MyEnvironment Inc v VicForests

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 04452

MYENVIRONMENT INC	Plaintiff
v
VICFORESTS	Defendant

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JUDGE:	OSBORN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	6-10, 13-16, 20-21 February 2012
DATE OF JUDGMENT:	14 March 2012
CASE MAY BE CITED AS:	MyEnvironment Inc v VicForests
MEDIUM NEUTRAL CITATION:	[2012] VSC 91

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ENVIRONMENTAL LAW – Proposed logging at three coupes near Toolangi – Application for permanent injunction restraining logging – Whether proposed coupes contain Leadbeater’s Possum zone 1A habitat – Flora and Fauna Guarantee Act Action Statement – Central Highlands Forest Management Plan – Construction of relevant management prescription – Hollow-bearing tree means mature or senescing tree containing hollows – No evidence that proposed coupes contain sufficient density of hollow-bearing trees to constitute zone 1A – Obligation to comply with precautionary principle – No threat of serious or irreversible damage – Proposed adaptive management measures not proportionate to threat – Application dismissed – Sections 3, 4, and 22 Forests Act 1958; ss 4, 5, 6, 7, 10, and 31 Conservation Forests and Lands Act 1987; ss 1, 4, 5, 6, 13, 14, 15, 16, 17, 18, 19, 37, 38, 39, 40, 43, 44, and 45 Sustainable Forests (Timber) 2004; ss 1, 3, 4, 7, 8, 11, 17, 19, and 20 Flora and Fauna Guarantee Act 1988 - Environment East Gippsland Inc v VicForests [2010] VSC 335 - Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K L Walker with Mr E M Nekvapil	Bleyer Lawyers Pty Ltd
For the Defendant	Mr I G Waller SC with Mr H L Redd and Mr N Kaskani	Baker & McKenzie

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

History of the dispute....................................................................................................................... 7

The open offer of compromise..................................................................................................... 9

The course of the trial...................................................................................................................... 11

The statutory framework................................................................................................................ 13

Forests Act 1958........................................................................................................................... 13
Conservation, Forests and Lands Act 1987............................................................................. 14
Sustainable Forests (Timber) Act 2004..................................................................................... 15
The Code of Practice................................................................................................................... 20

The precautionary principle..................................................................................................... 24
Management procedures.......................................................................................................... 25

Flora and Fauna Guarantee Act 1988....................................................................................... 25

The Action Statement...................................................................................................................... 28

The Forest Management Plan for the Central Highlands........................................................ 64

The Precautionary Principle.......................................................................................................... 82

Was the initial logging of Gun Barrel unlawful?.................................................................... 107

Conclusion....................................................................................................................................... 107

HIS HONOUR:

Introduction

Leadbeater’s Possum (‘LBP’) is a small non-gliding arboreal marsupial. It has grey fur with a distinctive black dorsal strip and a long club-shaped tail. For much of the 20^th century, it was known only from five specimens collected prior to 1910. By 1960, it was believed to be extinct. In 1961, it was rediscovered near Marysville in the central highlands of Victoria. Subsequent exploratory surveys in the montane ash forests of Victoria[1] found the possum in patches of suitable habitat, but its distribution remains restricted.
[1]Forests of Mountain Ash (Eucalyptus regnans), Alpine Ash (Eucalyptus delegatensis) and Shining Gum (Eucalyptus nitens).

LBP is a colonial species and can live in groups of two to 12 individuals. The typical home range of LBP is 1.5 to 3 hectares, but may be larger depending on the configuration of the habitat.

LBP has a diet comprised of sap from acacia trees, honeydew produced by sap-sucking insects, and invertebrates such as large flightless tree crickets that inhabit bark streamers on large eucalypt trees.

Since its rediscovery, the survival of the possum has been understood to be directly linked to the availability of suitable habitat. The critical factors affecting the presence of such habitat have also been understood to be the effects of the history of wildfire and of timber harvesting upon the forest.

LBP is listed as endangered under the Flora and Fauna Guarantee Act 1988 (‘FFG Act’) and under sch 1 of the Commonwealth Endangered Species Protection Act 1992.[2]
[2]See s 178, Environment Protection and Biodiversity Conservation Act 1999 (‘EPBC Act’).

LBP occupies wet montane ash forests characterised by the presence of a combination of large living and dead hollow bearing trees (‘HBT’) and a dense understorey of acacia trees. The species spends in the order of 75 per cent of its time inside HBT and individuals of a colony swap regularly between several different trees within a given area. The acacia understorey is an important component of habitat, both because it is a key source of food and because it provides a dense interconnected substrate which allows the LBP to move rapidly through the forest.

The Action Statement relating to the LBP (‘LBP AS’) made under the FFG Act states with respect to LBP habitat:

The most important components of Leadbeater's Possum habitat are nest-tree abundance, vegetation structure and food availability. Large old hollow trees (either dead or alive) for nesting and shelter are essential for the survival of Leadbeater's Possum. Maximum population densities occur in regrowth forests (15-50 years) with more than six potential nest-trees per 3 ha and a biomass of Acacia spp. between 20-50% of stand basal area (Smith and Lindenmayer 1992). The term 'potential nest-tree' refers to existing hollow-bearing trees that have the potential to be utilised by the species. Leadbeater's Possum prefer short, fat trees with numerous holes and a large quantity of dense surrounding vegetation (Lindenmayer et al., 1991).[3]

[3]Action Statement #62 made under the Flora and Fauna Guarantee Act 1988, published by the Department of Sustainability and Environment. First published in 1995, republished in 2003, 2.

In turn, both the LBP AS and the applicable Forest Management Plan[4] (‘FMP’) seek to conserve areas of potentially optimum LBP habitat. Such areas are identified by criteria relating to vegetation characteristics, rather than by detection of the species.
[4]Forest Management Plan for the Central Highlands, published by the Department of Sustainability and Environment, May 1998.

A core dispute between the parties in the present case is whether the LBP AS and FMP relevantly provide for exclusion zones to be created by reference to specified densities of ‘old’ HBT or all HBT.

The 2009 Black Saturday Bushfires substantially destroyed much of the ash forest which comprises habitat and potential habitat for the LBP in the central highlands.

They also substantially destroyed significant areas of ash forest which were planned to become available for timber harvesting.

The fires thus, in effect, increased the residual value of the remaining ash forest in the central highlands, both as potential LBP habitat and as a timber resource. They provide a background to understanding the positions of the parties in this case and constitute a supervening circumstance of importance which has occurred since the management prescriptions affecting the forest were formulated.

This case relates to three coupes (‘the Toolangi coupes’) proposed for logging pursuant to a Timber Release Plan (‘TRP’). The three coupes are designated by number on the attached plan. They are Freddo 297-826-0002, Gun Barrel 297-526-0001, and South Col 298-509-0001.

The plan also demonstrates that the three coupes abut special protection zones (‘SPZ’) - coloured pink - within which timber harvesting is prohibited. These reserves intrude into both Freddo and Gun Barrel. It is common ground that VicForests will not harvest those portions of the coupes comprising SPZ.

MyEnvironment seeks to restrain the resumption of logging which commenced last year in Gun Barrel and the commencement of logging in Freddo and South Col. It also seeks declaratory relief as to the unlawfulness of logging which has already occurred in part of Gun Barrel.

MyEnvironment’s case is founded on two propositions, which in themselves are broken into alternatives:

(a) the logging of the Toolangi coupes is unlawful because they comprise, or contain, zone 1A forest as defined in the LBP AS or the relevant FMP; or

(b) the logging of the Toolangi coupes is unlawful because it would breach the precautionary principle, having regard to underlying considerations of ecologically sustainable development and the need to complete a series of alternative adaptive procedures as a precondition to any further logging.

VicForests contends in summary that:

(a) the LBP AS does not impose an obligation upon it save through the mechanism of the FMP;

(b) Gun Barrel does not contain zone 1A forest either as defined in the LBP AS or the FMP;

(c) no final forest coupe harvesting plans have been developed for Freddo and South Col and it does not intend to log any parts of those coupes which constitute zone 1A;

(d) the precautionary principle does not give rise to an enforceable legal obligation with respect to timber harvesting in the Toolangi coupes;

(e) there is no real threat of serious or irreversible danger to the environment if the Toolangi coupes are logged;

(f) if the precautionary principle is engaged, the proposed timber harvesting will be undertaken in accordance with the proper application of such principle; and

(g) the adaptive management measures put forward by MyEnvironment are not proportionate to any threat of danger to the environment.

In the first instance, the case thus raises questions of construction of the LBP AS and the FMP. The parties are in fundamental disagreement as to whether the criteria for zone 1A forest relevantly require patches of forest of more than 3 hectares containing at least 12 montane ash HBT per hectare of any age,[5] or whether such HBT must be mature and senescing trees.
[5]The standard is variously expressed as ‘at least 12’ in the LBP AS and ‘>12’ in the FMP.

There are further subsidiary disputes as to the construction of the zone 1A controls, but having regard to the evidence in this case, the further logging of Gun Barrel will not breach the relevant control if the criteria for that control require a specified number of mature or senescing HBT. Conversely, it will do so if the control applies to all montane ash HBT.

