Environment East Gippsland Inc v VicForests (No 5)

In the case of Environment East Gippsland Inc v VicForests (No 5), the plaintiff, Environment East Gippsland Inc, sought permanent injunctions and declarations to prevent the defendant, VicForests, from carrying out timber harvesting activities in East Gippsland and Central Highlands forests without first surveying for the presence of greater gliders and yellow-bellied gliders. This case came before the court following an earlier decision in Environment East Gippsland Inc v VicForests (No 4) where the court found that VicForests must survey coupes for the presence of gliders as a matter of precaution under the precautionary principle. The current case concerns the form of the final orders that should be made to give effect to the earlier decision.

The central legal issues before the court were the precise wording of the permanent injunctions and declarations to be issued against VicForests. Specifically, the court had to decide whether the injunctions should be prescriptive in terms of the survey methods to be used or whether they should be more outcome-focused, allowing VicForests some flexibility in the methods employed. Additionally, the court needed to determine the exact scope and wording of the declarations to be made in relation to the conservation of the gliders.

The court determined that while the survey method proposed by the plaintiffs was generally effective, it was not always safe or practical to apply universally. The court opted for a more flexible approach, focusing on the outcome of the surveys rather than the specific methods used. The injunctions were to ensure that VicForests conducts surveys sufficient to locate the home ranges of gliders within proposed coupes, thereby excluding these areas from timber harvesting. The declarations reinforced the need for VicForests to adhere to the precautionary principle when surveying and managing forest areas for timber harvesting. The court's decision allowed VicForests some discretion in the survey methods employed, as long as the outcome of locating glider home ranges was achieved.

In light of the court's reasoning, the final orders included permanent injunctions requiring VicForests to survey for gliders in a manner that achieves the desired outcome, rather than prescribing a specific survey method. The declarations emphasized the necessity of applying the precautionary principle in the conservation of glider habitats. The court also ordered the discharge of the interlocutory injunctions, released VicForests from the undertakings given during the interlocutory stages, and directed VicForests to pay the plaintiffs' costs of the proceeding. These orders reflect the balance between protecting endangered species and allowing for sustainable timber harvesting practices.