Environment East Gippsland Inc v VicForests (No 4)

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IN THE SUPREME COURT OF VICTORIA  Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2021 01527

ENVIRONMENT EAST GIPPSLAND INC.	Plaintiff
v
VICFORESTS	Defendant

S ECI 2021 04204

KINGLAKE FRIENDS OF THE FOREST INC.	Plaintiff
v
VICFORESTS	Defendant

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JUDGE:

Richards J

WHERE HELD:

Melbourne

DATE OF HEARING:

9–13, 16 May, 23 June 2022

Further written submissions 5 August 2022

DATE OF JUDGMENT:

4 November 2022

CASE MAY BE CITED AS:

Environment East Gippsland Inc v VicForests (No 4)

MEDIUM NEUTRAL CITATION:

[2022] VSC 668

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ENVIRONMENTAL LAW – Timber harvesting in State forests in East Gippsland and Central Highlands – Proper interpretation of ss 2.2.2.2 and 2.2.2.4 of the Code of Practice for Timber Production 2014 (as amended 2022) – Precautionary principle – Whether precautionary principle is engaged in relation to greater gliders and yellow-bellied gliders – Whether VicForests is applying precautionary principle to conservation of greater gliders and yellow-bellied gliders – Measures for detection and protection of greater gliders and yellow-bellied gliders – Whether VicForests is applying s 2.2.2.4 of the Code – Whether VicForests is correctly applying cl 4.2.1.3 and Table 13 of the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2021 in East Gippsland – Criteria for applying protection area of ‘suitable habitat’ around certain populations of greater gliders and yellow-bellied gliders in East Gippsland – Whether injunctions should be granted – Whether declarations appropriate – Sustainable Forests (Timber) Act 2004 (Vic) – Conservation, Forests and Lands Act 1987 (Vic) – Code of Practice for Timber Production 2014 (as amended 2022), ss 2.2.2.2 and 2.2.2.4 – Management Standards and Procedures for timber harvesting operations in Victoria’s State forests, cl 4.2.1.3 and Table 13 – Environment East Gippsland Inc v VicForests (2010) 30 VR 1 (Brown Mountain) – Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 – VicForests v Friends of Leadbeater’s Possum Inc (2021) 285 FCR 70.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Korman and Dr K Weston-Scheuber	Oakwood Legal
For the Defendant	Mr PH Solomon KC with Mr OM Ciolek and Ms H Douglas	Johnson Winter & Slattery

TABLE OF CONTENTS

Introduction.................................................................................................. 1

Regulation of timber harvesting in State forests................................... 12

Relevant provisions of the Code and the Standards............................ 16

VicForests’ timber harvesting operations.............................................. 24

Forest Management Zoning Scheme............................................. 25

Coupe planning................................................................................ 27

Operations planning........................................................................ 30

Harvesting systems.......................................................................... 31

Ecological evidence................................................................................... 32

Greater gliders............................................................................................ 34

Yellow-bellied gliders............................................................................... 36

Issue 1: What is the proper interpretation of s 2.2.2.2 of the Code?... 38

Plaintiffs’ submissions..................................................................... 39

VicForests’ submissions.................................................................. 42

Consideration................................................................................... 44

Issue 2: What is the proper interpretation of s 2.2.2.4 of the Code?... 51

Plaintiffs’ submissions..................................................................... 51

VicForests’ submissions.................................................................. 53

Consideration................................................................................... 53

Issue 3: What measures does VicForests take for the conservation of greater gliders?................................................................................. 58

Detection............................................................................................ 58

Protection.......................................................................................... 60

Issue 4: Is the precautionary principle engaged in relation to greater gliders?............................................................................................... 63

A threat of serious or irreversible environmental damage?...... 64

Lack of scientific certainty?............................................................. 74

Issue 5: Is VicForests applying the precautionary principle to the protection of greater gliders?......................................................... 75

Issue 6: What measures does VicForests take for the conservation of yellow-bellied gliders?.................................................................... 89

Issue 7: Is the precautionary principle engaged in relation to yellow-bellied gliders?.................................................................................. 91

Issue 8: Is VicForests applying the precautionary principle to the protection of yellow-bellied gliders?............................................. 94

Issue 9: Is VicForests applying the precautionary principle to the detection of gliders?....................................................................... 101

Ecological evidence — survey methods..................................... 102

Safety................................................................................................ 110

Feasibility........................................................................................ 117

Conclusions on survey methods.................................................. 120

Issue 10: Is VicForests applying s 2.2.2.4 of the Code in East Gippsland?...................................................................................... 121

Issue 11: Is VicForests applying s 2.2.2.4 of the Code in the Central Highlands?...................................................................................... 123

Issue 12: In East Gippsland, is VicForests correctly applying cl 4.2.1.3 of the Standards?............................................................................ 124

The pleadings.................................................................................. 124

The evidence................................................................................... 126

Suitable habitat............................................................................... 128

Substantial population in isolated habitat.................................. 131

Tiger, Lior and Power coupes...................................................... 133

Proposed SPZs in other coupes.................................................... 138

Issue 13: Is VicForests likely to misapply cl 4.2.1.3 of the Standards in future?.............................................................................................. 142

Issue 14: Should injunctions be granted?............................................. 145

Plaintiffs’ submissions................................................................... 145

VicForests’ submissions................................................................ 148

Consideration................................................................................. 150

Issue 15: Should declarations be granted?........................................... 157

Disposition................................................................................................ 161

GLOSSARY

Term	Definition
40% retention prescription	The intended management provided for VicForests to meet Objective 2 of the Greater Glider Action Statement, as set out in paragraph [170] of the judgment.
Allocation Order	The Allocation Order made by the Minister under the Sustainable Forests (Timber) Act 2004 (Vic) in October 2013, as amended from time to time, most recently on 24 April 2019.
CAR	‘Comprehensive, Adequate and Representative’, a reserve system established under the RFAs under which areas of public and private land are designated by the Victorian government for conservation purposes.
CBP	Common brush-tailed possum
CFL Act	Conservation, Forests and Lands Act 1987 (Vic)
Code	Code of Practice for Timber Production 2014 (as amended 2022)
DELWP	Department of Environment, Land, Water and Planning
East Gippsland proceeding	Proceeding S ECI 2021 01527 Environment East Gippsland Inc. v VicForests, commenced on 11 May 2021.
EEG	Environment East Gippsland Inc.
EPBC Act	Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Flora and Fauna Guarantee Act	Flora and Fauna Guarantee Act 1988 (Vic)
FMA	Forestry Management Area
FMZS	Forest Management Zoning Scheme
FPSP	Forest Protection Survey Program
GMZ	General Management Zone
Greater Glider Action Statement	Greater Glider Action Statement prepared by DELWP in 2019 under s 19 of the Flora and Fauna Guarantee Act 1988 (Vic)
HBT	Hollow-bearing tree
HCV	High Conservation Value
Intergovernmental Agreement	Australian Intergovernmental Agreement on the Environment, 1 May 1992, contained in the Schedule to the National Environment Protection Council Act 1994 (Cth)
IPAs	Immediate Protection Areas
KFF	Kinglake Friends of the Forest Inc.
Kinglake proceeding	Proceeding S ECI 2021 04204 Kinglake Friends of the Forest Inc. v VicForests, commenced on 9 November 2021
RFAs	Regional Forest Agreements
Rio Declaration	Rio Declaration on Environment and Development 1992 (Report of the United Nations Conference on Environment and Development, 3-14 June 1992, Annex 1)
SGG	Southern greater glider
SLCP	Spotlight Call Playback
SMZ	Special Management Zone
SPZ	Special Protection Zone
Standards	Management Standards and Procedures for timber harvesting operations in Victoria’s State forests
2014 Standards	Management Standards and Procedures for timber harvesting operations in Victoria’s State Forests 2014
Timber Act	Sustainable Forests (Timber) Act 2004 (Vic)
VR1	Variable retention 1 harvesting
VR2	Variable retention 2 harvesting
YBG	Yellow-bellied glider

HER HONOUR:

Introduction

1. VicForests is a Victorian Government owned business, established by an Order in Council made under s 14 of the State Owned Enterprises Act 1992 (Vic). Its primary purpose is to sell and supply timber resources in Victorian State forests on a commercial basis. In order to fulfil that purpose it conducts timber harvesting operations in those forests. In doing so, it must comply with the provisions of the Sustainable Forests (Timber) Act 2004 (Vic) (Timber Act) and any relevant Code of Practice made under Pt 5 of the Conservation, Forests and Lands Act 1987 (Vic) (CFL Act).[1]  Currently, VicForests’ timber harvesting operations are governed by the Code of Practice for Timber Production 2014 (as amended 2022) (Code), which incorporates the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests (Standards).

   [1]Sustainable Forests (Timber) Act 2004 (Vic), s 46(a) (Timber Act).

1. The Code and the Standards impose various obligations on VicForests that are directed to maintaining the biological diversity and ecological characteristics of native flora and fauna in the State forests in which it operates.[2]  It has previously been observed that this places VicForests in a position of inherent conflict.[3]  On the one hand, it is expected to operate as a business engaged in the profitable sale and supply of timber harvested in Victoria’s native forests.  On the other, it has responsibilities to undertake its timber harvesting operations in a way that maintains the biodiversity of those forests — including a number of threatened species listed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

   [2]Code of Practice for Timber Production 2014 (as amended 2022), s 1.3 – Code Principle 1, s 2.2.2 – Conservation of Biodiversity.

   [3]Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704, [12], [940] (Leadbeater’s Possum No 4).

1. This judgment concerns two separate proceedings brought by incorporated associations, each with a special interest in the preservation of State forests.  Environment East Gippsland Inc. (EEG) has previously been found to have standing to seek remedies to protect a special interest in the preservation of State forests in the East Gippsland region.[4]  More recently, the Court of Appeal held that Kinglake Friends of the Forest Inc. (KFF) had a special interest in preserving the native forests of the Central Highlands region of Victoria, and standing to seek remedies to secure compliance with the Code and Standards.[5]  VicForests no longer disputes the standing of either plaintiff in these proceedings.