For the reasons I set out below, I have come to the view that:

(a) the LBP AS describes Zone 1A habitat by applying a density factor to mature HBT;

(b) the LBP AS contemplates that the exclusion zone scheme is to be implemented through the FMP, and it is the FMP which crystallises the zone requirements;

(c) the FMP applies the relevant density factor to mature or senescing trees.

The first issue relating to the construction of the Zone 1A provisions of the LBP AS is the most difficult. But, in the ultimate, it is the second and third conclusions which are dispositive of the zoning issue.

In turn, MyEnvironment has not established that the proposed variable retention harvesting of Gun Barrel will breach the zone 1A provisions of the FMP. VicForests’ intentions with respect to Freddo and South Col have not yet crystallised in proposals which can be said to breach the zone 1A prescription.

I have also come to the view that the case based on the precautionary principle must fail. MyEnvironment has not established a threat of serious or irreversible damage to the environment will result from the proposed variable retention harvesting of Gun Barrel or the as yet unresolved proposals to harvest timber in Freddo and South Col.

Further, the adaptive management measures for which MyEnvironment contend are not directly responsive to, or proportionate to, any threat which may be hypothesised to result from the variable retention harvesting of Gun Barrel.

I will deal in turn with:

· The history of the dispute.

· The course of the trial.

· The statutory framework.

· The action statement.

· The forest management plan.

· The precautionary principle.

History of the dispute

On 4 March 2011, VicForests completed a forest coupe plan for Gun Barrel. In the week commencing 3 April 2011, VicForests constructed a road and landing[6] in Gun Barrel. On or around 4 July 2011, VicForests commenced timber harvesting operations in Gun Barrel.
[6]The construction of a road and landing is a necessary preliminary to the commencement of harvesting.

On 14 July 2011, VicForests received an email from Mr Bernard Mace on behalf of MyEnvironment. Mr Mace provided VicForests with survey data which purported to show pre-1900 trees and LBP habitat within Gun Barrel.

Following further correspondence with MyEnvironment and the DSE, on 19 July 2011 VicForests resolved to exclude a 3 hectare zone on the western edge of Gun Barrel from harvesting. The 3 hectare exclusion zone is depicted on the map below by the cross-hatched area labelled ‘area retained by VicForests for habitat’:[7]

[7]Exhibit LRS-72 to the affidavit of Lachlan Spencer sworn 16 December 2011.

In early July 2011, MyEnvironment retained Mr Jacques Cop, an ecologist, to conduct surveys for LBP and LBP habitat in Gun Barrel coupe.

The report of Mr Cop was provided to VicForests by email on 19 August 2011. Mr Cop concluded that his study areas within Gun Barrel contained sufficient ‘large dead and living hollowing bearing trees for these areas to be classified as Leadbeater’s Possum Habitat Zone 1A’.[8]
[8]Exhibit SSR-9 to the affidavit of Sarah Rees sworn 25 August 2011.

On 22 August 2011, MyEnvironment caused a letter to be sent to VicForests in which it sought an undertaking that VicForests would immediately cease logging Gun Barrel and would refrain from logging the other Toolangi coupes.

No such undertaking was offered then or in the correspondence that followed. On 24 August 2011, MyEnvironment initiated proceedings in this Court and, on 25 August 2011, obtained interim injunctive relief restraining VicForests from conducting timber harvesting operations in the Toolangi coupes, which was subsequently extended by consent pending trial.

The open offer of compromise

On 27 January 2012, the solicitors for VicForests wrote to MyEnvironment in order to make an open offer to resolve the litigation (‘the open offer letter’).

The open offer letter provides in respect of Gun Barrel:

1.Insofar as Gun Barrel coupe is concerned, VicForests will conduct the balance of its timber harvesting operations (within the meaning of s 3 of the Sustainable Forests (Timber) Act 2004 (Vic)) using variable retention harvesting in accordance with the map at Attachment 1 (the Gun Barrel Variable Retention Plan)
2.Those parts of the Gun Barrel Variable Retention Plan that are coloured yellow are islands of retained habitat; those parts coloured pink form part of a Special Protection Zone. Each of these areas will be protected from timber harvesting.
3.Timber harvesting will therefore occur within the areas shaded green, subject to existing prescriptions contained within the Central Highlands Forest Management Plan (the CHFMP), such as the retention of pre-1900 trees. We note that the central area shaded yellow has a snig track passing through it which was created in accordance with the CHFMP.

The Gun Barrel Variable Retention Plan is shown below:

The 3 hectare exclusion zone referred to above is represented by the yellow retained habitat region on the western edge of the coupe.

During the course of the trial, VicForests undertook that it would not log Gun Barrel other than in accordance with the offer.

With regards to South Col and Freddo, the open offer letter goes on to propose that the areas identified as containing zone 1A habitat by Prof. Lindenmayer in his report will be excluded from harvesting. Following surveys by VicForests over the unsurveyed portions of the two coupes, timber harvesting is proposed to occur in those portions found not to contain zone 1A or zone 1B habitat.

The course of the trial

Before turning to a more detailed consideration of the issues in the case, it is convenient to summarise the course of the trial and give a brief overview of the evidence as a whole.

The trial was conducted by reference to affidavit material, which was amplified to some extent in evidence-in-chief and extensively explored in cross-examination. Oral evidence was called in the course of a two and a half week trial.

Pursuant to an order under s 53 of the Evidence Act 2008, a view was conducted on 8 February 2012. During the view, parts of Freddo, South Col and Gun Barrel coupes were inspected. Gun Barrel coupe abuts the eastern side of Freddo coupe.

Two further coupes were also viewed. One had been harvested using a variable retention system. Another had been clear-felled and subjected to a regeneration burn.

Commentary on the view was provided by Prof. David Lindenmayer (Research Scientist and ecologist) on behalf of MyEnvironment and Mr Lachlan Spencer (Forester) on behalf of VicForests. Following the view, a set of agreed photographs and an agreed note of observations and commentary were tendered.

Pursuant to s 54 of the Evidence Act 2008, and subject to the requirements of procedural fairness, the Court is able to draw any reasonable inference from what it saw and heard during the view, but in the present case the view functioned primarily as an aid to the understanding of the evidence given by the witnesses.

The witnesses called by MyEnvironment at trial were:

(a) Prof. David Lindenmayer (9 and 10 February 2012), Research Scientist, who was called to give evidence in relation to the methodology followed by his team when surveying for LBP habitat and the appropriate definition of the habitat requirements for LBP AS, including the appropriate definition of LBP habitat under the LBP AS and the FMP.

(b) Mr John Stein (13 February 2012), Research Officer, who was called to give evidence in relation to HBT density in the Toolangi coupes, comprising a spatial analysis of HBT locations based on data provided from the surveys conducted by Mr Blair and Mr McBurney.

(c) Dr Judith Ajani (16 February 2012), Economist, who was called to respond to VicForests’ evidence in relation to potential social and economic impacts of a restraint of forestry operations in the Toolangi coupes.

In addition, MyEnvironment tendered affidavits from the following witnesses, who were not required to give oral evidence:

(a) Ms Sarah Sian Rees, member of the committee of MyEnvironment, who provided two affidavits in relation to the MyEnvironment’s standing to bring the proceeding and the history of the interim injunction application.

(b) Mr Lachlan McBurney, Research Officer, who conducted surveys of the Toolangi coupes to identify potential LBP habitat.

(c) Mr David Blair, Research Officer, who conducted surveys of the Toolangi coupes to identify potential LBP habitat.

VicForests called the following witnesses:

(a) Mr Lachlan Raymond Spencer (13 and 14 February 2012), Director, Planning, VicForests, who was called to give evidence regarding VicForests’ intentions with regards to, and the state of planning for forestry operations in, the Toolangi coupes. Mr Spencer also gave evidence about the appropriate definition of LBP habitat pursuant to the AS and FMP.

(b) Mr Michael Ryan (14 and 15 February 2012), Forest Scientist, VicForests, who was called to give evidence in relation to the methodology followed by VicForests when conducting habitat surveys and as to the characteristics of the trees asserted by MyEnvironment to be HBT within Gun Barrel.

(c) Dr Jacqueline Schirmer (16 February 2012), Researcher, who was called to give evidence in relation to potential social and economic impacts of a restraint of forestry operations in the Toolangi coupes.

In addition, the defendant tendered an affidavit from the following witness, who was not required to give oral evidence:

(a) Mr Mark Neyland, as to the suitability of the Toolangi coupes for variable retention harvesting.

The statutory framework
Forests Act 1958

The Toolangi coupes are within an area of forest reserved under s 42(1) of the Forests Act 1958 (‘Forests Act’) and hence are State forests for the purposes of the Forests Act.

Section 4 of the Forests Act vests property in ‘forest produce’[9] in a State forest in the Crown and provides that property in forest produce only passes to another person in accordance with the Act.
[9]Forest produce is defined in s 3 to include ‘all parts of trees or plants, including any parts below the ground’.

