a signatory, requires that if amendments to the Comprehensive, Adequate and Representative reserve system are made, an equivalent area must be made available for harvesting.

Relating these points to the areas in question, VicForests considers that the enormous area of park and reserves in that part of the East Gippsland Forest Management Area (FMA), including much of the additional 41,000 hectares of icon areas and old growth forest to be added to the reserve system as part of the ALP 2006 election policy, to be more than sufficient for the long-term protection of the species listed in your surveys.
About 78% of the publicly-owned native forest in East Gippsland FMA will not be harvested, as it is either reserved or is unsuitable for timber harvesting. The remaining 22% of the forest is used to support the industry, workers and communities in East Gippsland and further afield, and an industry which produces carbon-friendly, renewable products.
As DSE is responsible for the overall management of State forest, including the creation or amendment of forest zoning, any decision regarding the creation of new SPZs as a result of survey findings rests with DSE. In this case, VicForests will, however, be arguing very strongly that there is no basis for creation of new SPZs in these areas due to the very large system of dedicated reserves nearby, reserves that contain significant areas of habitat similar to that found in the areas you surveyed. VicForests will also argue that the Plan does not mandate the creation of additional SPZs, and that if an SPZ is created, the RFA requires that an equivalent area must be made available to the industry.[9]

[9]Letter from Cameron MacDonald to Jill Redwood, 15 April 2009.

On 25 April 2009, EEG sent a letter to the Minister and to VicForests joining issue with the contents of Mr McDonald’s letter. Further correspondence ensued between EEG and the Minister during May, July and August 2009.

On 18 June 2009, a briefing paper prepared by Mr Lee Miezis, Director Forests, Forests and Parks Division, DSE, was submitted to the Minister by Dr Appleford, Executive Director, Forests and Parks Division. It was also endorsed by the Secretary of the Department, Mr Peter Henry. The briefing note recommended that no SPZ be created at Brown Mountain Creek but timber harvesting be allowed under modified prescriptions.

On 12 August 2009, EEG forwarded reports from Dr Meredith to the Minister and to the Secretary of DSE in support of its application that an interim conservation order be made. The report concluded that the study area at Brown Mountain constituted critical habitat for the Long-footed Potoroo, the Sooty Owl, the Orbost Spiny Crayfish and the Large Brown Tree Frog.

On 19 August 2009, the solicitors for EEG sent a letter to the Minister expressing concern at the Minister’s failure to make an interim conservation order and requesting notice before any logging took place at Brown Mountain.

On 20 August 2009, a letter was received by EEG from an officer of DSE advising that the question of an interim conservation order was under consideration.

EEG replied with a further letter to that officer pressing its case for an interim conservation order.

On 21 August 2009, the Minister released a media statement recording a decision to create further reserves in the Brown Mountain area, but to otherwise permit the logging of a number of contentious coupes subject to additional habitat protection measures. This decision was directly responsive to the briefing paper prepared by Mr Miezis which I have referred to above.

PERMANENT PROTECTION FOR BROWN MOUNTAIN AREA
Friday, 21 August 2009
The Brumby Labor Government will protect a further 400ha of the Brown Mountain area, including the mountain summit, as part of the establishment of old growth and icon reserves in East Gippsland, Environment Minister Gavin Jennings said today.
Mr Jennings said that the inclusion of the large area around Brown Mountain would form part of a significant, unbroken link between the Errinundra and Snowy River national parks.
‘This area of Brown Mountain contains significant natural values, including old growth forests, that will now be protected forever,’ Mr Jennings said.
Mr Jennings said the Brumby Labor Government would finalise the establishment of more than 41,000ha of new conservation reserves in East Gippsland, providing an unprecedented level of protection for old growth and icon forests in Victoria.
The 400ha of new protected area at Brown Mountain would be in addition to the 100ha already protected as part of The Gap Scenic Reserve, incorporating the northern slopes of the Mountain.
‘This will be a wonderful outcome for the protection of these magnificent forests. However, the Government also recognises that, with the new levels of protection, comes a responsibility to ensure the timber industry has a sustainable supply of timber into the future,’ Mr Jennings said.
Mr Jennings said an area containing a number of contentious timber harvesting coupes around Brown Mountain Creek, to the east of Brown Mountain, would remain available to harvesting as they did not meet the standard of old growth warranting inclusion in the reserve.
He said VicForests would be allowed to recommence timber harvesting at Brown Mountain under modified conditions designed to provide greater protection to the area.
Mr Jennings said the significant additional habitat protection measures, including extra wide 100 metre streamside buffers and the protection of hollow-bearing habitat trees identified by biodiversity officers, would be put in place at Brown Mountain Creek area even though no threatened species were found during fauna surveys of the area.

‘Biodiversity experts conducted a series of surveys in the area to determine if any threatened species were present’, he said.
‘The surveys conducted by DSE staff included specific surveys for Long-footed Potoroo and Orbost Spiny Crayfish. They found no threatened species, despite claims to the contrary.’
Mr Jennings said the biodiversity teams did locate a high-density population of Greater Gliders and Yellow-bellied Gliders along Brown Mountain Creek.
‘These species are both common across Victoria – and extend throughout the eastern States up to Queensland – and suitable habitat is well represented in conservation reserves in Victoria,’ he said.
Mr Jennings said the gliders’ presence triggered a DSE review to determine the need for the creation of a Special Protection Zone to protect the species’ habitat.
This review was required, under the East Gippsland Forest Management Plan, to consider whether adequate protection is already provided to the gliders’ habitat within the existing reserve system.
‘In this case DSE found that suitable habitat for the gliders was already adequately protected and that creating a Special Protection Zone was not required,’ Mr Jennings said.
‘I am confident that the extra streamside buffers, which represent a five-fold increase in the usual buffer width will provide significant protection to the populations identified by the surveys as the majority of animals were found within 100 metres of the creek.’
Mr Jennings acknowledged that, more broadly, the system of conducting pre-logging surveys in proposed harvesting coupes in Victoria needed to be improved and that DSE was working with VicForests – the agency responsible for conducting the surveys – to significantly improve its processes.
‘Put simply, there is not enough pre-logging assessments being done and I am committed to doing what I can within my responsibilities to see that situation improve,’ he said.
The Brown Mountain Survey Report can be found at: for Environment and Climate Change ‘Permanent Protection for Brown Mountain Area’ (Media Release, 21 August 2009).

Ms Redwood subsequently had a telephone conversation with Mr Barry Vaughan, Regional Manager, VicForests. She asked him when VicForests proposed to log at Brown Mountain. In substance he stated that the decision whether or not VicForests could log Brown Mountain was a matter in the hands of DSE. Logging at Brown Mountain was under a moratorium, that is, suspended until further notice. Despite the Government’s media release, VicForests had not formally been given the go ahead from DSE. DSE would give the green light and then VicForests would schedule it in as part of an annual plan for a contractor. The decision when to log depended on the season and VicForests’ annual timber production requirements. VicForests did not have logging of Brown Mountain pencilled in as immediate, and he would be reluctant to inform Ms Redwood when it would be logged, because to do so would result in protest activity.

