Legal Research
Cases
MyEnvironment Inc v VicForests

MyEnvironment Inc v VicForests

Case [2013] VSCA 356 10 December 2013

Adverse Possession

Statutory Interpretation

Unconscionable Conduct

Environmental Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0067
MyEnvironment Inc	Appellant
v
ViCForests	Respondent

---

JUDGES:	WARREN CJ, TATE JA and GARDE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 June 2013
DATE OF JUDGMENT:	10 December 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 356
JUDGMENT APPEALED FROM:	MyEnvironment Inc v VicForests [2012] VSC 91 (Osborn JA)

---

ENVIRONMENTAL LAW – Proposed logging in three coupes near Toolangi – Appeal from a refusal to grant a permanent injunction to restrain logging – Whether small areas within the coupes comprise protected habitat for Leadbeater’s possum – Construction of zoning criteria in two regulatory instruments – Central Highlands Forest Management Plan – Flora and Fauna Guarantee Action Statement – Whether for zoning purposes hollow-bearing trees should be mature and senescing or of any age – Balance between competing interests – Zoning criteria not designed to capture all suitable habitat but only optimal habitat or that with presently existing potential – Appeal dismissed – Forests Act 1958, ss 3 and 22 – Conservation Forests and Lands Act 1987, ss 4, 6, 10, 35 and 39 – Sustainable Forests (Timber) Act 2004, ss 1, 5, 37, 39, 40 and 46 – Flora and Fauna Guarantee Act 1988, ss 1, 3, 4, 11 and 19.

STATUTORY INTERPRETATION – Construction where competing purposes – Kelly v The Queen (2004) 218 CLR 216 considered – Nicholls v The Queen (2005) 219 CLR 196, Carr v Western Australia (2007) 232 CLR 138 and Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 87 ALJR 1009 applied – VictimsCompensation Fund v Scott Brown & Ors [2002] NSWCA 155 (Spigelman CJ in dissent) considered.

WORDS – ‘Mature and senescing’.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J W K Burnside QC with Mr E M Nekvapil	Environment Defenders Office (Victoria) Ltd
For the Respondent	Mr I G Waller SC with Mr H L Redd	Baker & McKenzie

WARREN CJ:

I have had the considerable benefit of reading the draft judgment of Tate JA. I agree with her Honour’s reasons. I also add some additional observations on the statutory construction issue, considered in Tate JA’s reasons, that arises in response to the appellant’s submissions that the purpose of the relevant legislation is to protect the habitat of the Leadbeater’s possum, and that the Court should endeavour to construe the relevant provisions expansively with a view to furthering this legislative purpose.

The purposive approach to statutory interpretation, as embodied in s 35 of the Interpretation of Legislation Act 1984, provides that a construction that would promote the purpose or object underlying the Act or subordinate instrument shall be preferred to a construction that would not promote that purpose or object. Both the Leadbeater’s Possum Action Statement (‘LBP AS’) and the Central Highlands Forest Management Plan (‘the plan’),[1] being subordinate instruments, fall to be construed in accordance with this provision.
[1]These terms are defined in the reasons of Tate JA…

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.

Continue reading MyEnvironment Inc v VicForests

Details

AGLC: MyEnvironment Inc v VicForests [2013] VSCA 356
Case: [2013] VSCA 356
Decision Date: 10 December 2013

CaseChat Overview and Summary

MyEnvironment Inc sought to appeal a refusal to grant a permanent injunction to prevent logging in three coupes near Toolangi. The proposed logging activity was by VicForests. The Victorian Court of Appeal was required to decide whether small areas within the coupes constituted protected habitat for the endangered Leadbeater’s possum. This was based on the interpretation of zoning criteria in two regulatory instruments: the Central Highlands Forest Management Plan and the Flora and Fauna Guarantee Action Statement. The primary issue was whether, for zoning purposes, hollow-bearing trees should be mature and senescing or of any age. The case involved balancing the interests of conservation and sustainable timber production.

The Court of Appeal considered the purpose of the relevant legislation and regulatory instruments, including the Forests Act 1958, the Conservation Forests and Lands Act 1987, the Sustainable Forests (Timber) Act 2004 and the Flora and Fauna Guarantee Act 1988. The Court examined the wording of the instruments, particularly the phrase ‘mature and senescing’ in relation to hollow-bearing trees. The Court applied principles of statutory interpretation, including the competing purposes test, to determine the appropriate construction of the instruments. The Court concluded that the zoning criteria were not designed to capture all suitable habitat but only optimal habitat or that with presently existing potential.

The Court found that the regulatory instruments did not require all suitable habitat for the Leadbeater’s possum to be protected, but only optimal habitat or that with presently existing potential. The Court held that the phrase ‘mature and senescing’ was not ambiguous and did not require hollow-bearing trees of any age to be protected. The Court dismissed the appeal, affirming the decision of the lower court.

Orders