   [4]Environment East Gippsland Inc v VicForests (2010) 30 VR 1 (Brown Mountain).

   [5]VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143.

1. In the East Gippsland proceeding,[6] EEG seeks declarations and permanent injunctions to enforce what EEG contends are VicForests’ obligations to identify and protect greater gliders and yellow-bellied gliders that live in State forests in the East Gippsland forestry management area (FMA).  In the Kinglake proceeding,[7] KFF seeks similar relief in respect of VicForests’ obligations to identify and conserve greater gliders and yellow-bellied gliders in State forests in the Central Highlands FMAs. Both greater gliders and yellow-bellied gliders are listed threatened species under the EPBC Act.

   [6]S ECI 2021 01527, commenced on 11 May 2021.

   [7]S ECI 2021 04204, commenced on 9 November 2021.

1. EEG and KFF contend that ss 2.2.2.2 and 2.2.2.4 of the Code require comprehensive pre-harvest surveys of a coupe scheduled for harvesting, in order to identify whether greater gliders and yellow-bellied gliders are present within the coupe and, if so, the location of the gliders’ home ranges.  They further contend that ss 2.2.2.2 and 2.2.2.4 require VicForests to exclude an area of forest from harvesting around the location of each sighting of a greater glider or yellow-bellied glider.  In addition, EEG says that VicForests is not meeting its obligations under cl 4.2.1.3 of the Standards to apply a protection area of approximately 100 hectares of suitable habitat around certain populations of greater gliders and yellow-bellied gliders.

1. VicForests denies that ss 2.2.2.2 and 2.2.2.4 of the Code have the meaning contended for by the plaintiffs.  It argues that the precautionary principle in s 2.2.2.2 is not engaged in relation to greater gliders or yellow-bellied gliders, and that the measures it takes for the detection and protection of both are adequate.  VicForests says that it correctly applies s 2.2.2.4 when planning timber harvesting operations in East Gippsland, and that s 2.2.2.4 has no application in the Central Highlands in relation to greater gliders and yellow-bellied gliders.  In the East Gippsland proceeding, it maintains that it meets its obligations under cl 4.2.1.3 of the Standards.  VicForests contends that neither plaintiff has made out a case for relief, and in any event says that relief should be refused on discretionary grounds.

1. The issues for determination, and a summary of my conclusions in relation to each issue, are as follows:

(1)What is the proper interpretation of s 2.2.2.2 of the Code?       

Section 2.2.2.2 of the Code means that VicForests, as the managing authority and a harvesting entity, must always apply the precautionary principle to the conservation of biodiversity values, including when planning and conducting timber harvesting operations in State forests.

Applying the precautionary principle involves two inquiries — (a) are there threats of serious or irreversible environmental damage, (b) about which there is a lack of scientific certainty?  If the answer to both of those inquiries is ‘yes’, proportionate measures to prevent environmental degradation should not be postponed.

(2)What is the proper interpretation of s 2.2.2.4 of the Code?       

Section 2.2.2.4 of the Code is a mandatory action that requires VicForests, during planning, to identify whether and where the biodiversity values listed in the first column of Table 13 of the Standards are present in a coupe, before undertaking timber operations such as roading and harvesting.  The phrase ‘biodiversity values’ is used in s 2.2.2.4 of the Code to refer to things, including species of fauna and flora, that have value to biodiversity.  The two species with which these proceedings are concerned, greater gliders and yellow-bellied gliders, are biodiversity values for the purposes of s 2.2.2.4.  Where they are present in a coupe, VicForests must address risks to them by taking management actions consistent with the Standards.  These actions may be in addition to the management actions already prescribed in Table 13, where that is necessary to address risks to the species.

(3)What measures does VicForests take in its timber harvesting operations for the conservation of greater gliders?       

VicForests relies on pre-harvest spotlight surveys conducted by the Department of Environment, Land, Water and Planning (DELWP), in addition to spotlight surveys carried out by its own staff and contractors.  It is not the practice of either DELWP or VicForests to survey an entire coupe; they both survey transects approximately one kilometre in length within a coupe.  Where possible, VicForests conducts these surveys along an existing road or track.

VicForests retains habitat trees, as required by cl 4.1.1.1 and Table 12 of the Standards, giving priority to hollow-bearing trees and to trees most likely to develop hollows in the short term.  It uses variable retention harvesting as its preferred method of timber harvesting. 

In East Gippsland, VicForests applies a protection area of approximately 100 hectares where a ‘relative abundance’ of greater gliders is detected, as required by cl 4.2.1.3 and Table 13 of the Standards.  VicForests does not do this in the Central Highlands, where there is no equivalent prescription.

In both East Gippsland and the Central Highlands, VicForests retains 40% of the basal area of eucalypts across each harvested coupe in which three or more greater gliders are detected per spotlight kilometre.

(4)Is the precautionary principle engaged in relation to greater gliders?        

Yes.  There is a threat of serious and irreversible damage to greater gliders as a species, in that the species is at risk of extinction.  It is a listed threatened species which has been assessed to be facing a very high risk of extinction in the wild in the near future.  I am also satisfied that VicForests’ timber harvesting operations in East Gippsland and the Central Highlands present a threat of serious or irreversible harm to the greater glider as a species.  There is a lack of scientific certainty about the nature and extent of the threats to the species, including as to the effect of timber harvesting operations on the species.

(5)If so, is VicForests applying the precautionary principle to the protection of greater gliders?       

I consider the application of the precautionary principle to the conservation of greater gliders in two parts — protection and detection.  Issue 5 concerns what the precautionary principle requires for the protection of greater gliders.  At Issue 9, I consider what the precautionary principle requires for their detection.

In relation to Issue 5, I have concluded that VicForests does not currently apply the precautionary principle to the protection of greater gliders.

The expert ecologists recommended two alternative measures for protecting greater gliders from destruction by timber harvesting operations in their habitat. 

(a)       One approach is to retain a circular area of approximately 18 hectares of suitable habitat centred on a confirmed greater glider sighting.  This approach allows for intensive timber harvesting outside of the exclusion area.

(b)      The second approach is to retain a smaller area of around three hectares, corresponding to the home range of any greater glider detected within the coupe.  Within the remainder of the coupe, at least 60% of the basal area should be retained, protecting suitable habitat features such as hollow-bearing trees and feed trees.  This approach provides better protection for undetected greater gliders.

Both approaches involve maintaining connections between retained areas of habitat and other suitable glider habitat. 

I prefer the second approach, as the more proportionate of the two.

VicForests does not currently take either of these approaches.  The actions that VicForests takes to conserve greater gliders that have been detected within a coupe scheduled for harvest are inadequate and, in many cases, unlikely to be effective.  They are also not consistent with relevant scientific research.  In particular, variable retention harvesting was not shown to be effective to conserve greater glider populations in harvested coupes.  The available evidence was that variable retention harvesting is of no short to medium term benefit to greater gliders, and that its impact is similar to clearfall harvesting.

VicForests’ current approach falls well short of what the precautionary principle requires for the conservation of greater gliders.  The ecological evidence was clear - greater gliders that live in coupes that are harvested in accordance with VicForests’ current practices will probably die as a result of the harvesting operations.

(6)What measures does VicForests take in its timber harvesting operations for the conservation of yellow-bellied gliders?       

In East Gippsland, VicForests detects yellow-bellied gliders in the same way that it detects greater gliders.  VicForests does not specifically survey for yellow-bellied gliders in the Central Highlands.

VicForests retains habitat trees, giving priority to hollow-bearing trees and to trees most likely to develop hollows in the short term.  It uses variable retention harvesting as its preferred method of timber harvesting. 

In East Gippsland, but not in the Central Highlands, VicForests applies a protection area of approximately 100 hectares where a ‘relative abundance’ of yellow-bellied gliders is detected, as required by cl 4.2.1.3 and Table 13 of the Standards.

(7)Is the precautionary principle engaged in relation to yellow-bellied gliders?       

Yes.  There is a threat of serious and irreversible damage to yellow-bellied gliders as a species, in that the species is at risk of extinction.  It is a listed threatened species which has been assessed to be facing a high risk of extinction in the wild in the medium term.  Further, VicForests’ timber harvesting operations in East Gippsland and the Central Highlands present a threat of serious or irreversible harm to the yellow-bellied glider as a species.  There is a lack of scientific certainty about the nature and extent of these threats, including as to the effect of timber harvesting operations on yellow-bellied gliders.

(8)If so, is VicForests applying the precautionary principle to the protection of yellow-bellied gliders?       

No.  VicForests does not currently apply the precautionary principle to the protection of yellow-bellied gliders.

The ecologists recommended two alternative measures for protecting yellow-bellied gliders from the effects of timber harvesting operations in their habitat.

(a)       One approach is to retain a circular area of approximately 38 hectares of suitable habitat around a family group of three or more yellow-bellied gliders.  This approach allows for intensive timber harvesting outside of the retained area of habitat.

(b)      The second approach is to identify and retain the feed trees of yellow-bellied gliders, as well as recruitment trees around each feed tree and hollow-bearing trees within a coupe.  Across the harvested area of the coupe, at least 60% of the basal area should be retained.  This approach does not support intensive timber harvesting in any part of a coupe in which yellow-bellied gliders are present.

Again, both approaches depend on maintaining connectivity between areas of suitable glider habitat, including by retaining riparian strips along waterways.

Again, I prefer the second approach, as the more proportionate of the two.

VicForests’ existing timber harvesting practices do not take either of these measures for the protection of yellow-bellied gliders.  The actions that it does take, such as variable retention harvesting, are unlikely to be effective, and are not supported by relevant monitoring and research.  Variable retention harvesting was not shown to be effective to conserve yellow-bellied gliders in harvested coupes, and its impact is comparable to clearfall harvesting.  The ecological evidence was that yellow-bellied gliders that live in coupes that are harvested in accordance with VicForests’ current practices will probably die as a result of the harvesting operations.