The Act empowers the Secretary[10] to protect, manage and control State forests. Section 22 requires the preparation of working plans for State forests:
[10]Section 3 of the Forests Act provides that ‘Secretary’ means the body corporate established by Part 2 of the Conservation, Forests and Lands Act 1987.

(1)The Secretary—
(a) shall prepare and cause to be put into operation working plans with respect to the control, maintenance, improvement, protection from destruction or damage by fire or otherwise, and removal of forest produce in and from each State forest and any part thereof;
(b) may from time to time revise any such working plan and shall cause the revised working plan to be put into operation; and
(c) forthwith after the preparation or revision of any such working plan shall submit the same to the Minister.

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

A working plan is defined as a detailed scheme for the control and regulation of the working of a forest or any part thereof and for ensuring the maintenance of a sustained yield of forest produce from such forest.

The relevant working plan for the Toolangi coupes is the Central Highlands FMP.

Conservation, Forests and Lands Act 1987

The object of the Conservation, Forests and Lands Act 1987 (‘CFL Act’) is stated in s 4:

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

The CFL Act establishes a body corporate under the name ‘Secretary to the Department of Sustainability and Environment’ (‘the Secretary’). The Secretary is subject to the direction and control of the Minister[11] and has the functions and powers as conferred by a relevant law or under any Act.[12] A relevant law includes the FFG Act, the Forests Act, and the SFT Act. [13]
[11]CFL Act s 7.
[12]CFL Act s 10.
[13]CFL Act s 4 and sch 1.

Relevantly, pt 5 of the CFL Act enables 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.[14]
[14]CFL Act s 31.

Codes of practice are subject to legislative oversight in that they must be tabled in each House of Parliament for 14 sitting days and are subject to disallowance.[15]
[15]CFL Act s 35.

Compliance with a code of practice is not required unless the code of practice is incorporated in, or adopted by, either a relevant law or a condition specified in an authority given under a relevant law.[16]
[16]CFL Act s 39.

The Code of Practice for Timber Production (’the Code’) is a code of practice promulgated under pt 5 of the CFL Act.

Sustainable Forests (Timber) Act 2004

The first main purpose of the Sustainable Forests (Timber) Act 2004 (‘SFT Act’) is to provide a framework for sustainable forest management and sustainable timber harvesting in State forests.[17]
[17]SFT Act s 1.

Section 4 provides that the SFT Act binds the Crown.

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

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

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

Section 5(4)(a) makes clear that the principles of ecologically sustainable development require decision making which integrates and weighs up potentially conflicting considerations.

Section 5(4)(b) is a statement of the precautionary principle, which is considered in more detail below by reference to the Code.

Part 3 of the SFT Act provides that the Minister may make allocation orders which allocate timber in State forests to VicForests for harvesting and selling.[18] VicForests is required to carry out its functions in accordance with an allocation order.[19] Allocation orders may be amended.[20]
[18]SFT Act s 13.
[19]SFT Act s 16.
[20]SFT Act s 17.

The Minister allocated the timber in the Toolangi coupes to VicForests under the Allocation to VicForests Order 2004 (‘the Allocation Order’). On 30 April 2010 and on 8 September 2010, the Allocation Order was amended. One effect of the amendments was to remove conditions which previously required VicForests to comply with the requirements of standards and conditions contained in other specified subordinate instruments.[21] As a result, MyEnvironment does not place any reliance upon the Allocation Order as a source of obligation upon VicForests.
[21]Compare Environment East Gippsland Inc v VicForests [2010] VSC 335 (‘Brown Mountain’) at [127] following.

Part 5 of the SFT Act deals with TRPs which release for harvesting coupes of timber which have been specified as available for timber harvesting under the Allocation Order.

The SFT Act states that all timber resources[22] in State forest are the property of the Crown and that property in timber resources only passes from the Crown to VicForests in accordance with the provisions of the SFT Act.[23]
[22]Per SFT Act s 3, meaning ‘timber from the trees or parts of trees which are specified as available for timber harvesting in an allocation order’.
[23]SFT Act s 36(1).

Under s 37(1) of the SFT Act, VicForests must prepare a TRP in respect of an area to which an allocation order applies for the purpose of, among other things, harvesting and selling, or harvesting or selling, timber resources.

Sections 39 and 40 provide for the approval of TRPs by the Secretary. Section 40 provides:

(1)The Secretary may approve a timber release plan if the Secretary is satisfied that the plan is not inconsistent with—
(a)the allocation order to which it relates; and
(b)any Code of Practice relating to timber harvesting.

(2)In approving a timber release plan under subsection (1), the Secretary may approve the plan—
(a) wholly or as to part of the plan; or
(b) subject to any conditions which the Secretary considers appropriate.

(3)The Secretary must not unreasonably withhold approval of a timber release plan under this section.

Upon approval of the TRP and the gazettal of a notice of such approval, property in the timber resources to which the approved timber release plan applies is vested in VicForests.[24]
[24]SFT Act s 42(1).

Section 44 requires VicForests to operate in accordance with any approved TRP:

In carrying out its functions and powers under this Act in relation to vested timber resources or in relation to an area to which an allocation order applies, VicForests must do so in accordance with any approved timber release plan.

Section 45 makes it an offence to undertake timber harvesting operations in a State forest unless those operations are ‘authorised operations’. Authorised operations include those undertaken by or on behalf of VicForests in accordance with an approved TRP.

The TRP applicable to the Toolangi coupes is the Timber Release Plan 2011-2016, which was approved on 15 June 2011 (‘the 2011 TRP’).[25]
[25]Notice of approval for which was published in the Victorian Government Gazette No G 25 on 23 June 2011.

The TRP provides relevantly that:

VicForests is permitted to harvest and sell, or harvest or sell timber resources in accordance with the Allocation to VicForests Order 2004. In addition, VicForests is permitted to undertake associated management activities on coupes described in the TRP 2011-2016, including:
a)        preparation of sites for timber harvesting
b)        construction of access roads to coupes
c)        site rehabilitation
d)        forest regeneration.
VicForests is permitted to undertake these activities until timber harvesting operations are completed, and the coupes are rehabilitated and regenerated.

Under s 40(2)(b) of the SFT Act, the Secretary specified conditions with which VicForests must comply when undertaking the activities authorised under the TRP. The relevant section of the TRP provides:

In accordance with section 40(2)(b) of the Sustainable Forests (Timber) Act 2004, in undertaking authorised activities VicForests must:
(a)        comply with all relevant laws
(b)comply with the conditions and standards of the following documents, as amended from time to time:
·     Code of Practice for Timber Production 2007. Department of Sustainability and Environment, 2007.
·     Code of Practice for Fire Management on Public Land, Revision No. 1. Department of Sustainability and Environment, 2006.
·     Management Procedures for timber harvesting, roading and regeneration in Victoria’s State forests 2009. Department of Sustainability and Environment, 2009.
·     Fire Salvage Harvesting Prescriptions, October 2009. Department of Sustainability and Environment, 2009.
(c)be consistent with Forest Management Plans published by the Department of Sustainability and Environment or its predecessors, relevant to the Forest Management Areas to which the approved Timber Release Plan applies
(d)be consistent with the Allocation to VicForests Order 2004 which shows the gross extent and location of the forests stands to which VicForests has access under the Order.

For present purposes, the most significant of these obligations are the requirements to:

(a) comply with the conditions and standards of the Code;

(b) comply with management procedures; and

(c) be consistent with the relevant FMP.

The Code of Practice

Section 46(a) of the SFT Act states that VicForests must comply with any relevant code of practice relating to timber harvesting. This incorporates the Code as promulgated under pt 5 of the CFL Act.

The TRP also imposes conditions requiring VicForests to comply with the Code. In turn, those conditions have themselves been formulated in the context of s 40 of the SFT Act, which requires that a TRP must not be inconsistent with the Code.

The Code was released by the Victorian Government Department of Sustainability and Environment in 2007. It deals with a range of matters relevant to timber growing and harvesting operations.

The purpose of the Code is as follows:

The purpose of this Code of Practice is to provide direction and guidance to forest managers and operators to deliver sound environmental performance when undertaking commercial timber growing and harvesting operations in such 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 timber production forests;
·provides for the ecologically sustainable management of native forests proposed for continuous timber production;
·enhances public confidence in the management of Victoria’s forests and plantations for timber production.[26]

[26]Department of Sustainability and Environment, Code of Practice for Timber Production 2007, VGDSE Melbourne, 5.

In turn, the Code includes a terminology section which uses a hierarchy of concepts, including:

A Code Principle is a broad outcome that expresses the intent of the Code for each aspect of sustainable management.
An Operational Goal states the desired outcome or goal for each of the specific areas of timber production operations, to meet the Code principles.
Mandatory Actions are actions to be conducted in order to achieve each operational goal. Forest managers and operators must undertake all relevant mandatory actions to meet the objectives of the Code. Mandatory actions are focussed on practices or activities. Failure to undertake a relevant Mandatory Action would result in non-compliance with this Code.[27]

[27]Ibid, 7.