EEG then issued the present proceedings and having failed to obtain undertakings from VicForests that it would not proceed to log the Brown Mountain coupes, sought interlocutory injunctive relief. An interlocutory injunction restraining logging was granted by J Forrest J on 14 September 2009.[11]
[11][2009] VSC 386.

Following the decision by the Minister to increase conservation parks and reserves in the vicinity of Brown Mountain a substantial new reserve was created to the west of the triangular area in which the Brown Mountain coupes are located. Reserves to the east were also augmented. In consequence, the Brown Mountain coupes now sit within an area which is ringed by conservation reserves. The two maps below show the situation before and after November 2009 respectively. The areas shaded light and dark pink comprise areas protected from logging.

Mr Miezis stated that one of the criteria for the ‘icon’ reserves created in November 2009 was that approximately 50 per cent of the new reserve contain old growth forest. The area containing the Brown Mountain coupes did not meet this criterion. It contained approximately 30 per cent. The map which records the history of logging in the area, confirms this view might be taken.

Mr Miezis also made clear that 2009 was a year of exceptional difficulty for DSE because of the consequences of the Black Saturday bushfires. I accept this to have been so and the steps taken by DSE and the Minister occurred in this context.

Agreed Map 7

Agreed Map 8

The area numbered 502 shown in Agreed Map 8 above comprising a new reserve, includes the western ridge of the valley containing Brown Mountain Creek and this ridge includes Brown Mountain itself.

Agreed Map 13 below shows the 100 metre linear buffer area along Brown Mountain Creek referred to in the Minister’s statement. It can be seen that it includes the central portion of coupe 26, the lower portions of coupes 15 and 19 and does not extend into coupe 27.

Because previous coupes adjacent to Brown Mountain Creek have been logged to a 20 metre setback, the 100 metre buffer contains substantial areas which are not old growth forest.

Agreed Map 13

The underlying dispute between the parties can thus be characterised as one as to whether the conservation measures that have been implemented in respect of the Brown Mountain coupes and the surrounding area are adequate to meet the requirements of the regulatory system governing timber harvesting, which address the preservation of conservation values and in particular the protection of endangered species. Before turning to the details of that regulatory scheme and of the evidence relating to specific conservation values, it is necessary to deal with the preliminary question of EEG’s standing.

EEG’s standing

VicForests contends that EEG does not have standing to bring these proceedings.

In Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd, Gummow J described the historical basis of the engagement of equity in matters of public law. Such proceedings entail ‘the use of the auxiliary jurisdiction in equity to fill what otherwise were inadequate powers to secure the compliance by others with particular statutory regimes or obligations of a public nature.’[12]
[12](2000) 200 CLR 591, 628-9.

The standing to bring such a proceeding is now understood to be derived from a special interest in the subject matter of the litigation. The underlying principle was stated by Gibbs J in Australian Conservation Foundation v Commonwealth (‘ACF Case’):

It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.[13]

[13]ACF case (1980) 146 CLR 493, 526.

His Honour also said:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.[14]

[14]Ibid (1980) 146 CLR 493, 530-1.

In Onus v Alcoa of Australia Ltd,[15] members of an Aboriginal community sought to prevent Alcoa from carrying out works which could interfere with Aboriginal relics. Members of the community were held to have standing on the basis of a ‘special interest’ in the relics that was greater than that of other members of the public and greater than that of other persons of Aboriginal descent who were not members of the Gournditch-jmara.
[15](1981) 149 CLR 27.

Stephen J stressed that it was necessary to conduct a curial assessment of the concern which a plaintiff has with particular subject-matter and the closeness of the Plaintiff’s relationship with that subject matter.[16] The absence of a material interest in the subject matter, in the sense of property or possessory rights, would not be a bar to standing.[17]
[16]Ibid, 42.
[17]Ibid.

However, Gibbs CJ cautioned:

The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian.[18]

[18]Ibid, 37.

In North Coast Environment Council Inc v Minister for Resources,[19] Sackville J held that the North Coast Environmental Council had standing under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to challenge a decision to grant an export licence on the basis that the Council:
[19](1994) 55 FCR 492.

· was the peak environmental organisation in the north coast region of NSW, having 44 environmental groups as its members and its activities related to the areas affected by the wood-chipping;

· was recognised by the Commonwealth for a number of years as a significant and responsible environmental organisation and had received regular financial grants;

· was recognised by the government of NSW as a body that should represent environmental concerns on advisory committees;

· conducted or co-ordinated projects and conferences on matters of environmental concern for which it had received significant Commonwealth funding;

· had made submissions on forestry management issues to the Resource Assessment Committee and funded a study on old growth forests.

Sackville J undertook a survey of the development of the authorities on standing since the ACF Case[20] and identified a number of principles: [21]
[20]Ibid, 502-511.
[21]Ibid, 512.

· A plaintiff must demonstrate a ‘special interest’ in the subject matter of the action. A ‘mere intellectual or emotional concern’ for the preservation of the environment is not enough to constitute such an interest. The asserted interest ‘must go beyond that of members of the public in upholding the law … and must involve more than genuinely held convictions’.

· A plaintiff may be able to demonstrate a special interest in the preservation of a particular environment. If it does so an intellectual or emotional concern is no disqualification from standing to sue.

· An allegation of non-compliance with a statutory requirement or an administrative procedure is not enough of itself to confer standing.

· The fact that a person may have commented on environmental aspects of a proposal as part of an environmental assessment process does not of itself confer standing to complain of a decision based on that process.

· An organisation does not demonstrate a special interest simply by formulating objects that demonstrate an interest in and commitment to the preservation of the physical environment.[22]

[22]Subsequently, in Tasmanian Conservation Trust v Minister for Resources (1995) 55 FCR 516, Sackville J applied these principles to a broadly analogous basket of circumstances and held that the Trust had standing to challenge a decision to grant an export licence in respect of woodchips.

In Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd,[23] Gaudron, Gummow and Kirby JJ stated:

The first question is why equity, even at the instance of the Attorney-General, would intervene. The answer given for a long period has been the public interest in the observance by such statutory authorities, particularly those with recourse to public revenues, of the limitations upon their activities which the legislature has imposed. Where there is a need for urgent interlocutory relief, or where the fiat has been refused, as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer, required by the persistence in modified form of the Boyce principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation. [24]

[23](1998) 194 CLR 247.

[24]Ibid, 267.

In the present case I am satisfied that EEG has a special interest in the necessary sense to give it standing by reason of the following factors:

(a) The unincorporated predecessor of EEG was represented in the consultative process undertaken with respect to the formulation of the FMP. Since the formulation of the FMP it has engaged in an on-going basis with considerations arising from the terms of the FMP including specifically those relating to the conservation of endangered species.