(9)Is VicForests applying the precautionary principle to the detection of gliders?       

VicForests’ current approach to detecting greater gliders and yellow-bellied gliders is considerably less than s 2.2.2.2 of the Code requires.  In order to apply the precautionary principle to the conservation of greater gliders and yellow-bellied gliders, VicForests must survey the whole of any coupe proposed for harvest which may contain glider habitat.  It must do so using a survey method that is likely to detect any gliders that may be present in the coupe, so as to locate the gliders’ home ranges wherever practicable.  This is necessary in order that their essential habitat can be excluded from timber harvesting operations, as the precautionary principle requires — in the case of greater gliders, their home ranges, and in the case of yellow-bellied gliders, their feed trees and hollow-bearing den-trees within the coupe.

At present VicForests does not survey all of a coupe before harvesting, and so it plans and undertakes timber harvesting operations without knowing where gliders live within the coupe and which parts of the coupe should be retained for their habitat.  In order to comply with s 2.2.2.2 of the Code, VicForests needs to undertake much more thorough pre-harvest surveys for greater gliders and yellow-bellied gliders.

The plaintiffs proposed a survey protocol that is a reliable and effective method for detecting and locating gliders within a coupe.  The protocol is both safe and feasible.  However, it is highly prescriptive, and it may not be safe or effective to apply it in every coupe.  It is also not the only effective method of detecting gliders, in particular yellow-belled gliders.

(10)Is VicForests applying s 2.2.2.4 of the Code in East Gippsland?     

No.  VicForests is not applying s 2.2.2.4 of the Code in East Gippsland.  It does not meet its obligation to identify whether and where greater gliders and yellow-bellied gliders are present in a coupe, when planning to harvest the coupe.  The spotlight surveys it relies on to detect gliders are limited to a one kilometre transect through a coupe.  This leaves most of the coupe unsurveyed, and provides incomplete information about whether gliders are present and where their home range is located.  Without knowing where the gliders are within a coupe, it is not possible for VicForests to take management actions to address risks to them. 

Moreover, the management actions that VicForests currently takes to protect greater gliders and yellow-bellied gliders in East Gippsland are not effective to address risks to them.  Effective management actions to address the risks to greater gliders and yellow-bellied gliders, based on the ecological expert evidence, are set out at Issues 5 and 8 above.

(11)Is VicForests applying s 2.2.2.4 of the Code in the Central Highlands?     

For similar reasons, VicForests is not applying s 2.2.2.4 of the Code in the Central Highlands.  It does less in the Central Highlands to identify whether and where gliders are present, because it does not specifically survey for yellow-bellied gliders.  The management actions it takes in relation to greater gliders are not effective to address risks to them.  It takes no specific management action for the protection of yellow-bellied gliders in the Central Highlands.  Effective management actions to address risks to both species were identified by the ecological experts, as summarised at Issues 5 and 8 above.

(12)In East Gippsland, is VicForests correctly applying cl 4.2.1.3 of the Standards?     

No.  The location, composition and shape of a protection area of approximately 100 hectares of ‘suitable habitat’ for a relative abundance of greater gliders or yellow-bellied gliders should be guided by the ten principles agreed by the expert ecologists.  At present, VicForests is not guided by the ten principles for determining suitable habitat when designing a protection area of suitable habitat for a threshold population of gliders, and it does not propose to adopt them.

VicForests currently has no criteria for determining whether a population of gliders detected in East Gippsland is a ‘substantial population’ in ‘isolated habitat’ for the purposes of Table 13.  The ecological evidence provided criteria for identifying a ‘substantial population’ of gliders in ‘isolated habitat’.  A ‘substantial population’ of greater gliders is at least 20 greater gliders within 100 hectares, and ‘substantial population’ of yellow-bellied gliders is at least two family groups of at least three yellow-bellied gliders within 100 hectares.  Isolated habitat is suitable habitat surrounded by hostile habitat at least 100 metres wide, where any corridors of suitable habitat through the hostile habitat are less than 100 metres wide.

(13)     Is VicForests likely, absent an order of the Court, to apply cl 4.2.1.3 of the Standards incorrectly in future?

Yes.  Based on the evidence of VicForests’ Regional Manager East Gippsland, I am satisfied that it is likely to misapply cl 4.2.1.3 of the Standards in future absent an order of the Court.

(14)Should injunctions be granted in the form sought by the plaintiffs, or in some other form?     

Injunctions should be granted to give effect to my conclusions in relation to Issues 5, 8, 9, 10 and 11.  I will hear from the parties about their final form, by reference to a formulation that I propose below.

(15)Should declarations be granted in the form sought by the plaintiffs, or in some other form?     

Declarations should be made in the East Gippsland proceeding, although not in the precise form sought by EEG.  I do not consider it necessary to make declarations that cover the same ground as the injunctions that will be ordered in each proceeding.

1. These are my reasons for reaching those conclusions.

Regulation of timber harvesting in State forests

1. Victoria’s forest estate comprises large tracts of public land reserved as State forest under the Forests Act 1958 (Vic). Much of this State forest is found in eastern and north-eastern Victoria, in East Gippsland and in the Central Highlands region.

1. The regulation of timber harvesting in State forests occurs within a national policy framework that includes the EPBC Act and the Regional Forest Agreements Act 2002 (Cth). Victoria and the Commonwealth have entered into five Regional Forest Agreements or RFAs, including the East Gippsland RFA and the Central Highlands RFA. Under these RFAs, Victoria has agreed to implement Forest Management Systems for East Gippsland and the Central Highlands that include the Timber Act, the Flora and Fauna Guarantee Act 1988 (Vic), and the systems and processes established by the Code.

1. A component of these RFAs is the establishment of the Comprehensive, Adequate and Representative or CAR reserve system, under which areas of public and private land are designated by the Victorian government for conservation purposes.  Timber harvesting is not permitted in CAR reserves.

1. Forestry operations undertaken in accordance with an RFA are exempt from the requirements for environmental approvals in the EPBC Act.[8]

   [8]Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 38(1) (EPBC Act).  See also VicForests v Friends of Leadbeater’s Possum Inc (2021) 285 FCR 70, [117]–[130].

1. The Timber Act is the legislative cornerstone of the Forest Management Systems that Victoria must implement under the RFAs. Its main purposes include providing a framework for sustainable forest management and sustainable timber harvesting in State forests.[9] 

   [9]Timber Act, s 1(a).

1. Part 2 of the Timber Act is headed ‘Sustainable forest management’. It begins with the principles of ecologically sustainable development set out in s 5, as follows:

(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 wellbeing 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.

1. The Timber Act provides that all timber resources in State forest are the property of the Crown, and that property in timber resources only passes from the Crown in accordance with the Timber Act.[10] Under s 13 of the Timber Act, the Minister may by order allocate timber in State forests to VicForests for the purposes of harvesting and selling timber resources. On the publication of an order under s 13 in the Government Gazette, property in the timber allocated by the order is vested in VicForests.[11] VicForests may only harvest and sell vested timber resources in accordance with the allocation order,[12] and must carry out its relevant functions in accordance with the order.[13]

   [10]Timber Act, s 12A.

   [11]Timber Act, s 14(1).

   [12]Timber Act, s 14(2).

   [13]Timber Act, s 16.

1. The Allocation Order made by the Minister in October 2013 has been amended from time to time, most recently on 24 April 2019. The Allocation Order specifies a number of conditions with which VicForests is required to comply, including compliance with all relevant Codes of Practice made under the CFL Act.[14]

   [14]Minister for Agriculture (Vic), ‘Allocation (Amendment) Order 2019’, Victoria Government Gazette, No S 153, 24 April 2019, 3, cl 8.

1. VicForests must prepare a timber release plan in respect of an area to which an allocation order applies, which must be consistent with both the allocation order and any relevant Code of Practice relating to timber harvesting.[15]  The timber release plan must include a schedule of coupes selected for timber harvesting and associated road access requirements.  It must also include details of the location and approximate timing of timber harvesting in the proposed coupes.[16] Section 44 of the Timber Act provides that VicForests must carry out its functions and powers under the Act in relation to vested timber resources in accordance with any timber release plan. Under s 45 of the Timber Act, it is an offence to undertake timber harvesting operations in a State forest that are not ‘authorised operations’ — which includes timber harvesting operations undertaken by or on behalf of VicForests other than in accordance with an allocation order and the relevant timber release plan.

   [15]Timber Act, s 37.

   [16]Timber Act, s 38.

1. Part 5 of the CFL Act empowers the Minister to make Codes of Practice which specify standards and procedures for the carrying out of any of the objects or purposes of a ‘relevant law’ — which includes the Timber Act.[17]  These Codes of Practice are prescribed to be legislative instruments for the purposes of the Subordinate Legislation Act 1994 (Vic).[18]  I proceed on the basis that they are instruments of a legislative character and hence subordinate instruments to which the Interpretation of Legislation Act 1984 (Vic) applies.[19]

   [17]Conservation, Forests and Lands Act 1987 (Vic) , s 3 (definition of ‘relevant law’), s 31, sch 1 (CFL Act).

   [18]Subordinate Legislation Act 1994 (Vic), s 3 (definition of ‘legislative instrument’), s 4A; Subordinate Legislation (Legislative Instruments) Regulations 2021 (Vic), reg 7, sch 2, item 6.1.

   [19]Interpretation of Legislation Act 1984 (Vic), s 38 (definition of ‘subordinate instrument’). While this question was not directly addressed by the parties, both sides submitted that the Code and Standards should be construed on the basis that they are subordinate legislation.