The Code further articulates the concept of Guidance and Management Procedures:

Guidance provides means for achieving operational goals or mandatory actions, including reference to documents that may assist forest managers. Forest managers and operators are not obliged to conduct any of the actions covered under Guidance. This allows for innovation and advances in technology to provide continual improvement in addressing requirements of the Code. Failure to undertake any Guidance action does not in itself constitute non-compliance with the Code, however it should be noted that Guidance generally supports or expands upon Mandatory Actions.
DSE has prepared Management Procedures for application on public land, providing practical, detailed operational instructions for specific forest types across Victoria. These Management Procedures are consistent with the Operational Goals and Mandatory Actions of this Code and must be complied with for operations on public land. The Management Procedures are publicly available and are reviewed annually. They incorporate the outcomes of new research or findings of Code audits.[28]

[28]Ibid, 7.

The Code also states a series of substantive principles at cl 1.1:

Forest practices for timber production on all native forest and plantations in Victoria are guided by the Code Principles described in Table 1. The Code Principles express the broad outcomes of the intent of the Code for each aspect of sustainable forest management.
The seven 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. Reporting mechanisms such as Victoria’s State of the Forests Report use the same principles, and demonstrate Victoria’s commitment to being an international leader in sustainable forest management.
The seven 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 production capacity of forests managed for timber production 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.Aboriginal and non-Aboriginal cultural heritage values within forests are protected and respected.
6.A safe working environment is provided for all forest workers.
7.Forest management planning is conducted in a way that meets all legal obligations and operational requirements.

Timber growing and harvesting 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 water catchments and streams, biodiversity, forested landscapes and significant archaeological, historic and other cultural heritage sites are avoided or minimised.[29]

[29]Ibid, 8.

It goes on to provide for forest planning through FMPs (cl 2.1.1), TRPs (cl 2.1.2), and forest coupe plans (cl 2.1.3).

Part 2.2 of the Code relates to environmental values in public forests. It commences:

Timber production 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 operation can minimise these impacts. This section includes requirements that must be observed during planning, tending, roading and harvesting of public forests.[30]

[30]Ibid, 18.

Clause 2.2.2 of the Code relevantly provides as follows:

2.2.2 Conservation of Biodiversity
Operational Goal
Planning, harvesting and silvicultural operations in native forests specifically address the conservation of biodiversity, in accordance with relevant legislation and regulations, and considering relevant scientific knowledge.
Mandatory Actions
Where fire is used in timber production operations, all practicable measures must be taken to protect all areas excluded from harvesting from the impacts of unplanned fire.
Forest management planning and all forestry operations must comply with measures specified in relevant Flora and Fauna Guarantee Action Statements and Flora and Fauna Guarantee Orders.
…
To facilitate the protection of biodiversity values, the following matters must be addressed when developing and reviewing plans and must be adhered to during operations:
•application of the precautionary principle to the conservation of biodiversity values, consistent with monitoring and research to improve understanding of the effects of forest management on forest ecology and conservation values;
•consideration of the advice of relevant experts and relevant research in conservation biology and flora and fauna management at all stages of planning and operations;
•use of wildlife corridors, comprising appropriate widths of retained forest, to facilitate animal movement between patches of forest of varying ages and stages of development, and contributing to a linked system of reserves;
•providing appropriate undisturbed buffer areas around significant habitats;
•maintaining forest health and ecosystem resilience by managing pest plants, pest animals and pathogens; and
•modifying coupe size and dispersal in the landscape, and rotation periods, as appropriate.

At the coupe planning and harvesting level, the retention of habitat trees or patches and long-lived understorey elements in appropriate numbers and configurations, and provision for the continuity and replacement of old hollow-bearing trees within the harvestable area, must be allowed for.
…
Guidance
The objective of habitat retention measures is to facilitate the continued occupation or recolonisation by all species that are likely to have occurred in the area prior to timber harvesting through protection of the ecosystem that supports them. Thus, no part of the harvested area will become permanently unsuitable for any species likely to have been resident or a regular visitor to the area before it was harvested.
Opportunities to improve the protection of threatened species or habitat values may include reserving further strategic areas from harvesting, or modifying harvesting and silvicultural techniques to achieve specific conservation objectives.
Where vegetation is retained, consideration should be given to the protection of retained vegetation during harvesting and subsequent management, and the effect of retained vegetation on the growth of future crop trees.
Streamside buffers may both protect water quality and act as a wildlife corridor. However, the need for corridors along or across other topographic features will arise and should be considered in relation to the forest type and fauna present.
When planning and undertaking regeneration burning operations, minimising slash near any retained vegetation (eg. buffer strips, habitat trees or patches or shelterwood one trees) will assist with its survival.[31]

[31]Ibid, 21-22. (emphasis added)

The language of cl 2.2.2 contemplates that mandatory actions will be implemented in circumstances where they are required for the conservation of biodiversity. Those actions may be specified in ASs, or they may constitute the application of relevant principles to decision-making, the consideration of relevant advice in the course of decision-making, the appropriate reduction of areas that would otherwise be harvested, or allowance for habitat preservation within coupes.

Most relevantly, for present purposes, the mandatory actions include compliance with measures specified in a relevant AS. MyEnvironment seeks more than provision for the continuity and replacement of old HBT within the proposed harvesting areas. It seeks, as a minimum, the retention of habitat patches in accordance with its construction of the measures specified in the LBP AS.

The precautionary principle

Clause 2.2.2 of the Code also requires application of the precautionary principle. The glossary to the Code defines the precautionary principle as follows:

Precautionary principle – when contemplating decisions that will affect the environment, the precautionary principle requires careful evaluation of management options to wherever practical avoid serious or irreversible damage to the environment; and to properly assess the risk-weighted consequences of various options. When dealing with 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.[32]

[32]Ibid, 78.

As I stated in Brown Mountain, the provisions make it clear that VicForests is required to apply the precautionary principle having regard to the results of observations, ongoing monitoring and research as they come to light during operations.[33] The obligation in respect of the precautionary principle is coupled with a requirement to consider the advice of relevant experts and relevant research in conservation, biology and flora and fauna management at all stages of planning and operations. It is also coupled with the requirement to modify coupe size and dispersal in the landscape, as appropriate.
[33]Brown Mountain at [178]-[180].

If it fails in its contentions that VicForests is bound by management prescriptions contained in the LBP AS and/or the FMP to preserve habitat within the Toolangi coupes, MyEnvironment relies on the obligation of VicForests to act in accordance with the precautionary principle.

Management procedures

As stated in the Code, the DSE has prepared and published Management Procedures, which provide practical, detailed operational instructions. The introduction to the 2009 Management Procedures states that they apply to all timber harvesting, roading and regeneration in Victoria’s State forests.

Clause 1.4.5(a) of the Management Procedures states that habitat trees must be retained in accordance with sch 2 of the Management Procedures. Schedule 2 states relevantly that in the Central Highlands Forest Management Area, all ash eucalypts originating before 1900 are habitat trees.

The comment in sch 2 relating to the specification of Habitat Tree Prescriptions in the Central Highlands notes: ‘Current prescription agreed in the Central Highlands FMP should be applied’. This reinforces the obligation under the TRP to act consistently with the FMP.

Clause 1.4.9(a) states that prescriptions for threatened species management are those stated in the most recent approved aS or FMP.

Flora and Fauna Guarantee Act 1988

Pursuant to s 1, the purposes of the FFG Act are as follows:

The purpose of this Act is to establish a legal and administrative structure to enable and promote the conservation of Victoria's native flora and fauna and to provide for a choice of procedures which can be used for the conservation, management or control of flora and fauna and the management of potentially threatening processes.

Section 4 sets out flora and fauna conservation management objectives and states that a public authority must be administered so as to have regard to those objectives (sub-s (2)). It is admitted that VicForests is a ‘public authority’ as defined by s 3 of the FFG Act.

The objectives stated by s 4(1) are as follows:

(a)to guarantee that all taxa of Victoria's flora and fauna other than the taxa listed in the Excluded List can survive, flourish and retain their potential for evolutionary development in the wild; and
(b)to conserve Victoria's communities of flora and fauna; and
(c)to manage potentially threatening processes; and
(d)to ensure that any use of flora or fauna by humans is sustainable; and
(e)to ensure that the genetic diversity of flora and fauna is maintained; and
(f)to provide programs—
(i)of community education in the conservation of flora and fauna; and
(ii)to encourage co-operative management of flora and fauna through, amongst other things, the entering into of land management co-operative agreements under the Conservation, Forests and Lands Act 1987; and
(iii)of assisting and giving incentives to people, including landholders, to enable flora and fauna to be conserved; and

(g)to encourage the conserving of flora and fauna through co-operative community endeavours.

MyEnvironment places particular emphasis on the objectives set out at s 4(a)–(d).

Part 3 of the FFG Act provides for the listing of taxa or communities of flora or fauna which are threatened and for the listing of potentially threatening processes. Section 10 provides for the gazettal of a list of any taxon or community which is threatened, together with potentially threatening processes. Section 11 governs eligibility for listing and relevantly provides:

(1)A taxon or community of flora or fauna is eligible to be listed if it is in a demonstrable state of decline which is likely to result in extinction or if it is significantly prone to future threats which are likely to result in extinction.
…
(3)A potentially threatening process is eligible for listing if, in the absence of appropriate management, it poses or has the potential to pose a significant threat to the survival or evolutionary development of a range of flora or fauna.

