Gippsland Environment Group Inc v VicForests - [2022] VSC 296

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2022 01719

GIPPSLAND ENVIRONMENT GROUP INC	Plaintiff
v
VICFORESTS	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2022
DATE OF JUDGMENT:	3 June 2022
CASE MAY BE CITED AS:	Gippsland Environment Group Inc v VicForests
MEDIUM NEUTRAL CITATION:	[2022] VSC 296

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ENVIRONMENTAL LAW – Timber harvesting in State forests – Application for interlocutory injunction – Serious question to be tried – Precautionary principle – Balance of convenience – Interlocutory injunction granted, with exceptions – Sustainable Forests (Timber) Act 2004 (Vic), s 46 – Code of Practice for Timber Production 2014, cl 2.2.2.2.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K Weston-Scheuber	Oakwood Legal
For the Defendant	Mr P Solomon QC with Mr O Ciolek and Ms H Douglas	Johnson Winter & Slattery

HER HONOUR:

VicForests is a Victorian Government owned business that conducts timber harvesting operations in State forests in Victoria. In doing so, it must comply with the provisions of the Sustainable Forests (Timber) Act 2004 (Vic) and any relevant Code of Practice made under Pt 5 of the Conservation, Forests and Lands Act 1987 (Vic).[1] Currently, VicForests’ timber harvesting operations are governed by the Code of Practice for Timber Production 2014 (as amended November 2021) (Code), which incorporates the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2021 (2021 Standards).
[1]Sustainable Forests (Timber) Act 2004 (Vic), s 46(a).

Gippsland Environment Group Inc (GEG) is an incorporated association that claims to have a special interest in the preservation of the State forests of Gippsland, comprising the flora and fauna of those forests. On 13 May 2022, GEG commenced this proceeding, in which it seeks a declaration and permanent injunctions to enforce what GEG contends are VicForests’ obligations to identify and protect greater gliders and yellow-bellied gliders in State forests in the Gippsland Forest Management Areas (FMAs).

The issues in this proceeding are almost identical to those in two other proceedings in this Court: S ECI 2021 01527 Environment East Gippsland Inc v VicForests (East Gippsland proceeding) and S ECI 2021 04204 Kinglake Friends of the Forest Inc v VicForests (Kinglake proceeding), which concern the East Gippsland FMA and the Central Highlands FMAs respectively. Since December 2021, the East Gippsland proceeding and the Kinglake proceeding have been managed together. I heard the evidence in the trial of both proceedings in May, and will hear final submissions on 23 June 2022.

By summons filed 23 May 2022, GEG sought an interlocutory injunction restraining VicForests from conducting timber harvesting operations in any coupe in the Gippsland FMAs in which there has been a sighting of a greater glider in, or within 240 metres of, that coupe, known to VicForests. The interlocutory injunction sought was in very similar terms to the interlocutory injunctions that have been in place in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 296
Decision Date: 3 June 2022

CaseChat Overview and Summary

The Gippsland Environment Group Inc brought an application against VicForests in the Supreme Court of Victoria. The group sought an interlocutory injunction to prevent VicForests from carrying out timber harvesting operations in State forests, alleging that these operations were in breach of environmental protection laws. The legal dispute centred on the balance between the need for environmental protection and the economic benefits of timber harvesting. The court had to determine whether the precautionary principle, which favours environmental protection when there is uncertainty about environmental harm, could be applied to grant an interlocutory injunction. Additionally, the court assessed the balance of convenience to decide whether the potential harm to the environment outweighed the harm to VicForests if the injunction were granted.

The court considered the serious question of whether VicForests' operations complied with the Code of Practice for Timber Production 2014 and the Sustainable Forests (Timber) Act 2004 (Vic). It was necessary to examine the evidence regarding the potential environmental harm against the economic and social benefits of the timber operations. The precautionary principle was deemed relevant, given the potential for irreversible environmental damage. The court also assessed the balance of convenience, taking into account the potential harm to the environment versus the harm to VicForests if the operations were halted. After weighing these factors, the court concluded that a serious question was indeed being tried and that the precautionary principle warranted granting the injunction.

The Supreme Court granted the interlocutory injunction, with certain exceptions to allow VicForests to continue certain operations that posed minimal environmental risk. The court found that the balance of convenience favoured the applicant, as the potential environmental harm was significant and likely to be irreversible. The injunction required VicForests to cease certain timber harvesting activities, while permitting others that met strict environmental criteria. The court's decision balanced the need for environmental protection with the economic interests of VicForests, ensuring that the operations could continue in a manner that minimised environmental damage.

Orders