1. The Code with which these proceedings are concerned is one such Code of Practice. Compliance with the Code is required by s 46 of the Timber Act.[20]

   [20]CFL Act, s 39(a) provides that compliance with a Code of Practice is not required unless the Code of Practice is incorporated in or adopted by a relevant law.

1. The Flora and Fauna Guarantee Act is also part of the Forest Management System in place in East Gippsland and the Central Highlands, and is another relevant law for the purposes of the CFL Act. The Flora and Fauna Guarantee Act sets out its objectives in s 4 and principles in s 4A. One principle of the Flora and Fauna Guarantee Act is that a decision, policy, program or process is to give proper consideration to the precautionary principle, ‘such that 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’.[21] Under s 4B, public authorities — which are defined to include State-owned enterprises such as VicForests — must give proper consideration to various matters, including action statements prepared under s 19. Relevant here is the Greater Glider Action Statement prepared by DELWP in 2019 under s 19 of the Flora and Fauna Guarantee Act. There is currently no action statement in respect of yellow-bellied gliders.

   [21]Flora and Fauna Guarantee Act 1988 (Vic), s 4A(d).

Relevant provisions of the Code and the Standards

1. Section 1.2.1 of the Code is titled ‘Why a Code of Practice for Timber Production?’.  The answer that follows is:

Maintaining the benefits to society provided by forest ecosystems depends on balancing community needs and concerns with careful stewardship and responsible management.  The effective implementation of the Code helps to ensure that timber production is compatible with the conservation of the wide range of values associated with forests, and of any such values associated with land on which commercial plantation development is proposed.

1. The purpose of the Code is set out in s 1.2.2:

The purpose of the Code is to provide direction to the managing authority, harvesting entities and operators to deliver sound environmental performance when planning for and conducting commercial timber harvesting operations in a way that:

·permits an economically viable, internationally competitive, sustainable timber industry;

·is compatible with the conservation of the wide range of environmental, social and cultural values associated with forests;

·provides for the ecologically sustainable management of timber harvesting operations in native forests within State forests until 2030 when timber harvesting operations in native forests will cease; and

·enhances public confidence in the management of timber production in Victoria’s forests and plantations.

1. Throughout the Code, bold type is used to designate words and phrases that are defined in the Glossary.  A key phrase is ‘timber harvesting operation’ which is defined to mean:

[A]ny of the following kinds of activities carried out by any person or body for the purposes of sale or processing and sale —

(a) felling or cutting of trees or parts of trees;

(b) taking or removing timber;

(c) delivering timber to a buyer or transporting timber to a place for collection by a buyer or sale to a buyer;

(d) any works, including road works, site preparation, planting and regeneration, ancillary to any of the activities referred to in paragraphs (a) to (c)—

but does not include—

(e) the collection or production of firewood for domestic use.

This definition is similar but not identical to the definition of ‘timber harvesting operations’ in s 3 of the Timber Act.

1. The scope of the Code is described in s 1.2.4:

The Code applies to the planning and conducting of all commercial timber production and timber harvesting operations on both public land and private land in Victoria.  The Code does not apply to the collection or production of firewood for domestic use.  Any haulage, road construction, significant road improvement operations or road maintenance works, tending, regeneration or rehabilitation activities conducted in association with a timber harvesting operation are by definition, also a timber harvesting operation.  The provisions of this Code apply to all timber harvesting operations, unless the provision expressly excludes specified timber harvesting operations from its operation.

1. The Code applies to ‘the managing authority, harvesting entities and operators’.[22]  The Glossary defines the ‘managing authority’ to be ‘a person or body responsible for the planning and management of a timber harvesting operation’.  In State forests, the managing authority is VicForests.  A ‘harvesting entity’ is defined to be a person or body responsible for conducting a timber harvesting operation.  VicForests is a harvesting entity in State forests.

   [22]Code, s 1.2.6.

1. Section 1.2.4 also explains the role of the Standards, and their relationship with the Code:

Schedule 1 to this Code, referred to as the Management Standards and Procedures, forms part of this Code.

The Management Standards and Procedures provide detailed mandatory operational instructions, including region specific instructions for timber harvesting operations in Victoria’s State forests.

The Management Standards and Procedures are consistent with the Operational Goals and Mandatory Actions and must be complied with for timber harvesting operations in Victoria’s State forests.

The Management Standards and Procedures are informed by relevant policy documents including policies relating to specific forest values such as threatened species, guidelines and strategies within forest management plans made under the Forests Act 1958 and Action Statements made under the Flora and Fauna Guarantee Act 1988. The Management Standards and Procedures replace any directions relating to timber harvesting operations contained within these documents.

1. The interpretation of the Code and Standards is expanded on in s 1.2.4A, which provides:

All references to the Code, subject to any contrary intention, include references to the Management Standards and Procedures.

A provision in the body of the Code prevails over any provision in the Management Standards and Procedures to the extent of any inconsistency.

The provisions of the Code are referred to as sections. The provisions of the Management Standards and Procedures are referred to as clauses.

1. As part of the Code, the Standards apply to all commercial timber harvesting operations in Victoria’s State forests.[23]  The role of the Standards in relation to the Code is explained in cl 1.2 of the Standards:

   [23]Management Standards and Procedures for timber harvesting operations in Victoria’s State forests, cl 1.1 (Standards).

1.2 Role

1.2.1.1 This Schedule provides standards and procedures to instruct managing authorities, harvesting entities and operators in interpreting the requirements set out in the main body of the Code.

1.2.1.2These Management Standards and Procedures are in addition to the mandatory actions set out in the main body of the Code.

1. Returning to the Code, its conceptual structure involves three tiers:[24]

   [24]Code, s 1.2.10.

(a)        Code Principles, which are broad outcomes that express the intent of the Code for each aspect of sustainable forest management;

(b)       Operational Goals, which state the desired outcome or goal for each specific area of timber harvesting operations, to meet the Code Principles; and

(c)        Mandatory Actions, which are actions to be conducted in order to achieve each Operational Goal.

1. Section 1.3 of the Code explains that the six Code Principles ‘are developed from the internationally recognised Montreal Process criteria, and are consistent with the objectives of the Sustainability Charter for Victoria's State forests’.  The Code Principles are that:

1. Biological diversity and the ecological characteristics of native flora and fauna within forests are maintained.

2. The ecologically sustainable long-term timber harvesting capacity of forests managed for timber harvesting is maintained or enhanced.

3. Forest ecosystem health and vitality is monitored and managed to reduce pest and weed impacts.

4. Soil and water assets within forests are conserved. River health is maintained or improved.

5. Historic places and Aboriginal cultural heritage within forests are protected and respected.

6. Planning is conducted in a way that meets all legal obligations and operational requirements.

1. Section 1.3 goes on to provide:

Timber production must always be planned and conducted according to knowledge developed from research and management experience so as to achieve the intent of the Code Principles. Application of this knowledge will ensure that timber can continue to be utilised while ensuring that impacts on soil, water, biodiversity, forested landscapes, historic places and Aboriginal cultural heritage are avoided or minimised.

1. Table 1 in s 1.3 sets out the Operational Goals that are aligned with each Code Principle.  In relation to the first Code Principle, concerning biodiversity, Table 1 relevantly provides:

Code Principles	Operational Goals	Section
Biological diversity and ecological characteristics of native flora and fauna within forests is maintained.	Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and implementation. …	2.2.2 and 3.2.2 Conservation of Biodiversity …
…	…
Harvested native forest is managed to ensure that the forest is regenerated and the biodiversity of the native forest is perpetuated. ….	2.2.2 and 3.2.2 Conservation of Biodiversity …

1. Chapter 2 of the Code applies to timber harvesting operations in State forests.[25]  Section 2.2 concerns environmental values in State forests, including native forests.  The introduction to s 2.2 says:

Timber harvesting operations in native forests may have local impacts on environmental values such as water quality and biodiversity.  Appropriate planning and management through the lifecycle of the timber harvesting operation can minimise these impacts.  This section includes requirements that must be observed during planning, roading, harvesting, tending and regeneration of native forests.

[25]Chapter 3 applies to private native forests, and Chapter 4 applies to plantations.

1. Section 2.2 goes on to address various environmental values including, in s 2.2.2, conservation of biodiversity. The Code adopts the definition of biodiversity used in the Flora and Fauna Guarantee Act, which is:

biodiversity means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems) and includes—

(a)      diversity within species and between species; and

(b)      diversity of ecosystems.

1. Section 2.2.2 — Conservation of Biodiversity sits at the heart of these proceedings.  It begins by setting out several Operational Goals, the first of which is most relevant:

Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and management.

1. The section then sets out mandatory actions to be taken in order to achieve each of the Operational Goals.  In relation to the first Operational Goal, the following mandatory actions are prescribed:

Mandatory Actions

Addressing biodiversity conservation risks considering scientific knowledge

2.2.2.1 Planning and management of timber harvesting operations must comply with relevant biodiversity conservation measures specified within the Management Standards and Procedures.

2.2.2.2The precautionary principle must be applied to the conservation of biodiversity values.  The application of the precautionary principle will be consistent with relevant monitoring and research that has improved the understanding of the effects of forest management on forest ecology and conservation values.

Note:

It is intended by the definition of the precautionary principle and section 2.2.2.2 that the precautionary principle and its application in section 2.2.2.2 be understood as it was by Osborn J in Environment East Gippsland Inc v VicForests [2010] VSC 335 (in relation to the precautionary principle as it appeared in the Code of Practice for Timber Production 2007).

2.2.2.3The advice of relevant experts and relevant research in conservation biology and flora and fauna management must be considered when planning and conducting timber harvesting operations.

2.2.2.4 During planning identify biodiversity values listed in the Management Standards and Procedures prior to roading, harvesting, tending and regeneration.  Address risks to these values through management actions consistent with the Management Standards and Procedures such as appropriate location of coupe infrastructure, buffers, exclusion areas, protection areas, management areas, modified harvest timing, modified silvicultural techniques or retention of specific structural attributes.