(b) EEG has been and continues to be an actual user of the coupes comprising ‘The Walk’, in a manner and to a degree which gives it a greater degree of interest in those coupes than that of members of the public.[25]

(c) EEG made submissions to DSE which resulted in a moratorium with respect to logging at Brown Mountain in 2009. The case is in a fundamental sense concerned with the question of whether that moratorium should continue.

(d) Government has recognised EEG’s status as a body representing a particular sector of the public interest by financial grant and by the award previously referred to above.[26]

[25] Cf Fraser Island Defenders Organisation v Hervey Bay Town Council [1983] 2 Qd R 72.

[26][23] above.

It is desirable to elaborate the first of the factors I have referred to by reference to the FMP itself. The foreword to the FMP states:

Production of this Plan is an example of integrated regional planning; based on a wide range of expertise, from within and outside the Department. An advisory committee drawn from the local community has helped review options and given valuable comments on drafts.[27]

[27]Department of Conservation and Natural Resources ‘Forest Management Plan for the East Gippsland Forest Management Area’ December 1995, iii.

The FMP goes on to state that the plan was prepared by a multi-disciplinary project team comprising DSE officers. It then states the project team was guided by the East Gippsland Forest Management Area Advisory Committee comprising some 12 representatives of different community organisations. The second representative named is Leonie Cameron of Concerned Residents of East Gippsland. The FMP records that the Advisory Committee met 21 times to discuss major issues and ‘has played an important role in ensuring that the interests and opinions of the community have been considered’.[28] Although cross-examination of Ms Redwood was directed to questioning the directness of the link between CREG and EEG, I accept her evidence that EEG is the incorporated vehicle of what formerly constituted CREG. This is corroborated by the Incorporation Association extract of EEG which records CREG was a former name of EEG and EEG was simultaneously registered under both names from August 1991 until June 2006. In turn I accept that EEG is a body that has since its inception had a special interest in the FMP.
[28]Ibid, 3.

The second factor was elaborated by Ms Redwood both in evidence and in her first affidavit. In particular Ms Redwood described EEG’s involvement in organising and running annual or biennial ‘Forests Forever’ ecology camps in the critical habitat areas which are the subjects of this proceeding. The camps are attended by over 100 people, with up to around 100 more people being turned away for lack of capacity and seek to educate participants about natural history and threats to Victoria’s forests. As part of the camps, EEG leads participants on ‘The Valley of the Giants Old Growth Forests Walk’, referred to as ‘The Walk’ by VicForests staff. The walk traverses coupes 19 and 20. It may be noted that the very naming of coupe 20 by VicForests staff as ‘The Walk’ reflects the association of the coupe with the use of the walk, particularly by EEG. Revenue raised through the camps contributes to EEG’s annual operating costs.[29]
[29]Affidavit of Jill Redwood sworn 28 August 2009.

Ms Redwood also gave evidence that EEG has carried out surveys in the area since 1992, the results of which have been submitted to government agencies.

The third factor has been summarised in the history of the dispute I have set out above and will be further elaborated in my judgment on the facts of the matter relating to particular species. The submissions to DSE were made in circumstances where the FMP envisages protection will be provided to the species identified in the submission. The prescriptions on logging subsequently imposed were directly responsive to the process triggered by surveys from EEG. This case is in turn fundamentally concerned with the adequacy of these prescriptions.

As to the fourth factor, although ‘limited’ and ‘sporadic’, EEG has received government funding:

(a)in 1990 to produce a ‘Bonang Highway Tour Leaflet’.
(b)$5,000 in 1997 from the Department of Prime Minister and Cabinet to produce an ‘Illustrated Guide to the RFA Process’.
(c)about $500 in 2002 from the federal government to attend monthly meetings at the East Gippsland Regional Forest Agreement Reference Group.[30]

In cross-examination Ms Redwood acknowledged that the funding has been largely from the Commonwealth, however stated that she believed that (a) was funded by the State government.

[30]Affidavit of Jill Redwood sworn 17 November 2009, 2.

The combined effect of the above matters is to give EEG a special interest in the subject matter of the proceeding to the requisite degree.

It follows that EEG’s interest in the enforcement of the law with respect to proposed logging at Brown Mountain does not simply derive from intellectual or emotional concern, nor from its ostensible objects. Although it is not a peak environmental association of the type with which Sackville J was concerned in the two cases I have referred to above, it does have a special interest in the implementation of the FMP and the enforcement of the statutory framework governing logging at Brown Mountain Creek.

D The statutory framework

The relevant statutory framework is labyrinthine and comprises a network of interrelated provisions contained in the Forests Act 1958 (‘Forests Act’); the Conservation, Forests and Lands Act 1987 (‘CFL Act’); the Sustainable Forests (Timber) Act 2004 (‘SFT Act’); allocation orders and TRPs made under the SFT Act; a Code of Practice for Timber Production (‘the Code of Practice’) made enforceable under the CFL Act but given effect under the SFT Act; a forest management plan as contemplated by the Code of Practice but also constituting a working plan under the Forests Act; Management Procedures (‘MPR’) as contemplated by the Code of Practice; the Flora and Fauna Guarantee Act 1988 (‘FFG Act’); and action statements under the Flora and Fauna Guarantee Act 1988 (‘FFGAS’).

It is necessary to elaborate this framework before returning to the facts.

Forests Act 1958

The Brown Mountain coupes are located within a State forest. More particularly they are contained within a reserved forest within the meaning of s 42(1) of the Forests Act.

That Act provides by s 4 that all forest produce in a State forest is the property of the Crown. Section 4(2) provides that property in forest produce only passes from the Crown to another person in accordance with the Forests Act. Forest produce is broadly defined by s 3 of the Forests Act and includes all parts of trees.

Section 22 requires the preparation of working plans for State forests:

(1)The Secretary[31]—
[31]Forests Act 1958, s 3 provides that ‘Secretary’ means the body corporate established by Part 2 of the Conservation, Forests and Lands Act 1987.
(a) shall prepare and cause to be put into operation working plans with respect to the control, maintenance, improvement, protection from destruction or damage by fire or otherwise, and removal of forest produce in and from each State forest and any part thereof;
(b) may from time to time revise any such working plan and shall cause the revised working plan to be put into operation; and
(c) forthwith after the preparation or revision of any such working plan shall submit the same to the Minister.

(2)Any such working plan shall specify the detailed plans for the protection of the area from fire and may specify—
(a) the maximum area from which forest produce may be taken annually;
(b) the maximum quantity of forest produce that may be disposed of annually;
(c) the silvicultural operations necessary to ensure the regeneration of the best species of forest trees on areas which have been cut over; and
(d) such other matters as the Secretary considers appropriate.