The FFG Act provides for a process of preliminary and final recommendations by an expert Scientific Advisory Committee before decisions by the Minister as to listing. Consultation is also required with the Conservation Advisory Committee established under the FFG Act and the Victorian Catchment Management Council.[34]
[34]FFG Act ss 14-16.

Part 4 of the FFG Act provides for management processes. Pursuant to Division 1, the Secretary must prepare a Flora and Fauna Guarantee Strategy.[35] Section 17(2) provides that the strategy must include, inter alia, proposals for guaranteeing the survival, abundance and evolutionary development of all taxa and communities of flora and fauna (subject to sub-s (3)), ensuring the proper management of potentially threatening processes and improving the ability of relevant people to meet the s 4 objectives. Section 17(3) provides that the strategy must have regard to the need to achieve the flora and fauna conservation and management objectives with the minimum adverse social and economic impacts.
[35]FFG Act s 17.

Division 2 of pt 4 provides for the preparation of ASs and the determination of critical habitats. Sections 19(1) and (2) provide as follows:

(1)The Secretary must prepare an action statement for any listed taxon or community of flora or fauna or potentially threatening process as soon as possible after that taxon, community or process is listed.
(2)The action statement must set out what has been done to conserve and manage that taxon or community or process and what is intended to be done and may include information on what needs to be done.

In the present case, the Leadbeater’s Possum is listed as a threatened taxon in sch 2 of the FFG Act and the LBP AS has been promulgated.[36]
[36]First published 1995, republished 2003.

An AS has also been promulgated with respect to the loss of HBT as a listed potentially threatening process.

The requirements of the relevant ASs are picked up by the Code as ‘mandatory actions’. They do not simply inform the decision-making of VicForests as a public authority pursuant to s 4 of the FFG Act.

The requirements of specific ASs are also referred to in the FMP guidelines relating to specific species.

The Action Statement

Both the LBP AS and the FMP are subordinate instruments falling to be construed in accordance with s 35 of the Interpretation of Legislation Act 1983. A construction that would promote the purpose or object underlying the subordinate instrument is to be preferred to a construction that would not promote that purpose.

As MyEnvironment submits, the Court must construe the instruments’ text, context and purpose.

In CIC Insurance Ltd v. Bankstown Football Club Ltd,[37] Brennan CJ, Dawson J, Toohey J and Gummow J stated:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. [38]

[37](1995) 187 CLR 384 (‘CIC Insurance’).

[38]Ibid, 408. (citations omitted)

In Project Blue Sky Inc v Australian Broadcasting Authority,[39] McHugh, Gummow, Kirby and Hayne JJ stated:

[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70]A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71]Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.[40]

[39](1998) 194 CLR 355.

[40]Ibid, 381-382. (citations omitted)

The LBP AS deals in turn with:

· description and distribution;

· conservation status;

· management issues;

· management action;

· other desirable management actions; and

· legislative powers operating.

The substantive text of the LBP AS is supported by a list of references, including a number of publications of which Prof. Lindenmayer (who gave evidence for MyEnvironment) was a joint author.

The critical provisions of the LBP AS for present purposes are those contained in the section headed ‘Management Action’, but it is necessary to refer to the context in which these provisions are found in order to properly understand them.

I have already referred to the general characteristics and history of detection of the LBP. It is unnecessary to set out further the initial portion of the LBP AS dealing with description and distribution, but it is convenient to restate the initial statement of the LBP AS with respect to habitat:

The most important components of Leadbeater's Possum habitat are nest-tree abundance, vegetation structure and food availability. Large old hollow trees (either dead or alive) for nesting and shelter are essential for the survival of Leadbeater's Possum. Maximum population densities occur in regrowth forests (15-50 years) with more than six potential nest-trees per 3 ha and a biomass of Acacia spp. between 20-50% of stand basal area (Smith and Lindenmayer 1992). The term 'potential nest-tree' refers to existing hollow-bearing trees that have the potential to be utilised by the species. Leadbeater's Possum prefer short, fat trees with numerous holes and a large quantity of dense surrounding vegetation (Lindenmayer et al., 1991).[41]

[41]Action Statement #62 made under the Flora and Fauna Guarantee Act 1988, published by the Department of Sustainability and Environment. First published in 1995, republished in 2003, 2.

The LBP AS makes clear by this initial description of LBP habitat that ‘large old hollow trees (either dead or alive) for nesting and shelter are essential for the survival of the LBP’ (‘the initial description of essential habitat’). I take this to refer to the first identified component of habitat, namely ‘nest tree abundance’. It also refers to maximum population densities as occurring in forests which are regrowth forests, have more than six potential nest trees per 3 hectares and have a specified density of acacia species (‘the initial description of optimum habitat’). In this context, the term ‘potential nest trees’ refers to trees which have the present, as opposed to future, potential to be used as nest trees. The LBP AS refers to ‘existing HBT that have the potential to be utilised by the species’. As such, potential nest trees are large old hollow trees. The 1991 article by Lindenmayer et al (to which the habitat description refers) concluded that the continuation of an 80 to 120 year long interval between logging operations will result in trees being harvested well before they develop characteristics which make them suitable as nest sites for arboreal mammals.

Prof. Lindenmayer’s first report in the present case states that montane ash trees are typically 120 years old before hollows regularly begin to appear. However, large hollows typically used by arboreal marsupials typically take 150 to 190 years to first appear then persist until the end of the tree’s life (up to 400 to 500 years) and persist in a dead tree for as long as that tree remains standing (up to a further 70 years).

Under the heading ‘Conservation Status’, the LBP AS sets out ‘Reasons for Conservation Status’, in terms which emphasise the significance of logging activities in determining the availability of potential habitat for the LBP:

Leadbeater's Possum is the only member of the genus Gymnobelideus and wild populations are confined to Victoria. This means that the survival of the species in the wild is totally dependent on conservation measures undertaken in Victoria.
Leadbeater's Possum now appears to be mainly confined to the montane ash forests of the Central Highlands of Victoria, although early records come from a much larger area. The known range of the species expanded rapidly following rediscovery in 1961, and this trend, although slower in recent times, has continued probably due to increasing search efforts and improved detection methods. It has been predicted that the availability of nest trees will decline (Lindenmayer et al. 1990), precipitating a massive decline of Leadbeater's Possum over the next 30 years followed by a population 'bottleneck' lasting until 2075. This bottleneck means that for a period of 50 years, from 2020 to 2075, there will be minimum habitat suitable for Leadbeater's Possum, so threats to population viability will increase. Smith et al. (1985), and Smith and Lindenmayer (1988) pointed out that existing nest-trees in 1939 regrowth forests or recently logged regrowth forests are being reduced by logging or natural decay more rapidly than replacement hollows are developing. Thus, the suitability of regrowth forest for Leadbeater's Possum is declining and it is in these regrowth forests where the highest densities of Leadbeater's Possum may now occur.
In its final recommendation the SAC (1991)[42] determined that the Leadbeater's Possum is:
•significantly prone to future threats which are likely to result in extinction, and

• very rare in terms of abundance and or distribution.[43]

[42]Scientific Advisory Committee constituted under s 8, FFG Act.

[43]Action Statement #62 made under the Flora and Fauna Guarantee Act 1988, published by the Department of Sustainability and Environment. First published in 1995, republished in 2003, 2.

This analysis again points to the significance of preservation of mature HBT within regrowth forests.

The LBP AS then sets out major conservation objectives:

•To guarantee that Leadbeater's Possum can survive, flourish and retain their potential for evolutionary development in the wild. In quantitative terms this may be described as to ensure the survival of Leadbeater's Possum by managing its forest habitat towards a target of no more than a 1% probability of extinction over 250 years throughout the forest within its current range.
•To identify and take measures to protect all areas of optimum and potentially optimum habitat (as defined in this Action Statement) throughout the known range of the species.
•To apply strategies that address the development of habitat for the future by achieving a long-term balance between the rate of loss of habitat and the rate of formation of habitat.
•To develop modified and alternative silvicultural systems that result in the continuing presence of habitat and still allow for the extraction and production of wood products on an economic basis.
•To undertake research on the biology and ecology of the species with particular emphasis on the risk of wildfire to reduce strategic populations and the dispersal and recolonisation capacities of the species.
•To maintain a stable captive-breeding population of the species for community education and research purposes.[44]

[44]Ibid.

The first objective of guaranteeing the survival of the LBP may be regarded as the fundamental objective of the LBP AS. The second objective relating to protection of ‘all areas of optimum and potentially optimum habitat (as defined in this Action Statement) throughout the known range of the species’ is the objective which informs the management actions which are in issue in this case. The third and fourth objectives relate to the long term supply of habitat.

Whilst MyEnvironment submits that the objectives demonstrate that the LBP AS is remedial subordinate legislation, intended to address a serious issue of the public interest, it is also true that the objectives disclose a suite of intended responses. What is intended is the balanced pursuit of protection measures for optimum habitat, strategies addressing long-term provision of habitat, development of habitat-friendly silvicultural practices, continuing research particularly with respect to the effects of wildfire, and the maintenance of a stable captive breeding population.