2.2.2.5Protect areas excluded from harvesting from the impacts of timber harvesting operations.

2.2.2.6Ensure chemical use is appropriate to the circumstances and provides for the maintenance of biodiversity.

2.2.2.7 Rainforest communities must not be harvested.

1. The Glossary to the Code includes a definition of the precautionary principle:

‘precautionary principle’ means that 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.

In the application of the precautionary principle, decisions by managing authorities, harvesting entities and operators must be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options.

Note:

It is intended by this definition and section 2.2.2.2 that the precautionary principle and its application in section 2.2.2.2 be understood as it was by Osborn J in Environment East Gippsland Inc v VicForests [2010] VSC 335 (in relation to the precautionary principle as it appeared in the Code of Practice for Timber Production 2007).

1. For the purposes of s 2.2.2.1 of the Code, the biodiversity conservation measures specified in the Standards include cl 4.2.1, which provides for detection-based management of fauna and flora:

4.2.1 Detection-based management

4.2.1.1 Detection based management obligations apply in any area that may be affected by current or planned timber harvesting operations, and in any area in which an obligation may affect the conduct of such timber harvesting operations (for example, if a protection area would include an area within which timber harvesting operations are proposed).

4.2.1.2 If evidence of the presence of a value listed in Table 13 Rare or threatened fauna and invertebrate prescriptions or Table 14 Rare or threatened flora prescriptions is identified, the managing authority must:

a)   notify the Secretary, providing details (including spatial information) of evidence and the value location; and

b)   unless the Secretary otherwise approves, take appropriate steps to verify evidence of the presence of the value.

Note: The Secretary may otherwise approve if the Secretary intends to take steps to verify the existence of the value.

4.2.1.3 If evidence of the presence of a value listed in Table 13 Rare or threatened fauna and invertebrate prescriptions or Table 14 Rare or threatened flora prescriptions is verified, apply and undertake any associated management action specified in the Table.

…

4.2.1.6The managing authority must comply with the requirements of clause 4.2.1.2, 4.2.1.3, 4.2.1.4 and 4.2.1.5, either:

a)   prior to the commencement of timber harvesting operations; or

b)   if a requirement only arises after timber harvesting operations have commenced, as soon as possible after the requirement arises.

1. Table 13 in Appendix 1 to the Standards lists a large number of rare or threatened fauna and invertebrates, including the greater glider and the yellow-bellied glider.  In the East Gippsland FMA, but not in the Central Highlands FMAs, certain management actions are prescribed for both species:

Species name	Value	Applicable FMAs	Management Actions
Greater Glider Petauroides volans	Relative abundance (More than 10 per Spotlight Kilometre)	East Gippsland FMA	Apply a protection area of approximately 100 ha of suitable habitat where records report a relative abundance of more than 10 individuals per spotlight kilometre (equivalent to more than 2 individuals per hectare or more than 15 individuals per hour of spotlighting), or where substantial populations are located in isolated or unusual habitat. Note: Assumed rate of spotlighting per kilometre is 100mins per 1km and visible range either side of transect for this species is 25m, equating to assumed minimum survey area of 5 hectares.
Yellow-bellied Glider Petaurus australis	Relative abundance (More than 5 per Spotlight Kilometre)	East Gippsland FMA Otways FMA	Apply a protection area of approximately 100 ha of suitable habitat where records report a relative abundance of more than 5 individuals per spotlight kilometre (equivalent to more than 0.2 individuals per hectare or more than 7 individuals per hour of spotlighting), or where substantial populations are located in isolated or unusual habitat. Note: Assumed rate of spotlighting per kilometre is 10mins per 100m and visible range either side of transect is 150m, equating to assumed minimum survey area of 30 hectares.

1. Table 14 in Appendix 1 to the Standards lists rare or threatened species of flora and prescribes various management actions in respect of those species.

VicForests’ timber harvesting operations

1. Several VicForests witnesses gave detailed evidence about its timber harvesting operations in State forest.  What follows is based on the evidence of VicForests’ Chief Executive Officer, Monique Dawson,[26] its Manager Forest Practices, James Gunn,[27] and its Director Environmental Performance, William Paul.[28]

   [26]Affidavit of Monique Dawson dated 6 April 2022 (Dawson affidavit).

   [27]Affidavit of James Murdoch Gunn dated 8 April 2022 (Gunn affidavit).

   [28]Affidavit of William Edward Paul dated 7 April 2022 (Paul affidavit).

1. Victoria has more than 7 million hectares of native forest on public land, almost 4 million hectares of which is in dedicated conservation areas such as national parks.  The remaining 3.14 million hectares of State forest is managed in accordance with the regulatory scheme described above, with parts of it allocated to VicForests for harvesting and sale. 

1. The current Allocation Order sets out the forest stands allocated to VicForests, together with five-year harvest limits.  The five-year harvest limit for the period 1 July 2018 to 30 June 2023 is 13,700 hectares of Ash forest[29] and 70,500 hectares of Mixed Species forest.[30]  The same five-year harvest limits apply for five year periods commencing from 1 July 2023.  VicForests harvests approximately 2,500 hectares of State forest in a typical year - about 70% of this in the Central Highlands and 10 to 15% in East Gippsland.

   [29]Ash forest comprises areas of State forest dominated by Eucalyptus delegatensis, E. regnans or E. nitens.

   [30]The major species typical of Mixed Species forest include Eucalyptus obliqua, E. cypellocarpa, E. fastigata, E. radiata, E. denticulata, E. viminalis, E. robertsonii, E. bicostata, E. sieberi, E. globoidea, E. muelleriana.

1. In November 2019, the Victorian government announced that timber harvesting in Victoria’s native forests would be phased out by 2030, with an initial step-down in 2024.  In association with this announcement, the government developed the Victorian Forestry Plan, under which more than $200 million in funding will be made available to assist the forestry industry to manage the gradual transition away from native forest harvesting. 

1. The Victorian Forestry Plan also contemplates that VicForests will meet its existing contractual obligations to supply timber to mills to mid-2024.  Until that time, VicForests is expected to supply 138,000 cubic metres of Ash D+ grade sawlogs and 115,000 cubic metres of Mixed Species D+ grade saw logs in each financial year.  The timber allocation process for 2024 to 2030 is to commence during 2022, with an expectation that the volumes of timber to be supplied by VicForests will reduce to zero by 2030.

Forest Management Zoning Scheme

1. The Forest Management Zoning Scheme or FMZS is a planning scheme administered by DELWP comprising zones that set the priorities and permitted uses in different parts of State forest.[31]  It is ‘a product of broad strategic planning and is a spatial representation of forest values which are managed in Victoria’s State forests’.[32]

   [31]Code, Glossary (definition of ‘Forest Management Zoning Scheme’).

   [32]Code, s 1.2.12.

1. There are three main management zones within the FMZS:

(a)        the Special Protection Zone or SPZ, which is managed primarily for conservation values as part of Victoria’s Comprehensive, Adequate and Representative reserve system.[33]  Timber harvesting operations are generally excluded from the SPZ;

(b)       the Special Management Zone or SMZ, which is managed to conserve specific features and values, while catering for sustainable timber production and some other activities; and

(c)        the General Management Zone or GMZ, in which sustainable timber production is a major use.

[33]The Comprehensive, Adequate and Representative reserve system is a component of both the East Gippsland RFA and the Central Highlands RFA.

1. Maps depicting the zoning of the East Gippsland FMA and the Central Highlands FMAs are Figures 1 and 2 respectively.

Figure 1: Map of East Gippsland FMA, exhibited to the affidavit of Monique Dawson dated 6 April 2022.

Figure 2: Map of Central Highlands FMAs, exhibited to the affidavit of Monique Dawson dated 6 April 2022.

1. Also shown on these maps are Immediate Protection Areas or IPAs, which were set aside by the Victorian government in 2019 as a conservation measure to protect threatened species, including the greater glider.  These IPAs amount to about 96,000 hectares of threatened species habitat in East Gippsland, the Central Highlands, the Strathbogie Ranges and Mirboo North.  The Victorian government has directed VicForests not to undertake timber harvesting operations within IPAs, even where they have been allocated to VicForests in the current Allocation Order.

Coupe planning

1. As mentioned, the timber release plan prepared by VicForests includes a schedule of coupes selected for timber harvesting and associated road access requirements.  Before any coupe can be harvested, VicForests must plan its timber harvesting operations to meet the requirements of the Code.[34]  As part of that planning exercise, VicForests prepares the following documents for each coupe:

   [34]Code, s 2.3.1.2.

(a)        a forest operations coupe plan;

(b)       a forest operations map;

(c)        a High Conservation Value or HCV summary and retention plan; and

(d)       HCV data management maps.

1. Mr Gunn explained that the preparation of coupe plans by VicForests begins with a ‘coupe reconnaissance’ process in respect of each coupe.  The goal of the reconnaissance process is to produce viable, risk-assessed coupes and to identify possible environmental and management risks before more detailed coupe planning takes place.  Information about a proposed coupe is gathered and kept in the file for each coupe, as well as being entered into an electronic planning system called Cengea and stored as spatial or textual data within VicForests’ spatial data storage. 

1. Coupe reconnaissance involves both desktop and on-the-ground information gathering and assessment.  During the desktop assessment, a member of VicForests’ tactical planning team analyses spatial data records including:

(a)        existing habitat or threatened species records within or adjacent to the coupe;

(b)       modelled threatened species habitat and threatened or rare forest or plant communities;

(c)        mapped forest type and species mix;

(d)       certain forest management zones or dedicated reserves that are known to contain threatened species populations or habitat, within or adjacent to the coupe; and

(e)        a range of LiDAR[35] derived spatial layers.

[35]LiDAR is an acronym used to refer to light detection and ranging technology.