The Forests Act defines ‘working plan’ as meaning a detailed scheme for the control and regulation of the working of a forest or any part thereof and for ensuring the maintenance of a sustained yield of forest produce from such forest. The relevant working plan in the present case is constituted by the East Gippsland Forest Management Plan of December 1995 (as amended).

The FMP seeks to provide a management framework for the State forest within East Gippsland. The stated purpose of the FMP is to establish strategies for integrating the use of State forest for wood production and other purposes, with conservation of natural, aesthetic and cultural values across the whole FMA.

It is stated at two points that the plan ‘applies’ until 2006, but Mr Waller made clear in final address that VicForests does not contend that the FMP has lapsed.

The summary at the commencement of the FMP outlines the objectives which it seeks to integrate.

SUMMARY
Publicly owned forest in East Gippsland covers approximately 1 million hectares in a vast, contiguous tract stretching from Bass Strait to the Australian Alps and from south-eastern New South Wales to Central Gippsland. State forest comprises 640 000 ha of this land and has an important role in complementing the management of national parks and other reserves for conservation, recreation and a growing tourism industry. State forest also supplies a third of Victoria’s annual sawlog harvest and protects catchments from which local communities draw clean water supplies.
The major challenges addressed in this Plan are to meet a number of conservation and resource use requirements, including the Flora and Fauna Guarantee Act 1988, the National Forest Policy Statement, current sawlog licence commitments to the timber industry and the sustainable yield requirements of the Forests (Timber Harvesting) Act 1990. The strategy used to address these challenges has three main strands:
Conservation guidelines specify minimum levels of planned protection to be provided for natural values in State forest, taking into account the extent of those values in national parks and conservation reserves. They provide a systematic basis for zoning decisions in State forest and therefore introduce stability into the process for balancing conservation with timber production goals.
Forest management zones set priorities and permitted uses in different parts of State forest. The Special Protection Zone will be managed for conservation, and timber harvesting will be excluded. The Special Management Zone will be managed for specific features while catering for timber production under certain conditions. The General Management Zone will cater for a range of uses with timber production as a high priority.
A process for reviewing management strategies and zones will enable progressive refinement of the Plan in response to new information and developments in natural resource management.
This strategy provides a network of protected areas that complements the system of national parks and conservation reserves in East Gippsland, a framework for sustainable use of the forest for timber production and other purposes, and a process for adapting to change in a systematic, orderly manner. In doing so, this Plan will fulfil the major requirements of the National Forest Policy Statement.
Specific initiatives
Conservation of biodiversity
·     Minimum levels of protection of 30% to 90% have been set for each of 44 vegetation classes according to their rarity in the landscape. Where conservation reserves do not meet these targets, areas of State forest have been protected to fill the gap.
·     All heathlands and buffering vegetation of 40 m width have been included in the Special Protection Zone. Potentially species-rich vegetation mosaics, which include the hinterlands of many heathland areas, have also been included in this Zone.
·     All rainforest stands are protected, the level of protection increasing according to the significance of different rainforest areas. The minimum standard is provided by timber harvesting prescriptions which require that buffers be retained between logging coupes and rainforest. A higher level of protection is provided by linear reserves which include many significant rainforest stands on major rivers and streams. The highest level of protection is provided in sub-catchment areas. Overall, at least 59% of rainforest, including the most significant stands, will be protected by buffers of 100 m width or larger.
·     Formal reservation is provided for at least 90% of the Mixed Forests identified in the FMA. Mixed Forests are the forest stands where a eucalypt canopy is emergent above an understorey of rainforest species.
·     A strategy for conserving rare and threatened plant species is established.
·     Formal protection is provided for 67% of the total area of old-growth forest, including at least 60% within each Ecological Vegetation Class. Outside formally protected areas, an additional 18% of old-growth forest is protected by virtue of it being unsuitable for timber production. Provision is made for recruitment of old-growth forest so that its total area will increase in the long term.
·     Conservation guidelines have been established for key threatened and sensitive faunal species in State forest. These include protection of Long-footed Potoroos in accordance with the management strategy for this species, and planned protection for at least 100 pairs of Powerful, Sooty and Masked Owls. Specific strategies are also established for a range of other forest fauna including the Spot-tail Quoll, high density populations of arboreal mammals, forest bats, diurnal raptors, threatened frog species, significant fish populations, rare butterflies and crayfish.
·     A network of linear reserves of 200 m average width has been designed to maintain resident populations of sensitive fauna such as arboreal mammals, forest bats and hollow-nesting birds across the landscape. These will also facilitate the re-colonisation of areas that are harvested for wood production or burnt by wildfire.
·     A number of areas in the Special Management Zone will be managed to supply timber while retaining high wildlife values.
·     The system of sites of biological significance identified by pre-logging flora and fauna surveys between 1983 and 1993 has been reviewed and incorporated into the zoning scheme according to the significance, sensitivity and representation status of values in each site.
Forest Production
·     Sawlog supplies will be maintained to meet existing licence commitments and forecasts indicate that, given suitable markets for low-grade logs, sawlog supplies can be maintained at current levels until around 2030. By that time most of the sawlog production will come from regrowth forests.
·     Targets have been set for the annual area to be harvested in each major forest type in order to redress a past bias towards the higher-elevation and most productive forest types, and to provide a relatively even flow of products of different species and grades.
·     A schedule is established to ensure that all harvested coupes are adequately regenerated. A program of reforestation will also be implemented for former coupes that have failed to regenerate adequately.
·     The species composition and productive capacity of forest areas degraded by previous selective harvesting and disease will be progressively restored by integrating harvesting of minor forest produce with sawlog production, and by specific measures to ensure adequate regeneration of species that yield durable timbers.
·     Commercial thinning of regrowth forests will continue in selected stands and, if possible, be expanded to approximately 500 ha per year.
Forest protection
·     The forest management zones in this Plan have been reconciled as far as possible with zones for fuel-reduction burning in the Fire Protection Plans covering the FMA.
·     The Plan provides for the ongoing protection of water quality as well as regular consultation with water supply authorities.
·     The catchments of the Betka and Rocky Rivers have been placed in the Special Management Zone in recognition of the priority that domestic water supply considerations are to be given in these areas.
·     Priorities are established for control of pest plants and animals in State forest to complement the efforts of private land owners and ensure an integrated approach across all public land.
Cultural values
·     Management strategies for flora, fauna and cultural sites have been designed to encompass the values identified to date in the joint assessment of national estate values by the Australian Heritage Commission and the Department.
·     A scenic-drive network (using the existing road system) will provide access to national parks as well as a focus for protection of landscape values, and recreation and interpretative facilities.
·     A system for protecting landscape values from the visual impact of timber harvesting is established. It aims to minimise the impact on areas seen from the scenic-drive network and key lookout points.
·     Provisions have been made to protect the landscape around W-Tree so that the area continues to be of value for both tourism and timber production. The arrangements involve restricting the size and timing of logging coupes in the most visible areas.
·     A process is established to protect Aboriginal places of significance in State forest while maintaining confidentiality about their locations.
·     Significant historic places are incorporated in the zoning system to ensure that they are appropriately managed.[32]

[32]Department of Conservation and Natural Resources ‘Forest Management Plan for the East Gippsland Forest Management Area’ December 1995, v-vii (emphasis added).