The LBP AS then deals with ‘Management Issues’. It refers first to the role of FMPs as the primary vehicles for the implementation of ASs:

The Timber Industry Strategy (Victorian Government 1986) sets directions for the timber industry by outlining a balance between timber production and environmental protection. Broad guidelines and principles to achieve this balance have been developed in the Code of Forest Practices for Timber Production (CFL 1989). A requirement of this ‘Code’ is the production of Forest Management Plans (FMPs) which include detailed prescriptions for the conservation of native forest fauna. In State forest, FMPs are the primary vehicles for the implementation of Flora and Fauna Guarantee Action Statements.[45]

[45]Ibid.

The LBP AS then refers to the relative areas of land within the known distribution range of the LBP, which are respectively protected as parks or reserves or State forest excluded from timber harvesting by prescription and state forest available for timber harvesting. It records that less than 50 per cent of the area within the habitat range of the LBP will be available for timber production when the relevant FMPs have been completed. As will be seen, the FMP process defines the areas of State forest excluded from timber harvesting by prescription:

Land use within the known distribution of Leadbeater's Possum includes forest where timber harvesting is permitted (State forest, 69%) and where it is prohibited (parks and reserves, 31%) (LCC 1994); A further 27% of State forest is excluded from timber harvesting by prescription. When the relevant FMPs have been completed less than 50% of the area within the habitat range of Leadbeater's Possum will be available for timber production. The majority of the reserved forest is contained within the recently legislated Yarra Ranges National Park, which is strategically placed at the core of the species' distribution. The Park encloses three large water catchments, comprising the most extensive areas of old-growth and mixed-aged ash forest in this region and represents a critical medium and long-term resource of hollow-bearing trees. Management of parks and reserves for Leadbeater's Possum, will be relatively simple, considering the overriding need for habitat protection, rather than manipulation.[46]

[46]Ibid, 2-3.

The LBP AS then identifies problems with past timber harvesting practices. They include the adoption of a system planned to operate on a nominal 80 year rotation which does not allow trees to grow to an age where they begin to develop hollows for future use:

In parks and reserves, Leadbeater's Possum habitat is not subjected to change by deliberate management. However, in State forest where timber harvesting is permitted, the current system of harvesting and regenerating ash forests is clearfelling. In areas harvested, this involves the removal of all merchantable trees at one felling, followed by seedbed preparation by either burning or mechanical disturbance, and artificial sowing or planting. Large dead and live old trees are left standing on the coupe unless they present an unacceptable safety hazard or are chosen for seed collection. Clearfelling effectively meets key silvicultural requirements and, from an operational viewpoint, the method is comparatively simple, safe and easily supervised. However, for the conservation of hollow-dependent forest fauna, including Leadbeater's Possum, the current practice has two major problems. Firstly, retained trees within the coupe are subject to a high intensity regeneration fire and then to varying degrees of exposure, so managers cannot guarantee that these trees will remain standing through the following rotation. Secondly, the current system is planned to operate on a nominal 80-year rotation, which leaves no allowance for any trees on logging coupes to grow to ecological maturity and thus develop hollows for future use.[47]

[47]Ibid, 3.

The LBP AS further identifies the major challenge for long term conservation of the LBP as the protection and continuing development of old trees with suitable hollows for nesting and shelter in conjunction with suitable habitat for foraging. It records the determination of the most appropriate scale and spatial arrangement of reserved areas as the main issue surrounding the strategy of providing permanent and temporary reservations of forest. It states that the option of modifying or adopting alternative silvicultural systems to develop habitat for the future and to enhance the effectiveness of reserve systems shows promise.

The LBP AS then sets out ecological issues specific to the species:

A Population Viability Analysis (PVA) has shown that, for a 100-year projection, simulated populations of 200 animals or more remained demographically stable and experienced a decline of less than 10% in predicted genetic variability (Lindenmayer et al. 1993). With a mean density of one animal per 3 ha of old growth forest (Lindenmayer 1989) populations of Leadbeater's Possum could survive in areas of mature forest as small as 600 ha, such as those currently in the Yarra Ranges National Park. However, this approach by itself does not meet the Victorian Government's commitment to conserve Leadbeater's Possum throughout their range. A more recent and detailed PVA undertaken by Lindenmayer and Possingham (1994), which was commissioned by CNR as part of developing strategies for the conservation of the species, simulated the dynamics of metapopulations of Leadbeater's Possum in three forest blocks where timber harvesting is permitted and one closed water catchment. This study combined extensive information on the life history attributes of Leadbeater's Possum, the habitat requirements of the species, the spatial distribution of suitable habitat patches, changes in the temporal suitability of forest habitats, and data on the frequency and impact of disturbances such as logging operations and wildfire.
Spatial data on the distribution of different types of habitat patches were derived from detailed forest inventory information that has been captured in the database of a Geographic Information System being developed by CNR. The analysis predicted the likelihood of Leadbeater's Possum becoming extinct within the next 150 years in two of the three forest blocks studied due to the limited areas of existing old growth montane ash forest. A higher probability of persistence was predicted in the other forest block and the water catchment which were characterised by larger patches of old-growth forest. On the basis of this work, the authors strongly recommended that a key forest wildlife management objective must be to grow areas of existing regrowth forest through to ecological maturity or old-growth status (i.e. 250 years). Wildfires were predicted to have a major negative effect on the persistence of populations of Leadbeater's Possum, particularly in areas supporting limited or single areas of old-growth forest. It is important to note that wildfire has been instrumental in the habitat development process, but the scale and intensity of wildfires since European settlement, most notably the 1939 wildfires, has resulted in approximately 82% of ash type forests in the Central Highlands being regrowth with few live hollow-bearing trees. Consequently, these regrowth forests require >150 years of growth before fire can effectively create the necessary floristics and structural diversity critical for Leadbeater's Possum habitat.[48]

[48]Ibid.

This passage records the necessity for old growth montane ash forest trees as a component of adequate LBP habitat.

The last sentence quoted highlights the relationship between regrowth forest and HBT, in terms which implicitly recognise the significance of old HBT. It speaks of regrowth forests as requiring more than 150 years of growth before they have the characteristics critical for LBP habitat.

The LBP AS then amplifies the significance of the interaction between logging practice and the long term supply of old HBT:

The major threats to the long-term survival of Leadbeater's Possum are the progression of current favourable habitat to a structurally less-suitable successional stage and the reduction in the number of available nest-trees (Smith et al. 1985). Currently, 50% of nesting hollows are provided by very old trees killed by wildfire in 1939 and earlier (Smith and Lindenmayer 1988). Lindenmayer (1990) found that 18% of 302 measured living and dead hollow-bearing trees had collapsed through natural decay between 1983 and 1988. These figures translate to a loss of 3.6% per annum for that period. Smith et al. (1985) concluded that, unless then current (1985) management prescriptions in the Central Highlands were altered, Leadbeater's Possum would be eliminated from logged areas. The nominal rotation length of 80 years does not allow trees to grow large enough on harvested areas for hollow formation to begin, let alone develop sufficiently for Leadbeater's Possum to use. Smith and Lindenmayer (1988) have described in detail the form of trees selected as nest sites, and their data emphasise the old age of trees selected. It thus appears, that, to properly cater for Leadbeater's Possum, rotation times should be well in excess of 200 years. However, by that age trees would have senesced and be well beyond optimum harvest age, and the forest structure may not be suitable for Leadbeater's Possum feeding and movement requirements. Therefore, strategies are needed to maintain an adequate number and even distribution of nest-trees in selected areas of regrowth forest and to allow for a proportion of regrowth, either as individual trees or complete stands of forest, to grow through to ecological maturity (>250 years).
Under current forest management practices such strategies would necessarily be confined solely to a strategy of longterm reservation. However, a major program commenced under the Timber Industry Strategy continues 'to evaluate the effectiveness of alternative and potentially more environmentally sensitive silvicultural systems, such as the even-aged shelterwood and uneven-aged group selection systems where clearfelling is now used'. Experimental and operational trials of retained overwood systems have shown particular promise from both environmental and economic perspectives and are approaching the stage where their adoption as a viable alternative to clearfelling systems is a reality. Such a system will be instrumental in providing long-term optimal habitat for Leadbeater's Possum.[49]

[49]Ibid, 3-4.

The LBP AS endorses changed timber harvesting practices and, in particular, a change from clearfelling as instrumental to providing long term optimal habitat for LBP.