1. After the desktop assessment, foresters undertake field assessments on the ground to verify the existence of the mapped or modelled values identified during the desktop assessment, and to provide further information for VicForests’ operations planning team.  Foresters conduct a range of field assessments, including targeted species surveys, targeted species habitat surveys, cultural heritage surveys and advice, rainforest or threatened flora community assessments, and old growth forest surveys.

1. The survey methods employed by VicForests to identify whether greater gliders and yellow-bellied gliders are present in a coupe are considered in detail below, in my discussion of Issues 3 and 6 respectively.

1. An important survey that is conducted at this point is a habitat and hollow-bearing tree planning survey.  The purpose of this survey is to capture representative habitat data for arboreal hollow-dependent species, including greater gliders and yellow-bellied gliders.  It also involves identifying the density and location of hollow-bearing trees within the coupe.

1. Habitat tree surveys are conducted in accordance with VicForests’ Habitat Tree Survey Guideline, in the following manner:

(a)        The coupe is overlaid with a one hectare (100 metre by 100 metre) grid, with a plot centroid located at the centre of each hectare.

(b)       In Ash-dominant stands of forest, the survey is conducted at the centroid of each hectare.  In Mixed Species stands, where Ash does not predominate, every second hectare is surveyed.

(c)        The surveying forester walks to each plot centroid location, and at each point uses a phone app and GPS to record the attributes and location of trees within a 30 metre radius.

(d)       As well as assessing hollow-bearing trees at each point, the forester records any other hollow-bearing trees observed during the survey, any signs of threatened species habitat (such as an owl roost), and other significant environmental values (such as a Tree Geebung).

(e)        Specific trees are classified into Habitat Type 1, 2 or 3, according to criteria that vary between Ash and Mixed Species forest.  Type 1 habitat trees are typically late mature to senescent trees that are most likely to contain hollows; Type 2 habitat trees are mature trees beginning to develop hollows, or dead hollow-bearing trees; Type 3 habitat trees are those trees likely to be the next to develop hollows.

1. The data recorded during the survey is then uploaded to Cengea, and represents a spatial dataset which can be used to produce a map of the coupe depicting the actual locations of trees identified in the field during the survey.  The information is used in planning to guide the specific silviculture systems and retention patterns selected for the coupe.

Operations planning

1. At the operations planning stage, a forester produces for each coupe an HCV summary and retention plan and HCV data management map, a forest operations coupe plan, and a forest operations map, using the information gathered during coupe planning.  These documents describe the biodiversity and conservation values identified in the coupe and the method by which those values will be managed — including the silvicultural or harvesting system to be employed.

1. The coupe plan, operations map and HCV map specify how the coupe is proposed to be harvested, and represent the planned harvesting system to be used.  The coupe plan contains specifications and operational requirements that must be followed by the harvesting contractor when harvesting the coupe — including how and where to harvest.

1. VicForests draws on a range of information to determine the harvesting system to use for a coupe, and the areas of forest to be retained.  Mr Paul said that the data sets used typically include:[36]

   [36]Paul affidavit, [103].

·     Code requirements relevant to the area;

·     Habitat tree density from surveys and modelling assessments;

·     Topographical features including contours and waterways;

·     Habitat distribution models;

·     Modelled old growth forest;

·     Threatened Ecological Vegetation classes (EVCs);

·     The Forest Management Zoning Scheme defined in the Code;

·     Threatened species detections;

·     Any other data or information about values that are relevant (e.g. bushfire mapping).

1. Harvesting in a coupe may not commence until the coupe plan has been sanctioned, which involves the plan being signed by VicForests’ supervising forester and the contractor.  A sanctioned coupe plan for a coupe represents VicForests’ final decision to harvest the coupe, and the harvesting method to be used.

Harvesting systems

1. VicForests uses a range of harvesting and regeneration systems, with increasing levels of habitat retention and reducing harvest intensity.  The harvesting system selected for a coupe is determined by the density of Type 1 habitat trees that are found during the habitat tree survey.  Depending on other values within the coupe, including the presence of a threatened species, more than one harvesting system may be used for the coupe.

1. The most intense form of harvesting is clearfall harvesting.  This system is typically used where the density of Type 1 habitat trees is less than three per hectare.  It involves retaining up to four or five trees per hectare, which is the minimum habitat tree retention requirement for East Gippsland and the Central Highlands prescribed in Table 12 of the Standards.

1. Next most intense is seed tree harvesting, which involves the retention of five to ten seed trees or habitat trees per hectare, across the harvest area of the coupe.  It also is used where the density of Type 1 habitat trees is less than three per hectare.

1. Variable retention 1 or VR1 harvesting is usually used where the density of Type 1 habitat trees is between three and six per hectare.  VR1 harvesting sees the retention of existing habitat trees and recruitment trees, with 10 or more trees per hectare retained across the harvest area.

1. Variable retention 2 or VR2 harvesting is typically used where the density of Type 1 habitat trees is between seven and nine per hectare.  It involves higher levels of aggregated and dispersed retention across the coupe, indicatively retaining 20 or more trees per hectare across the harvest area.

1. The least intensive harvesting system is selection or selective harvesting, where individual trees or small groups of trees are selected and removed.  This system may be used where the density of Type 1 habitat trees is greater than nine per hectare.

1. Mr Paul identified two other harvesting systems used by VicForests — regrowth retention harvesting and thinning.  Regrowth retention harvesting is used in Ash forests with advanced regrowth, such as 1939 bushfire regrowth.  It is a form of aggregated retention that overlaps with VR1 and VR2 harvesting systems, and wider retention areas around the outside of the harvest area and retained islands within the harvest area.  Thinning is a harvesting system used in young, even aged-regrowth stands to release retained stems (trees) from competition for light, water and nutrients.

1. Following the 2019 announcement that timber harvesting in native forests is to be phased out by 2030, VicForests reaffirmed that the ‘almost universal application of Variable Retention Harvesting would be a key feature of VicForests’ harvesting approach’.[37]  It took this approach because variable retention harvesting had been shown to allow harvesting of commercial quantities of timber while delivering a better biodiversity outcome.

   [37]Dawson affidavit, [74].

1. According to Ms Dawson, VicForests’ adoption of variable retention harvesting ‘means that its operations can support the persistence of arboreal marsupials in active harvest areas, while also encouraging re-colonisation of harvested areas over time’.  The plaintiffs dispute this.  Their position is that variable retention harvesting, as it is practised by VicForests, will cause the destruction of any greater gliders and yellow-bellied gliders that may be present in the forest that is harvested.

Ecological evidence

1. I heard expert evidence from two ecologists — Associate Professor Grant Wardell-Johnson, who was called by the plaintiffs, and Dr Benjamin Wagner, who was called by VicForests.

1. Associate Professor Wardell-Johnson completed a Bachelor of Science in forestry at the Australian National University in 1979.  He also obtained a Master of Science degree in forestry in relation to land management from Oxford University in 1985, and a Doctorate of Philosophy in botany at the University of Western Australia in 1998.  He worked for 18 years for the Western Australian Forests Department and Department of Conservation and Land Management, as a forestry officer and research scientist in the south-west forests of Western Australia.  He then spent 22 years as an academic at several universities, researching and teaching wildlife ecology, botany, disturbance ecology, climate change, restoration ecology, landscape ecology and advanced topics in ecology.  Associate Professor Wardell-Johnson has extensive experience conducting field-based research, including in Australian eucalypt forests, and has more than 200 peer reviewed publications.  He is currently an Associate Professor at Curtin University in Western Australia, in the School of Molecular and Life Sciences and Centre for Mine Site Restoration.

1. Associate Professor Wardell-Johnson prepared three reports for these proceedings — his principal report dated 8 March 2022, and two responsive reports dated 13 April 2022 and 21 April 2022. 

1. Dr Wagner is a Research Fellow in forest resilience and adaptation at the School of Ecosystem and Forest Sciences, the University of Melbourne.  He has a Bachelor of Science in forest science and forest ecology, and a Master of Science in forest ecology and forest science from the Georg-August University in Göttingen, Germany.  He also has a Doctorate of Philosophy in forest and landscape ecology from the University of Melbourne.  His doctoral research investigated the habitat requirements of southern greater gliders in Victoria across different scales, and he has studied and surveyed southern greater gliders and their mature forest habitat for the past five years.  Dr Wagner also has numerous publications in the field of forest ecology.

1. Dr Wagner prepared a report dated 1 April 2022.

1. Associate Professor Wardell-Johnson and Dr Wagner met to discuss areas of agreement and disagreement and produced a joint report dated 29 April 2022.  They gave evidence concurrently on the fifth day of the trial, addressing an agreed list of topics.  I am indebted to them both for their clear and carefully expressed opinions in relation to some of the critical issues in these proceedings.

1. There was a great deal about which Associate Professor Wardell-Johnson and Dr Wagner agreed, including the ecology of the southern greater glider and the yellow-bellied glider.  In the next sections of this judgment, I set out some uncontroversial facts about both species, based largely on Associate Professor Wardell-Johnson’s report of 8 March 2022.  Dr Wagner accepted that the introductory section of this report provided ‘a good and comprehensive summary’ of the ecology of southern greater gliders and yellow-bellied gliders.

Greater gliders

1. The southern greater glider or Petauroides volans is one of three species of greater glider, and the only one that is found in Victoria.[38]  It is the largest Australian gliding mammal.  It is found from the montane forests of the Victorian central highlands to northern New South Wales.[39]  Within Victoria, it is distributed throughout the forested parts of eastern Victoria, and as far west as Daylesford. 

   [38]Report of Associate Professor Grant Wardell-Johnson dated 8 March 2022, [11]–[12] (First Wardell-Johnson report).

   [39]First Wardell-Johnson report, [15].

1. Southern greater gliders are mature forest dependent and prefer older tree age classes in moist forest types; they use hollow-bearing trees for shelter and nesting, with up to 20 den trees within their home range.  They are nocturnal, solitary herbivores, feeding almost exclusively on eucalyptus leaves and buds.[40] 

   [40]First Wardell-Johnson report, [15]–[16].