As this summary indicates, the FMP specifies minimum levels of planned protection for natural values in State forest and uses such specification as the basis of a zoning system. The zoning system includes an SPZ from which timber harvesting is excluded and an SMZ within which conditions are placed on harvesting in order to limit environmental impacts.

The FMP recognises the zoning system will be refined in response to new information.

The FMP provides species specific guidelines for the protection of threatened species and also envisages a network of linear reserves to maintain populations of sensitive fauna.

It also states goals with respect to forest production.

Although the FMP constitutes a working plan pursuant to s 22 of the Forests Act it also seeks to accommodate a broader matrix of legislation.

1.2 LEGISLATIVE AND POLICY FRAMEWORK
This Plan is a ‘working plan’ under the meaning of the Forests Act 1958. Government policy also requires that forest management be:
·     economically viable;
·     environmentally sensitive;
·     sustainable for all forest values; and
·     assisted by public participation in planning.
The Plan has been developed in accordance with the requirements of the Flora and Fauna Guarantee Act 1988 and associated action statements and the Forests (Timber Harvesting) Act 1990.[33] Protection of species listed under the Commonwealth Endangered Species Protection Act 1992 is also provided for in this plan. The plan also fulfils a requirement of the Code of Forest Practices for Timber Production (CFL 1989a). The area of State forest to which the Plan applies has been set by government land use decisions in accordance with the Land Conservation Act 1970 (LCC 1977, 1979, 1983a, 1983b, 1986, 1991a and 1991b).[34]
This Plan also addresses the requirements of the National Forest Policy Statement (Commonwealth of Australia 1992) to which Victoria is a signatory. Accordingly, it incorporates the findings of A Study of the Old-growth Forests of East Gippsland (Woodgate et al. 1994) and the assessment of national estate values to date (AHC & CNR in prep.).
Other legislation, policies and plans of relevance are referred to as necessary through the text.[35]

[33]Repealed as at 28 April 1999.

[34]Repealed as at 1 July 1997.

[35]Department of Conservation and Natural Resources ‘Forest Management Plan for the East Gippsland Forest Management Area’ December 1995, 1.

In the present case the provisions of the FMP with respect to the conservation of endangered species form the basic framework for management of the issues raised by EEG. I will return to these provisions shortly.

Conservation, Forests and Lands Act 1987

The object of the CFL Act is stated by s 4:

The object of this Act is to set up a legislative framework to enable the Minister—
(a)to be an effective conserver of the State's lands, waters, flora and fauna; and
(b)to make provision for the productive, educational and recreational use of the State's lands, waters, flora and fauna in ways which are environmentally sound, socially just and economically efficient.

It can be seen that this object embraces the notion of effective provision for the productive use of the State’s lands in ways which are both environmentally sound and economically efficient.

The CFL Act binds the Crown.[36]
[36]Conservation, Forests and Lands Act 1987, s 5.

It makes provision for a body corporate under the name ‘Secretary to the Department of Sustainability and Environment’ (‘the Secretary’).[37]
[37]Conservation, Forests and Lands Act 1987, s 6(1).

The Secretary is subject to the direction and control of the Minister in carrying out the Secretary’s functions.[38]
[38]Conservation, Forests and Lands Act 1987, s 7.

Section 10 of the CFL Act provides that the Secretary has the functions conferred by a ‘relevant law or by or under any other Act’. ‘Relevant law’ is defined to include the FFG Act, the Forests Act, and the SFT Act.[39]
[39]Conservation, Forests and Lands Act 1987, s 4, read with Sch 1.

The CFL Act further makes provision among other things for codes of practice which specify standards and procedures for the carrying out of any of the objects or purposes of a relevant law.[40] By s 39 of the CFL Act compliance with a code of practice is not required unless the code of practice is incorporated in or adopted by either a relevant law, or a condition specified in an authority given under a relevant law. A code may thus be promulgated but have no statutory force until it is adopted by other legislation.
[40]Conservation, Forests and Lands Act 1987, s 31.

Sustainable Forests (Timber) Act 2004

The first main purpose of the SFT Act is to provide a framework for sustainable forest management and sustainable timber harvesting in State forests.[41]
[41]Sustainable Forests (Timber) Act 2004, s 1.

Section 4 provides that the SFT Act binds the Crown.

Part 2 of the SFT Act relates to sustainable forest management. Section 5 sets out the principles of ecologically sustainable development which are intended to guide sustainable forest management.

(1)In undertaking sustainable forest management in accordance with this Act, regard is to be had to the principles of ecologically sustainable development set out in this section.
(2)Ecologically sustainable development is development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.
(3)The objectives of ecologically sustainable development are—
(a)to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations;
(b)to provide for equity within and between generations;
(c)to protect biological diversity and maintain essential ecological processes and life-support systems.

(4)The following are to be considered as guiding principles of ecologically sustainable development—
(a)that decision making processes should effectively integrate both long-term and short-term economic, environmental, social and equity considerations;
(b)if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;
(c)the need to consider the global dimension of environmental impacts of actions and policies;
(d)the need to develop a strong, growing and diversified economy which can enhance the capacity for environment protection;
(e)the need to maintain and enhance international competitiveness in an environmentally sound manner;
(f)the need to adopt cost effective and flexible policy instruments such as improved valuation, pricing and incentive mechanisms;
(g)the need to facilitate community involvement in decisions and actions on issues that affect the community.

It can be seen that the fundamental notion of ecologically sustainable development, its objectives and the guiding principles stated, involve goals which may not necessarily be easily resolved as against each other. The integration of economic, environmental, social and equity considerations may involve the balancing of competing considerations in a given factual situation. It can also be seen that s 5(4)(b) contains a statement of a key element of what is known as the precautionary principle (to which I shall return).

Section 6 of the SFT Act requires the Minister to determine sustainability criteria and indicators for sustainable forest management.

Section 11 of the SFT Act provides that the Minister may develop a sustainability charter. A sustainability charter was tendered in evidence and characterised by Ms Mortimer as ‘a collection of high level statements’. A statement of corporate intent by VicForests setting out its response to the sustainability charter was also tendered. No specific reliance was ultimately placed upon these documents by either party in this proceeding.

100% confidence that the Kite will at least traverse the Brown Mountain forestry coupes, and a similar high level of confidence (at least 90%) that it will be present in and using those coupes, at least for foraging.[274]

[274]Dr Stephen Debus, Report (Square-tailed Kite), 11 February 2010, q 13.