The LBP AS records that fire may have both positive and negative habitat consequences:

Fire is an integral component of montane ash forest ecosystems and has an important influence on the occurrence, extent and viability of habitat for Leadbeater's Possum. This influence can be both positive and negative, and varies greatly depending on the extent, frequency and intensity of fire. Frequent, low-intensity fire (e.g. every 50 years) will have a positive effect by encouraging floristic and structural diversity necessary for foraging habitat and by not killing existing and potential hollow-bearing trees. While very intense fire will also create suitable foraging habitat, it will kill all or most trees and thus reduce the time during which hollows will be available for the species. Despite careful planning and modern technology, wildfire remains highly probable, yet unpredictable in its effects, so conservation strategies require options with regard to both space and time to attempt to counter widespread deleterious effects of fire and to take advantage of the positive effects.
Both fire and timber harvesting operations, or the absence of them, may result in the loss or development of habitat for Leadbeater's Possum. The varying nature of such disturbances (e.g. fire intensity and different silvicultural systems) and the time between them will, through the process of forest succession, determine when and for how long habitat will occur in an area of forest. Consequently, management for the conservation of the species, which must include the provision of adequate habitat through time, needs to incorporate different strategies, applied individually or in combination, for different timeframes into the future.
A common practice undertaken in Victorian forests following wildfire is salvage logging. In the past little recognition has been given to the value of burnt stems and fire-damaged trees in the forest ecosystem, despite their known importance to a wide variety of hollow-dependent fauna, including Leadbeater's Possum. Extensive salvage logging was undertaken in the montane ash forests of the Central Highlands following the 1939 bushfires and this is suspected to have exacerbated the current extensive areas of regrowth forest where there are few hollow-bearing trees.[50]

[50]Ibid, 4.

The LBP AS then deals with wider conservation issues and endorses field management (as distinct from management of a captive population) as appropriate for the conservation of the species.

The LBP AS goes on to deal with social and economic issues. It expressly envisages an ongoing and adaptive response to the economic and social impacts of the management of forest for the conservation of the LBP:

The philosophical, cultural, biological and aesthetic values of Leadbeater's Possum and other forest wildlife are intrinsic and cannot be directly translated in monetary terms, although estimates can be derived indirectly. However, monetary values can be directly calculated for the timber resource that is within the known range of the possum. The LCC estimated in 1994 that the mean standing royalty value of ash eucalypt timber is $10,465 per ha. The gross value of the timber increases to $29,210/ha after transport to the mill and $236,000/ha when it has been processed (LCC 1994). A 1987 estimate put the gross value of the finished product at point of consumption at about $500,000 per ha (Squire et al. 1987). Less easily calculated are values to the community of water supply, soil conservation and tourism.
There will be negative social impacts only if conservation of Leadbeater's Possum leads (in either short or long-term) to reduction or cessation of timber harvesting in some areas. Many local communities are essentially dependent on the timber industry. A consultant's study commissioned by the LCC estimated that the entire Central Highlands timber resource sustains about 1840 jobs directly and 2390 indirectly. Social factors include the basic issues of employment and the attendant relationships within regional communities - housing, services, business interests. Other social constraints may include retraining and perhaps relocation of some people if there are any impacts. The complexities of Leadbeater's Possum management suggests that the assessment of the economic and social impacts of actions will be dynamic and adaptive, and that those impacts will be subject to review. The analysis of the impacts will need further investigation. An appropriate methodology has been prepared by Reid Sturgess (1995).[51]

The letter of Ms White of 31 January 2012, quoted above, confirms that DSE is undertaking a review of the existing management prescriptions for the LBP. The proposition that the overall system of reserves and exclusion zones should be reviewed does not, however, compel the conclusion that the variable retention harvesting of Gun Barrel has the capacity to materially affect the overall adequacy of such a system.

Such review will necessarily involve an evaluation of factors bearing on the sustainable ecological use of the whole of the forest affected by the FMP. Such a review involves policy considerations not readily justiciable before this Court.

Prof. Lindenmayer has sought to promote a fundamental change of strategy by way of correspondence with the relevant Minister. By letter dated 31 October 2011 to the Hon. Peter Walsh, Minister for Agriculture and Food Security, Prof. Lindenmayer advised that, as an urgent measure, all areas of 1939 regrowth ‘that support some large living trees’ be exempted from logging. In addition, he stated that if logging is to continue in stands of 1939 regrowth, there is an urgent need to adopt variable retention harvesting systems that result in the retention of islands of forest of approximately 1.5 hectares or more within logged coupes.

I pause to observe that the criterion of ‘large living trees’ is in substance the criterion which Prof. Lindenmayer contends should not be regarded as relevant in the application of the FMP. Prof. Lindenmayer said in evidence:

The protection of large living trees is critical, in my mind, because of the very limited areas of old growth, unlogged, unburnt forest in the Central Highlands of Victoria. It's less than 2,000 hectares of a possible 171,000 hectares.

I should add that I do not accept that the reference to large living trees in the letter to the Minister is to be equated with ‘hollow-bearing trees’ of all sizes.

Further, VicForests has now accepted the application of variable retention harvesting to Gun Barrel in accordance with the second strategy put forward in the letter.

In cross-examination, Prof. Lindenmayer acknowledged that the strategy suggested in his letter raised consequential issues, including the question of ongoing sustained yield. If variable retention harvesting is adopted generally, this will result in an increase in the number of coupes logged unless the overall yield is reduced.

More fundamentally, the resolution of the major forest planning issues raised by Prof. Lindenmayer’s letter cannot be achieved in this proceeding. First, the evidence does not permit a conclusion to be reached as to the appropriateness of the proposal over the whole of the forest area in question. Secondly, the issue ultimately involves questions of policy judgment which are not the province of the Court. The necessary decision raises questions of sustainable ecological development and net community benefit which involve discretionary judgements as to the weight to be given to particular factors and the resolution of their balance. The discretion to make this judgement is not vested in this Court.

If I am wrong in the conclusion that the proposed logging of Gun Barrel does not engage the precautionary principle because it does not constitute a threat of serious or irreversible damage to the LBP and/or its habitat, a series of consequential questions arise in respect of which I shall seek to summarise my conclusions for the sake of completeness.

If the logging were regarded as involving a threat of serious or irreversible environmental damage in the relevant sense, it might be said to be attended by material scientific uncertainty[120] in that:

(a)the overall extent of LBP habitat in the Central Highlands effectively protected after the 2009 fires is uncertain; and
(b)the capacity of the LBP to survive the ‘bottleneck’ reduction in optimum habitat in or about the period between 2020 and 2075 is uncertain.

[120]Brown Mountain, [194]-[198].

In turn, if this view were taken, the burden would shift to VicForests to show that the threat was negligible.[121] Assuming for present purposes that this burden could not be discharged, nevertheless MyEnvironment faces a further fundamental difficulty in establishing that the relief it seeks is proportionate to the threat alleged.
[121]Brown Mountain, [199].

In both opening and final submissions, MyEnvironment made clear that it does not contend the precautionary principle must result in a permanent restraint over logging in so much of the Toolangi coupes as is not zone 1A habitat. Rather, MyEnvironment contends that such logging should be restrained unless and until VicForests can satisfy the Court that adequate adaptive measures have been taken to protect the environment. In particular MyEnvironment seeks to restrain such logging until:

(a)surveys of the unsurveyed parts of the Toolangi coupes conducted by appropriately qualified experts have, pursuant to the methodology ultimately developed by DSE, been completed;
(b)the LBP AS has been reviewed;
(c)the reserve system for the LBP is reviewed; and
(d)an appropriate methodology has been developed for detecting zone 1A habitat.

The precautionary principle is not, however, directed to the avoidance of all risks. The degree of precaution appropriate will depend on the combined effect of the seriousness of the threat and the degree of uncertainty. The margin for error in respect of a particular proposal may be controlled by an adaptive management approach,[122] but the adaptive management measures must bear directly and proportionately on the risk.
[122]Brown Mountain, [203]-[205]; Telstra case, [157]-[164].

Insofar as the survey requirement is concerned, I am satisfied that the potential habitat within Gun Barrel has been adequately surveyed. It has been assessed by Messrs Blair and McBurney, by Dr Ryan and by the officers of DSE . Insofar as the other coupes are concerned, I am not satisfied that the evidence shows they will not be properly surveyed before timber harvesting proceeds.

Insofar as the review of the LBP AS is concerned, the evidence is that DSE first sought comment from VicForests for a review of the LBP AS on 18 July 2008 and that at the date of trial there had been no indication when that process would be completed.

No direct evidence was called from officers of DSE as to the process, or progress, of the review. Nevertheless, MyEnvironment produced a series of documents relating to the review. A revised draft of the LBP AS dated July 2011 was put in evidence. This repeats the current LBP AS prescriptions in respect of zones and describes these as those in place since the mid-1990s. Intended management actions include the following objective and actions:

Objective III To secure populations or habitat from potentially incompatible land use or catastrophic loss

Targets:         By 2015:
·     integrity of permanent reserve system maintained;
·     Zone 1 patches identified and recorded;
·     monitoring sites mapped and protected;
·     forest audits completed annually;
·     training of VicForests’ field staff in Zone 1 recognition completed annually;
·     salvage harvesting prescriptions reviewed and updated as necessary;
·     fire refuges identified and protected;
·     net gain policy effectively applied to development proposals.

Action 18Continue to protect habitat from the impacts of timber harvesting.