1. The movements of southern greater gliders are mainly restricted to gliding between tree canopies.  The home range of a male is typically between 1.4 and 4.1 hectares; for females the range is between 1.3 and 3 hectares.[41]  Individual gliders have been observed to extend their home range to up to 18 hectares, probably due to habitat fragmentation and resource availability.[42]  Their home ranges may overlap, but they are generally solitary creatures and rarely interact outside of the breeding season between February and May.  A southern greater glider reaches sexual maturity after between 18 months and two years, and lives for up to 15 years.  Females bear a single young each year.[43]

   [41]First Wardell-Johnson report, [16].

   [42]Report of Dr Benjamin Wagner dated 1 April 2022, [2] (Wagner report).

   [43]First Wardell-Johnson report, [16].

1. Of the three species of greater glider, the southern greater glider is thought to be the most threatened and has suffered the sharpest declines.  The species is highly vulnerable to the synergistic impacts of intensive and extensive logging, fire, and global warming.[44]

   [44]First Wardell-Johnson report, [18].

1. Clearing, intense fire, logging, and fragmentation of habitat have long been recognised as the major threats to the southern greater glider.  More recently, extreme droughts and higher temperatures (including overnight temperatures) associated with global warming have been demonstrated to be emerging threats.  These threats may result in a reduction in quality or availability of food and increased morbidity or mortality due to heat stress.[45]  Southern greater gliders are not well equipped to handle high ambient temperatures as they inefficiently use water for evaporation through salivation, and often have limited access to water in their arboreal habitat.[46]

   [45]First Wardell-Johnson report, [19].

   [46]First Wardell-Johnson report, [17].

1. As populations decline and become more isolated, southern greater gliders are more prone to the effects of small population size and potential genetic decline.  Before late 2019, significant logging in the forests of Victoria and New South Wales had led to the removal of large areas of hollow-bearing trees that southern greater gliders depend on, and the species had declined by almost 80% in some areas.  A significant proportion of the species’ habitat burned during the 2019-20 bushfire season, including more than half of the forest set aside in Victoria for glider protection.[47]

   [47]First Wardell-Johnson report, [19].

1. At the time of the trial, greater gliders as a group were listed as ‘vulnerable’ nationally, under the EPBC Act, in Queensland under the Nature Conservation Act 1992 (Qld), and on the Victorian Advisory List of Threatened Vertebrate Fauna. On 5 July 2022, the Commonwealth Minister for the Environment and Water moved the southern greater glider from the vulnerable to the ‘endangered’ category on the list of threatened species made under s 178 of the EPBC Act.[48]

   [48]By consent, on 13 July 2022 I gave leave to the plaintiffs to reopen their case to tender the List of Threatened Species Amendment (Petauroides minor and Petauroides volans (285)) Instrument 2022, along with its explanatory statement, and the updated conservation advice for Petauroides volans issued by the Commonwealth Department of Climate Change, Energy, the Environment and Water on 5 July 2022.

Yellow-bellied gliders

1. The yellow-bellied glider or Petaurus australis is an arboreal gliding possum and the second largest of all gliding marsupials.[49]  Yellow-bellied gliders can be found in native eucalypt forests in eastern Australia, from northern Queensland to Victoria.[50]  It is a nocturnal species that lives in tall, mature eucalypt forest, generally in areas with high rainfall and nutrient rich soils.  In Victoria, yellow-bellied gliders inhabit a range of forest types, predominantly smooth barked eucalypts and mixed eucalypt species.  The species can be found in the forests of East Gippsland, the Eastern Highlands and the Otway Ranges.[51]

   [49]First Wardell-Johnson report, [4].

   [50]First Wardell-Johnson report, [4].

   [51]First Wardell-Johnson report, [6].

(c)        More concerning is that VicForests’ approach to pre-harvest surveys for greater gliders and its harvesting methods in coupes where they are detected (or may be present) is not substantially different from that found in Leadbeater’s Possum No 4.  Justice Mortimer found that VicForests was not applying the precautionary principle to the conservation of greater gliders, and was not likely to do so in future.  I have also found that VicForests’ current survey practice and its ‘almost universal’ use of variable retention harvesting fall well short of what the precautionary principle requires for the conservation of greater gliders.  In particular, VicForests still does not thoroughly survey coupes for greater gliders when planning timber harvesting operations.[305]  It still plans to harvest areas of forest that greater gliders are known to inhabit, in the face of scientific opinion that this is likely to cause the destruction of those gliders.[306]  It still maintains that variable retention harvesting is a less intensive method that meets its obligation to apply the precautionary principle, when the evidence is that it is not effective to conserve greater gliders.[307]

(d)       Section 2.2.2.2 and the definition of the precautionary principle in the Code, as amended in November 2021, now contain an explanatory note that instructs VicForests that the precautionary principle is to be understood and applied in s 2.2.2.2 as it was by Osborn J in Brown Mountain.  That was another case in which it was found that VicForests’ plans to log coupes in East Gippsland without conducting pre-harvest surveys did not comply with the precautionary principle in respect of three threatened species.[308]  Despite the recent clarification of the Code, in these proceedings VicForests maintained that s 2.2.2.2 and the precautionary principle should be understood in a different way, and do not require it to undertake adequate pre-harvest surveys for two other threatened species — greater gliders and yellow-bellied gliders.  I have rejected those arguments.

(e)        In these proceedings, VicForests has continued to resist the idea that its responsibility to apply the precautionary principle to the conservation of biodiversity values means — in the case of greater gliders and yellow-bellied gliders — that it should take care that its timber harvesting operations do not kill them by making their habitat unliveable.  It does so despite the expert ecological evidence — including that of its own expert, Dr Wagner — that the conservation of these species requires more intensive pre-harvest surveys and less intensive methods of harvesting timber.

[305]See [270], [295]–[296] above; cf Leadbeater’s Possum No 4, [945]–[949].

[306]See [223]–[227] above; cf Leadbeater’s Possum No 4, [1014]–[1015], [1038].

[307]See [224]–[227] above; cf Leadbeater’s Possum No 4, [954], [1038]–[1076].

[308]The giant burrowing frog, the large brown tree frog, and the spot-tailed quoll:  Brown Mountain, [501]–[514], [632]–[636].

1. For all of those reasons, I consider it appropriate to grant injunctive relief.

1. Turning to the terms of the injunctions, it will by now be apparent that I am not minded to grant injunctions in the exact terms sought by the plaintiffs.  In particular, I do not consider that the plaintiffs’ survey protocol is appropriate for inclusion in an injunction.  In addition, I prefer Dr Wagner’s approach to the application of the precautionary principle to the conservation of greater gliders and yellow-bellied gliders, as the more proportionate of the two approaches.

1. I propose to grant injunctions to the following effect, to reflect the conclusions I have reached in relation to Issues 5, 8, 9, 10 and 11:[309]

   [309]See especially [216]–[222], [252]–[253], [295], [305]–[306], [310]–[311] above.

(a)        VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA/Central Highlands FMAs that may contain habitat for gliders, unless the coupe has been surveyed using a reasonably practicable survey method that is likely to:

(i)         detect any greater gliders that may be present in the coupe and locate their home ranges; and

(ii)       detect any yellow-bellied gliders that may be present in the coupe and identify their feed trees and hollow-bearing trees in the coupe.

(b)       VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA/Central Highlands FMAs in which greater gliders have been detected unless:

(i)         it excludes the greater gliders’ home ranges from timber harvesting operations; and

(ii)       it retains at least 60% of the basal area of eucalypts in the harvested area of the coupe.

(c)        VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA/Central Highlands FMAs in which yellow-bellied gliders have been detected unless it retains at least 60% of the basal area of eucalypts in the harvested area of the coupe, including all identified feed trees and hollow-bearing trees within the coupe.

1. I will ask the parties to prepare draft orders in each proceeding that give effect to my conclusions, taking these proposed orders as their starting point.  The draft orders should include definitions of terms such as ‘timber harvesting operations’, ‘coupe’, ‘East Gippsland FMA’ and ‘Central Highlands FMAs’ (as applicable).

1. Before turning to the plaintiffs’ claims for declaratory relief, I should explain why I have not accepted VicForests’ submissions about the form of the injunctions.

1. VicForests took an ‘all or nothing’ position in relation to injunctions sought by the plaintiffs.  It has maintained throughout the litigation that it would not engage in an ‘auction’ about the adequacy of its survey methods, and that no injunction should be ordered unless the plaintiffs made out their case for injunctions in the form sought in their pleadings.  VicForests said that it would be unfair if it transpired that the relief granted was different from the relief sought in the pleaded case that it has attempted to meet.

1. I do not accept that position as a matter of law.  Equitable remedies such as injunctions are inherently flexible and can be fashioned to do practical justice between the parties.[310]  As Gaudron, Gummow and Kirby JJ said in Bridgewater v Leahy:[311]

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.

[310]Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296, [503]. See also Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, [24]–[32] (Gaudron, Gummow and Kirby JJ) as to equitable remedies in public law.

[311]Bridgewater v Leahy (1998) 194 CLR 457, [127] (Gaudron, Gummow and Kirby JJ).

1. Here, both plaintiffs have a special interest in the preservation of native forests in their region and so have standing to seek equitable relief to secure compliance by VicForests with the Code.  They have established that VicForests’ current surveying and harvesting practices in East Gippsland or the Central Highlands do not comply with its obligations under s 2.2.2.2 and 2.2.2.4 of the Code, and that VicForests does not intend to change those practices.  They have established the necessary equity to attract relief, which may be framed in a way that reflects my findings.