He noted that the sightings were made during breeding season and that it is likely that there is a sparse breeding population in East Gippsland. He stated that the species may ‘possibly’ be using the coupes as nesting habitat. This opinion was made on the basis of the habitat type and structure, and the fact that Square-tailed Kite forages over, and is suspected to nest in, similar habitat within State forests in adjoining NSW.

Dr Bilney noted that the number and close proximity of the observations (less than 2.5 kilometres apart), one being in the late evening and both being in spring/early summer when the Square-tailed Kite is usually in the early stages of nesting meant that:

there is a good possibility that they may be nesting somewhere in the nearby vicinity (however, Square-tailed Kites can potentially have very large home-ranges of 10,000ha or larger).[275]

[275]Dr Rohan Bilney, ‘Report on the Square-tailed Kite (Lophoictinia isura) from Brown Mountain, East Gippsland’, 4 February 2010, 1 (citations omitted).

In cross-examination, Dr Debus accepted that there was no indication as to where the Square-tailed Kite(s) sighted by Dr Bilney may be nesting. He said there was a reasonable chance it might be in a fairly gentle valley but just looking at the map there is no way of predicting where it would be. More observations and plotting flight paths would be required.

Thus, while there is evidence of foraging, VicForests contends that there is no evidence of ‘known nest sites’ or ‘nest trees’ within the meaning of the FMP to trigger any guideline standard relevant to the Square-tailed Kite.

I accept this contention.

Both Dr Debus and Dr Bilney gave evidence as to how difficult it is to find a Square-tailed Kite nest. Dr Debus noted that unless found by chance, it would require a lot of time spent observing and plotting flight paths from a vantage point. Dr Bilney compared the task to being like trying to find a needle in a haystack and that it was likely that only a handful of nests would ever be found in Victoria.

Dr Debus is only aware of one active nest in Victoria and has never found one. Maps reveal that there are a number of records of sightings in the 1980s, 1990s and a few since 2000 in East Gippsland. However there is only one record of a nest in East Gippsland, namely near Orbost photographed in about 1980.

Precautionary Principle and the Square-tailed Kite

Given this evidence, EEG also puts its case with respect to the Square-tailed Kite by reference to application of the precautionary principle. It submits as follows:

258.In Dr Debus’ view, in the absence of an AS, conservation measures should also include actions to conserve the Kite’s status by minimizing actions that have an adverse impact on its foraging habitat and prey or that may disturb its nest sites during breeding. This is in the context of only 5 pairs presently being estimated to exist in East Gippsland.

259. …
The coupes have not been surveyed by those with relevant biodiversity and raptor experience to identify and so protect a potential nest site. This is the ‘don’t look, don’t find’ mentality. Further, there remains scientific uncertainty on the impact of harvesting on the Square-tailed Kite. There is a lack of “ecological information on the Kite’s response to logging and its breeding success under the various harvesting regimes”. Further information is required to determine on what scale and intensity of logging the Kite may survive, if at all. Breeding success is, of course, the key to recovery of a threatened species.
260.Dr Debus gave evidence of a study in NSW in relation to harvesting dispersed in space and time where Kites were observed in logged coupes which retained 30% of the basal area, seed trees, habitat trees and gully reserves. The defendant did not lead evidence on the extent of habitat and tree retention that will occur (in terms of basal retention) under the modified tree prescriptions. Dr Smith’s evidence stands alone about the extremely poor survival rates of trees retained in harvested coupes in this area. Further, and as Dr Gillespie noted in relation to the frogs (recalling his example about koalas on the road), that Kites were observed over regrowth does not support a finding that the Kite may survive and continue to breed successfully if its habitat consists principally of harvested coupes. The Eden study is not evidence that the Square-tailed Kite(s) present in and around coupes 15 and 19 may survive the harvesting of those coupes and continue to live in that area.
261.In fact, and as Dr Debus notes in his report, harvesting and post harvesting burns can remove foraging habitat and prey which in turn can result in food stress and territory abandonment. Food stress can also mean a reduced chance of producing eggs or the Kite surviving to successfully breed in the future. [276]

[276]Plaintiff’s Closing Submissions [258]-[261].

VicForests submits that it is against the weight of evidence to suggest that the proposed harvesting presents a serious or irreversible threat to the Square-tailed Kite and that accordingly the precautionary principle is not engaged because:

(a)the Square-tailed Kite’s conservation at the federal level is of “least concern”;
(b)Dr Debus accepted that “to some extent” the loss of habitat by harvesting might be offset by the creation of suitable openings in formerly extensive forest;
(c)the Kite’s home range is 5,000 - 10,000 hectares whereas the proposed harvesting would represent 1 – 2 percent of that range;
(d)Dr Debus acknowledged that his opinion had been predicated on an out of date map (which excluded the new reserves) and accepted that once the new reserves were taken into account, his conclusion on page 15 of his report that the harvesting might displace one pair of Kites may no longer apply;
(e)Dr Debus accepted there was no indication of where the Kite spotted by Dr Bilney may be nesting;

(f) Dr Debus conceded that:
(i)he would have to “moderate” his conclusions concerning the precautionary principle in the light of the new reserves;
(ii)he did not take into account any consequences other than those for the Kite;
(iii)“over the long-term the habitat is going to regenerate, so I would assume if you take a long-term perspective, [the harvesting] won’t [sic] result in irreversible damage”.

(g)Dr Debus agreed that the proposed harvesting in Brown Mountain (factoring in the additional reserves) would replicate the study area reviewed by Kavanagh and others in 2003 as referred to in answer to question 15(b) in his report and in that situation there did not appear to be any threat to the Kite.[277]

[277]Defendant’s Closing Submissions, [234] (citations omitted).

I accept VicForests’ submission that the evidence does not establish that the proposed logging will constitute a threat to the survival of the Square-tailed Kite or a consequential threat of serious and irreversible damage to the environment.

(a) the Brown Mountain coupes constitute a very small portion of the probable range of the Square-tailed Kite;

(b) there is no evidence supporting the conclusion that the species nests in the coupes;

(c) the effect of the logging would to be create a patchwork of logged, unlogged and regrowth habitat; and

(d) the evidence does not demonstrate that such habitat would fail to support the Square-tailed Kite and favours the conclusion that it would.

For like reasons, EEG has not demonstrated that VicForests has relevantly failed to have regard to the objectives stated under s 4(1)(a) of the FFG Act.

MHollow Bearing Trees

The Statement of Claim alleges that VicForests has failed to identify significant stands of hollow bearing trees in the Brown Mountain coupes and failed to implement measures to maintain or enhance the extent and/or density of hollows in trees within the Brown Mountain coupes. The Code of Practice envisages the retention of habitat trees or patches in appropriate numbers and configurations and provision for the continuity and replacement of old hollow bearing trees within the harvestable area. The FMP also envisages provision for the retention of hollow bearing trees and in particular provision by way of the creation of linear reserves.

The FFGAS relating to hollow bearing trees describes their nature and occurrence as follows:

Description and occurrence
Hollows that form in trees provide essential breeding and roosting spaces for many native wildlife species. Native Australian trees do not usually develop hollows suitable for use by vertebrates until they are very old. Large hollows, essential for some fauna, do not develop until trees are well over a hundred years old; the development of large hollows being a characteristic feature of tree senescence. Hollows develop in Australian trees largely as a result of natural branch shedding and damage by wind, lightning, fungi and wood-boring insects, particularly termites. Fire can accelerate this damage, but it also accelerates deterioration and collapse of existing hollow trees. In contrast to other parts of the world, where animals like woodpeckers actively excavate holes, the only primary hole-excavating vertebrate animals in Australia are a few species of tropical parrot.
Some eucalypt species (eg River Red Gum Eucalyptus camaldulensis) may survive for many centuries, providing a dynamic supply of hollows that suit different species at different stages of hollow development. Each animal species has its own requirements and preferences for factors such as hollow size, location (branch or trunk), tree species and surrounding vegetation. Old trees may continue to provide hollows for many years between death and eventual collapse and decay.
Hollow-bearing trees are usually the oldest and largest members of their communities. Therefore they often have values beyond the hollows they contain that cannot be provided by younger trees; by virtue of their age, size, form, root development and ability to sequester resources from surrounding vegetation. These include: landscape value; a large and diverse invertebrate fauna, particularly in peeling bark which provides a distinctive foraging substrate; non-hollow nest, roost and perch sites; nest materials; open stand structure; clusters of mistletoes and other epiphytes, and a more regular and prolific flowering and nectar production.
When large trees eventually collapse or fall, they provide a range of resources for different groups of fauna. Large hollow logs on the forest floor are used by ground-dwelling animals, particularly mammals, for shelter and as foraging sites. Branches and trees falling into water provide shelter for fish and other aquatic animals. Rotting wood contributes nutrients and organic matter to the soil, and fungi are used as food by various mammals including possums, bandicoots and potoroos.
Rates of formation and loss of hollow-bearing trees have been affected by European settlement in all Australian states. Usually this has involved accelerated rates of loss (principally through clearing for agriculture) and reduced rates of formation (by preventing regeneration of trees in farmland, or as a consequence of wildfire (eg 1939 fires) or timber harvesting activities in areas of forests); hence numbers of hollow-bearing trees are reduced.[278]

[278]DSE, Action Statement, Flora and Fauna Guarantee Act 1988 No 192 Loss of hollow-bearing trees from Victorian native forests and woodlands, 1 (citations omitted).

The FFGAS also records that the loss of hollow bearing trees from Victorian native forests is listed as a potentially threatening process under the FFG Act.

The FFGAS goes on to describe the ecological role of hollows. In the present case, the evidence supports the view that hollow bearing trees are likely to play a significant role in the survival of the Greater Glider, the Yellow-bellied Glider, the Spot-tailed Quoll, the Powerful Owl and the Sooty Owl.

VicForests’ Amended Defence admits that the Spot-tailed Quoll, the Powerful Owl, the Sooty Owl, the Yellow-bellied Glider and the Greater Glider are hollow dependent species.

The FFGAS also notes in respect of forest harvesting:

Options available to forest managers to retain hollow densities include varying rotation periods, varying silvicultural systems, retaining areas of high hollow density, retaining existing hollow-bearing trees and trees likely to develop hollows in the future within areas available for harvesting.[279]

[279]Ibid, 3.

The FFGAS sets out a series of considerations relating to management options and ultimately states the following intended management actions for State forests:

7. Continue to identify significant areas or stands of hollow-bearing trees in State forest, using the State Forest Resource Inventory and other relevant information, to inform management decisions.
8. Continue to implement a range of measures to maintain or enhance the extent and/or density of hollows in State forest where this is known to be limiting the distribution and/or abundance of hollow-dependent species. These measures include:
• Application of management guidelines, including forest management zones and prescriptions, for fauna species as provided in Forest Management Plans (e.g. Leadbeaters Possum Special Protection Zones and prescriptions).
• The development and application of revised habitat retention prescriptions for areas within the General Management Zone (GMZ) in accordance with the principles and objectives established by the State Forest Flora and Fauna Habitat Management Working Group.
Responsibility: DSE Parks and Forests Division, DSE Regions[280]

[280]Ibid, 6.

In my view the allegations made in the Statement of Claim are satisfactorily answered by the prescriptions contained in the MPR relating to hollow bearing trees which were inserted following the Minister’s decision of August 2009 (see [281] above). If these prescriptions are met then I accept that the management actions stated in the FFGAS will be given effect, regard will also have been had to the objectives stated in s 4(1)(a) of the FFG Act. In turn the FMP will not be breached in respect of hollow bearing trees and the evidence does not establish the precautionary principle requires further preservation of hollow bearing trees (save as part of the retained habitat required for specific species).

N Conclusion

EEG seeks an injunction restraining VicForests from harvesting coupes 15, 19, 26 and 27 at Brown Mountain. It also seeks a declaration or declarations that any timber harvesting within such coupes will be unlawful.

I accept the submission of VicForests that there must be some threatened action or inaction on its behalf that binds its conscience before equity will intervene by way of injunction against it.

I also accept that it is necessary to identify the legal or equitable rights which have been determined at trial and which form the potential basis of injunctive relief.[281]
[281]Cf ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 241.

In the present case I have concluded that unless VicForests complies with the requirements of relevant FFGASs and with the conditions stated in the allocation order and TRP, logging at Brown Mountain will be unlawful.

I accept EEG’s submission that having reached this conclusion an injunction should issue because:

(a) VicForests maintains its threat to log at Brown Mountain; and

(b) there is a public interest in the making of the order preventing unlawful logging.

The potential breaches of conditions comprised in the FFGASs and (as adopted by the allocation order and TRP) the FMP which I have identified, nevertheless fall to be considered in the context of the role which is accorded to DSE under the relevant statutory scheme. I accept that it is contextually relevant to recognise:

(a) that it is DSE which has ultimate power to amend the zoning scheme creating either an SMZ or an SPZ, Long-footed Potoroo retained habitat area, POMA or SOMA;

(b) that if the presence of a threatened species is further detected, that finding would need to be reported to DSE in order for it to determine whether an SPZ was required and in what form;

(c) VicForests has acknowledged and maintained that it will modify timber harvesting boundaries in accordance with any zoning decisions made by DSE.

I also accept that if injunctive relief is granted then such relief should be framed by conditions limiting its impact to what is necessary to avoid the unlawful conduct which I have identified.