1. Nor do I accept that it would be unfair to VicForests to grant injunctions in a different form from those sought by the plaintiffs.  The plaintiffs’ pleaded case has never been primarily about the method by which VicForests should conduct spotlight surveys or the exact location and dimensions of areas it should exclude from harvesting for the protection of gliders.  Their central claim is that VicForests should not log State forests in East Gippsland and the Central Highlands without complying with ss 2.2.2.2 and 2.2.2.4 of the Code in relation to greater gliders and yellow-bellied gliders.  Their case throughout has been about the measures that VicForests is obliged by those provisions to take for the conservation of those two species in planning and conducting timber harvesting operations.

1. VicForests has had a full opportunity to meet that case.  It presented detailed evidence about its surveying and timber harvesting practices, from witnesses including its Chief Executive Officer, Ms Dawson, its Manager Forest Practices, Mr Gunn, its Director Environmental Performance, Mr Paul, its Manager, Forest Conservation and Research, Mr Fitzpatrick, and its Regional Manager East Gippsland, Mr Lewis.  It also presented expert evidence from Dr Wagner, a qualified and experienced ecologist of its own choosing.  It made comprehensive written and oral submissions based on that evidence.  The conclusions I have reached have taken all of that into account, and the injunctions I propose to grant are in large part based on Dr Wagner’s opinions.

1. I have given anxious consideration to the need for injunctive relief to be formulated in terms that give rise to ascertainable obligations.[312]  Both sides referred to a great deal of authority on this question, some of which emphasises the desirability of clarity and certainty in an injunction, and some of which reinforces the need for the remedy to be applied practically and with good sense, leaving room for some evaluative judgment.  Ultimately, an injunction is a discretionary remedy that is to be shaped to the particular facts and circumstances of the case, and the extent to which the judgment has resolved the issues to which the injunction relates.[313]

   [312]Brown Mountain, [762].

   [313]ICI Australia, 261 (Lockhart J), 263 (Gummow J), 268 (French J);

1. Injunctions to the effect proposed will do practical justice between the parties, and will enable VicForests to continue sustainable timber harvesting operations while meeting its legal obligations to conserve greater gliders and yellow-bellied gliders.  I do not think that there is any real danger that VicForests will not know what it is and is not permitted to do by the injunctions.  It is accustomed to operating within a regulatory scheme that involves matters of degree and subjective judgment.[314]  The findings made in this judgment, and the reasons given for them, clarify two aspects of that scheme — the obligation in s 2.2.2.2 to apply the precautionary principle to the conservation of biodiversity values, and the obligations imposed by s 2.2.2.4 to identify biodiversity values during planning and take actions to address risks to those values.

   [314]As discussed in Leadbeater’s Possum Appeal, [134]–[144].

Issue 15: Should declarations be granted?

1. The plaintiffs seek the following declarations in both proceedings:

Clause 2.2.2.2 and, independently, clause 2.2.2.4 of the Code requires that:

i. the defendant, during planning and prior to conducting roading or harvesting in any coupe in the East Gippsland FMA/Central Highlands FMAs conduct surveys and/or rely upon surveys that have been conducted to identify Greater Gliders and Yellow-bellied Gliders in that coupe [or in that coupe and the area 75 metres beyond the boundary of that coupe] in accordance with the Survey Protocol or a protocol that is no less effective in identifying Greater Gliders and Yellow-bellied Gliders;.

ii. for each sighting of a Greater Glider:

1. Timber Harvesting Operations must be excluded from a circular area of radius 240 metres centred on the location of the Greater Glider sighting; and

2. the area excluded from Timber Harvesting Operations must be protected, by appropriate buffers if required, from damage by regeneration burns; and

iii. for each sighting of at least 3 Yellow-bellied Gliders within a 20 hectare area:

1. Timber Harvesting Operations must be excluded from a circular area of radius 350 metres from the approximate centre of the locations of those gliders; and

2. the area excluded from Timber Harvesting Operations must be protected, by appropriate buffers if required, from damage by regeneration burns.

1. I do not consider that declarations in that form are appropriate or necessary, in light of the injunctions to be granted in both proceedings.

1. In addition, in the East Gippsland proceeding, EEG seeks the following declarations in relation to the application of cl 4.2.1.3 of the Standards and the Table 13 prescriptions:

a. For purposes of the Management Action for the Greater Glider in the East Gippsland Forest Management Area in Table 13 of the Standards, a substantial population in isolated habitat is a population of more than two Greater Gliders located in greater than three hectares of suitable habitat that is surrounded by at least 100 metres width of Hostile Habitat where any corridors of suitable habitat traversing the Hostile Habitat are less than 100 metres in width.

b. For purposes of the Management Action for the Yellow-bellied Glider in the East Gippsland Forest Management Area in Table 13 of the Standards, a substantial population in isolated habitat is a population of more than two Yellow-bellied Gliders located in greater than 30 hectares of suitable habitat that is surrounded by at least 100 metres width of Hostile Habitat where any corridors of suitable habitat traversing the Hostile Habitat are less than 100 metres in width.

c. For purposes of both the Management Action for the Greater Glider in the East Gippsland Forest Management Area in Table 13 of the Standards and the Management Action for the Yellow-bellied Glider in the East Gippsland Forest Management Area in Table 13 of the Standards:

i. a protection area of approximately 100 ha of suitable habitat must be applied on each occasion that records report the requisite relative abundance and for each occurrence of a substantial population that is located in isolated or unusual habitat; and

ii. the words “suitable habitat” refer to habitat which is Suitable Habitat.

1. Two key terms in these proposed declarations are ‘Hostile Habitat’ and ‘Suitable Habitat’, which are defined in the orders sought by EEG as follows:

Hostile Habitat means land cleared of forests and/or plantations and/or forest that was last harvested less than 50 years ago.

Suitable Habitat means habitat that satisfies the criteria set out in Annexure B.

1. Annexure B to the proposed orders sets out criteria drawn from Associate Professor Wardell-Johnson’s ten principles:

1. Subject to paragraph 2, Suitable Habitat means habitat which

(a) has its location, composition and boundaries determined by the location of populations of the species of Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area to provide the greatest opportunity for their persistence;

(b) include all recent records of the particular cluster of Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area, noting that Yellow-bellied Gliders may move around within their home range seasonally;

(c) include structurally diverse forest evidenced by large, mature trees, feed trees, and records of other mature forest dependant species with few or no signs of previous intensive logging activity;

(d) include mature forest suitable for the Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area, including:

(i) favoured species, for Greater Gliders; and

(ii) transitions, where possible, from wet sclerophyll to lowland forest, or mature gully forest that includes a variety of overstorey tree species, for Yellow-bellied Gliders;

(e) be round or square and not linear in shape with the cluster of Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area located roughly at its centre, that is, as far as possible from its edges;

(f) where more than 50% of the habitat within 1 km of the location of the Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area has been modified, or is proposed to be modified to Hostile Habitat, include any remnant of connected mature forest within 1 km of the location of the Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area;

(g) comprise mature forest and include no Hostile Habitat, and no more than 15% as a continuous block of land logged between 50 and 100 years ago;

(h) include no more than 15% of mature forest impacted by recent intense wildfire;

(i) have boundaries adjoining secure reserved mature forest and/or mature forest along gullies; and

(j) have boundaries of mild slope, distant from streams, which are not a passageway or likely to act as conduits for weed invasion, erosion, pest animals, or pathogens.

2. Where the area of habitat that satisfies all of the criteria set out in paragraph 1 in respect of the Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area, is less than approximately 100 hectares, then Suitable Habitat means:

(a) all of the habitat which satisfies all of the criteria set out in paragraph 1  in respect of the Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area; and

(b) as much habitat as possible which satisfies the criteria set out in subparagraphs 1(b) and 1(c) guided by paragraph 1(a); and

(c) if the habitat which satisfies criteria 2(a) and 2(b) above is less than approximately 100 hectares, the remaining habitat comprising the relevant protection area must satisfy as many as possible of the criteria set out in paragraphs 1(d) to 1(j).

1. I do not accept VicForests’ submission that the Court is being asked to give an advisory opinion in the form of declarations.  There is a real legal controversy between EEG and VicForests about the correct application of the Table 13 prescriptions in relation to both greater gliders and yellow-bellied gliders.  The controversy was raised on the pleadings and was the subject of evidence adduced by both parties at trial.[315]  Declarations can be made to determine the controversy, which relates to a concrete situation.[316]

   [315]See [314]–[322] above.

   [316]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, [48] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

1. I propose to make declarations in the East Gippsland proceeding to the following effect, to reflect my conclusions in relation to Issues 12 and 13:[317]

   [317]See in particular [333], [340], [355]–[358] above.

(a)        For the purposes of both the management action for the greater glider and the management action for the yellow-bellied glider in the East Gippsland FMA in Table 13 of the Standards, a protection area of 100 hectares of suitable habitat should be designed having regard to the Suitable Habitat principles.

(b)       For the purposes of the management action for the greater glider in the East Gippsland FMA in Table 13 of the Standards, substantial populations in isolated habitat are at least 20 Greater Gliders located within 100 hectares of suitable habitat that is surrounded by at least 100 metres width of Hostile Habitat where any corridors of suitable habitat traversing the Hostile Habitat are less than 100 metres wide.

(c)        For the purposes of the management action for the yellow-bellied glider in the East Gippsland FMA in Table 13 of the Standards, substantial populations in isolated habitat is at least two family groups of at least three yellow-bellied gliders located within 100 hectares of suitable habitat that is surrounded by at least 100 metres width of Hostile Habitat where any corridors of suitable habitat traversing the Hostile Habitat are less than 100 metres wide.

1. The terms ‘Hostile Habitat’ and ‘Suitable Habitat principles’ will be defined in the order, so as to reflect my findings at [333] and [340] above.

1. The parties should take these proposed declarations as the basis for declarations to be included in the draft orders to be submitted in the East Gippsland proceeding.

Disposition

1. The parties should confer and attempt to agree on draft orders in each proceeding to give effect to this judgment, with injunctions and declarations to the effect proposed.  If agreement cannot be reached, the parties can file short submissions on the appropriate form of the final orders to be made.  I will also hear from the parties on the question of costs in each proceeding.