Further as was stated in Bridgewater v Leahy:[282]

Once a court has determined upon the existence of a necessary equity to attract relief, the framing, or, as it is often expressed, the moulding, of relief may produce a final result not exactly representing what either side would have wished. However, that is a consequence of the balancing of competing interests to which, in the particular circumstances, weight is to be given.

[282](1998) 194 CLR 457, 494 per Gaudron, Gummow and Kirby JJ.

In my view VicForests should be restrained from logging the Brown Mountain coupes until:

(a) an SMZ and Long-footed Potoroo retained habitat area have been created in respect of detections of the Long-footed Potoroo within coupes 15, 19 and 26 and in accordance with Appendix I to the FFGAS to the satisfaction of the Director, Biodiversity Policy and Programs, DSE (‘the Director’);

(b) a survey is carried out for the presence of the Giant Burrowing Frog and the Large Brown Tree Frog within coupes 15, 19, 26 and 27 during appropriate climatic conditions by appropriately qualified persons to the satisfaction of the Director;

(c) a review of the provision of POMAs and SOMAs within the East Gippsland FMA taking into account the report of Dr Bilney dated December 2009 is completed to the satisfaction of the Director;

(d) a survey is carried out for the presence of the Spot-tailed Quoll within coupes 15, 19, 26 and 27 during the breeding season of the Spot-tailed Quoll in and between May and August by appropriately qualified persons to the satisfaction of the Director, and in the event of detection of the Spot-tailed Quoll, a review of the provision of reserves for the Spot-tailed Quoll within the East Gippsland FMA is completed to the satisfaction of the Director;

(e) an SPZ of approximately 100 hectares is created to the satisfaction of the Director in response to the detection of densities of Greater Gliders and Yellow-bellied Gliders in coupe 15 exceeding those specified in the guideline relating to arboreal mammals contained in the FMP.

It is necessary to formulate injunctive relief which crystallises in ascertainable obligations. In my view, the conditions should vest the function of ultimate determination of the practical content of the relevant obligations in the Director, whose function is to administratively endorse the relevant outcomes in any event.

It is also necessary to preserve the possibility that a single reservation may ultimately respond to a series of trigger requirements.

Mr Spencer’s evidence was that VicForests would await direction from DSE if an event occurred triggering the potential application of a habit prescription.

There is no basis on which to conclude that if zones are formulated protecting and retaining habitat of the Long-footed Potoroo, the Greater Glider and the Yellow‑bellied Glider, VicForests will do other than respect such zones.

The moratorium on logging imposed by DSE following the initial surveys forming the subject of evidence in this proceeding, confirms what might otherwise be expected, namely that DSE will consider the results of further surveys and respond properly to them.

Likewise, it cannot be concluded that it is probable that if Giant Burrowing Frogs or Large Brown Tree Frogs were detected, the requirements of the FFGAS relating to the Giant Burrowing Frog would not be implemented, nor that appropriate responses would not be made to any detections of the Large Brown Tree Frog.

Further it cannot be concluded that if the potential habitat of Brown Mountain were preserved until the current review of the FMA zoning scheme is completed, there would be other than proper reconsideration of the form of POMAs, SOMAs and reserves for the protection of owls or (in the event of detection) reserves for the Spot‑tailed Quoll. In this regard I note that the review involves a public consultation process.

VicForests submits that if an injunction is granted with respect to the Long-footed Potoroo it should be in the following terms:

Subject to further order, VicForests be restrained from harvesting in any of the Brown Mountain coupes until [a specified date] on condition that the plaintiff forthwith provide to the DSE all exhibits, evidence and any other documents in its possession relevant to the detection of a Long-footed Potoroo within any of the Brown Mountain coupes.[283]

[283]Defendant’s Closing Submissions, [241].

I do not accept that this is a satisfactory formulation. It does not ensure compliance with the Long-footed Potoroo FFGAS. It reflects the assumption which I have rejected that logging by VicForests will be lawful if DSE does not formulate a habitat retention area. For reasons I have explained, the lawfulness of any logging is dependent upon the implementation of an FMZ and habitat retention area.

Nevertheless, I accept that injunctive relief with respect to protection of the Long‑footed Potoroo should be conditioned by an undertaking:

(a) that the plaintiff provide to DSE copies of all photographic evidence it possesses relating to the presence of the Long-footed Potoroo in the Brown Mountain coupes; and

(b) the plaintiff take all reasonable steps to assist DSE to confirm the precise location of the taking of the images produced in evidence by Ms McLaren.

Insofar as declaratory relief is concerned, I have come to the view that the injunctions I have formulated are sufficient to both protect the interests which EEG seeks to protect and to provide a workable path forwards for VicForests which limits its obligations to what are strictly necessary.

Accordingly, I do not propose to make declarations in the detailed form sought by EEG. It is inherently difficult to do so when the injunctions I have proposed require steps to be undertaken which may change the present complexion of the facts.

I do not accept EEG’s submissions that declarations should or can readily be formulated:

(a) as to the legal consequences of the detection of exceptionally high levels of Yellow‑bellied Gliders and Greater Gliders;

(b) as to the legal consequences of the detection of Long-footed Potoroos within coupes 15, 19 and 26;

(c) as to the legal consequences of the detection of Sooty Owls and Powerful Owls; or

(d) in general terms as to the requirements of the precautionary principle.

The threatened conduct which I have characterised as unlawful is more appropriately restrained by way of conditional injunction.

I will give the parties a further opportunity to address the precise wording of the injunctions I propose before making final orders.

In summary, logging at Brown Mountain should be restrained because:

(a) SMZ and retained habitat protection has not been provided in accordance with the relevant FFGAS following the detections of the Long-footed Potoroo in coupes 15, 19 and 26;

(b) the precautionary principle requires surveys to be undertaken to ascertain the presence or otherwise of the Giant Burrowing Frog and the Large Brown Tree Frog within the Brown Mountain coupes in circumstances where they are threatened species, their presence is probable and adequate surveys have not been carried out;

(c) the precautionary principle requires the completion of the current review of management area reserves created under the East Gippsland FMP in respect of the habitat of the Powerful Owl and the Sooty Owl in circumstances where the current management areas comprise in part modelled habitat in which neither owl species has been detected;

(d) the precautionary principle requires surveys to be undertaken to ascertain the presence or absence of the Spot-tailed Quoll within the Brown Mountain coupes in circumstances where it is threatened with extinction, the coupes comprise optimal habitat, adequate surveys have not been carried out, and the system of reserves providing protected habitat for the Spot-tailed Quoll is currently under review. If the Spot-tailed Quoll is detected, the precautionary principle requires this review to be completed;

(e) the provisions of the FMP have not been complied with and require the creation of a reserve of approximately 100 hectares consequent upon the detection of exceptional levels of Greater Gliders and Yellow-bellied Gliders within the coupes.

[2010] VSC 335

11 August 2010