Timber harvesting potentially poses a significant threat to the survival of Leadbeater’s Possum through loss of critical habitat such as den trees and food resources, and mechanisms to manage Leadbeater’s Possum habitat in State forest have been developed. The newly-established permanent reserve system for Leadbeater s Possum in State forest will be maintained. Zone 1A or Zone 1B habitat will continue to be protected outside the permanent reserve system from timber harvesting and associated road construction. A process to record the location and boundaries of patches of Zone 1 habitat will be established as they are identified through the coupe planning process and other field-based activities. Long-term monitoring sites for Leadbeater’s Possum research are identified in relevant spatial information systems to ensure that they are not affected by timber production and associated road construction/maintenance. Salvage timber harvesting prescriptions will address the maintenance or restoration of habitat connectivity for Leadbeater’s Possum following severe fire events. This will be considered at both site- and landscape-scales. The latter will involve assessment of the spatial configuration of salvage logging coupes relative to unburnt/lightly burnt that may provide critical refugia for Leadbeater’s Possum following severe fire events.
Responsibility DSE, VicForests
Action 19Provide training for field staff in identification and protection of habitat

Training will be provided on an annual basis in the recognition and interpretation of Zone 1 habitat and the application of prescriptions for its protection. Training will also emphasise the role of hollow bearing trees and stags in providing habitat even when densities fall below the thresholds for Zone 1, and will canvass measures to protect such trees and stags during harvesting and regeneration burning.
Responsibility: VicForests
Action 20Continue to audit the planning and execution of timber harvesting and associated activities for compliance with the Code of Practice for Timber Harvesting.

Annual independent audits of compliance with the Code of Practice for Timber Harvesting will continue to be undertaken.
Responsibility: DSE
Action 21       Protect habitat from incompatible fire practices
High intensity fires can affect the availability of den-sites in both the short and long-term in three ways, by killing live hollow-bearing trees, by destroying dead hollow-bearing trees and by killing younger trees thereby preventing them from advancing to maturity and associated hollow-development. Prescriptions will be developed and applied that ensure existing den sites are not destroyed or damaged during planned burns. Sites will be identified where it may be feasible to undertake fire suppression activities to protect important Leadbeater’s Possum habitat (i.e. relative to access tracks, fuelbreaks etc). This applies to both mixed age, old-growth and regenerating ash forests. Guidelines will be developed that define appropriate fire suppression operations within important Leadbeater’s Possum habitat. Strategic fire suppression sites in important Leadbeater’s Possum habitat will be mapped and communicated to fire incident management teams via natural values officers. Where opportunities arise, the effectiveness of fire suppression techniques at protecting critical Leadbeater’s Possum habitat in montane ash forest will be investigated.
Responsibility: DSE, Parks Victoria
Action 22       Protect habitat from incompatible development activities.
The Native Vegetation Management Framework, including the policy of avoiding, minimising and offsetting vegetation loss, will continue to be applied to development proposals and other activities that may affect Leadbeater’s Possum. Activities include road and track construction or maintenance in or adjacent to habitat, and recreational development in parks, Canopy connectivity will be maintained across tracks and ski trails at Lake Mountain. The Lake Mountain and Mt Baw Baw Alpine Resort Management Boards will be provided with information to guide their site maintenance and development activities to avoid impacts on Leadbeater’s Possum’s habitat. Canopy connectivity will be maintained across tracks and ski trails on the Baw Baw plateau. Land managers/operational teams for the Baw Baw plateau will be provided with information to guide their site maintenance/development activities so that they do not impact on Leadbeater’s Possum s conservation.
Responsibility: DSE
Action 23       Protect post-fire refuge habitat.
Within fire affected areas unburnt or lightly burnt Leadbeater’s Possum habitat that may provide critical post fire refugia for the species will be identified, mapped and protected within fire affected areas. This may require control of predators and/or introduced browsers, provision of nest boxes and management of salvage timber harvesting operations. The latter will involve assessment of the spatial configuration of salvage logging coupes relative to unburnt patches that may provide critical refugia for Leadbeater’s Possum following severe fire events.
Responsibility DSE, Parks Victoria

This document does not disclose an intention to change the operation of zone 1A or zone 1B. It provides no basis for concluding that the review might affect the status of Gun Barrel in terms of these controls.

MyEnvironment also tendered truncated minutes of 25 October 2011 of a meeting of the LBP Recovery Team. Such team is, as I understand it, associated with the National Recovery Plan for the LBP required pursuant to the Commonwealth EPBC Act. The minutes record that the revised LBP AS was still in draft and that discussions took place as to whether the draft should be finalised or wait for results from Australian National University and Arthur Rylah Institute (‘ARI’) studies.

The minutes record the steps/information needed as follows:

·Revised prescriptions in action statements so that a greater proportion of suitable LBP habitat is included in zone 1 habitat definitions.
·Factor in the impact of 2009 fires on availability of suitable habitat.
·Age to diameter standard – investigate if possible to link to hollow and hollow formation.
·Define how to draw a polygon around zoned habitat.
·Strategy, training and audit.

The status of these ‘steps’ was not established by any satisfactory evidence. If they were critical to MyEnvironment’s case, they were open to explication by witnesses on subpoena. VicForests was not represented at the meeting of the Recovery Team in question, and those present were not in its camp.

The column alongside these steps concluded:

·Investigating how best to do this task.
·Reliant on ANU and ARI survey results.

In late November 2011, DSE took steps to engage a consultant to assist with the preparation of a revised LBP AS.

The documentation shows that the LBP AS is under review, but not that there is any draft which would relevantly alter the management zone provisions. Despite the broad terms of the minutes of the recovery team meeting, the documentary evidence does not justify a conclusion that it would be proportionate to any threat to LBP habitat resulting from the variable retention harvesting of non-zone 1A habitat within Gun Barrel, to require restraint of such timber harvesting until the LBP AS review is completed. To date, the draft continues to adopt the same zoning system albeit that it augments this system by a series of complementary actions.

MyEnvironment next contends that timber harvesting in the Toolangi coupes should be restrained until the adequacy of the existing reserve system has been reassessed in consequence of the 2009 fires.

The documentation produced on subpoena from DSE shows that research is being undertaken by the ARI within DSE in respect of conservation management of the Central Highlands. On 4 September 2011, the ARI published a research plan entitled ‘A New Strategic Approach to Biodiversity Management’. The objectives of the project were stated to be:

·To improve information about the distribution of habitat use of threatened fauna species in the forest landscapes of eastern Victoria to inform the management of threatened species across the public land estate.
·To develop and document a clear and transparent framework, based on the best knowledge available, that provides for both sustainable timber harvesting and the long term persistence of species across the public land estate.
·To reduce high priority risks affecting VicForests’ operations and deliver increased certainty and security to the Victorian native timber industry.

There are two components to the project, a research component and a policy component. The research plan relates to the first component. After consultation with an industry reference group, it was decided to focus on the Central Highlands area. The research component is intended to culminate in a final technical report which is planned to be completed by 30 June 2013. The project outlines the following specific aims relating to the LBP:

Leadbeater’s Possum
There is a large amount of existing data on the distribution, ecology and habitat requirements of Leadbeater’s Possum (e.g., Smith and Lindenmayer 1988, Lindenmayer et al. 1991, Lindenmayer 2000, Lindenmayer and McCarthy 2006). However, since the 2009 bushfires burnt a considerable proportion of the species geographic range (45% of the Leadbeater’s Possum reserve system was burnt; Steve Smith, DSE, pers. comm.), there will need to be extensive reassessments of where suitable habitat now occurs and where it is likely to occur into the future. Preliminary assessments since 2009 indicate that this species has been severely impacted by the fires. This raises the question as to whether the current reserve system and prescriptions are adequate to ensure the long term future of the species, and this issue will be investigated.
There is a good understanding of what constitutes suitable Leadbeater’s Possum habitat. Important habitat features include a combination of tree hollows at a suitable density, horizontal connectivity through the canopy or understory, and high densities of both wattles and decorticating bark to provide a food source (Steve Smith, pers. comm.). Translating this understanding of habitat values into measurable habitat attributes that can be consistently assessed both on the ground, and predicatively mapped across the species range from available modelled and remote-sensed spatial data may be possible based on modelling of existing data sets. This project will develop new methods for assessing and documenting suitable habitat for Leadbeater’s Possum, and will incorporate forest stand variables and remote-sensing techniques such as LIDAR (Light Detection and Ranging) where possible. The capacity of remote-sensed datasets to accurately predict habitat suitability for Leadbeater’s Possum is currently unknown. However this approach will be investigated to determine if it is adequate for identifying habitat quality with sufficient accuracy for decision making.
The amount of new data collection to be carried out is still to be determined, but will require appropriate sampling stratification between state forest and parks and reserves, forest growth stages and disturbance histories, including sites burnt and unburnt during the 2009 bushfires. Attention will be given to integration of data collection with that being carried out independently by David Lindenmayer and colleagues, to ensure that both datasets are collected in a manner that allows maximal integration of all available data sources at the analysis and modelling stage of the project.
The planning will also factor in a study by Dan Harley, Zoos Victoria, assessing the suitability of habitats for Leadbeater’s Possum within the Maroondah and O’Shannassy catchments following the 2009 fires. Key criteria used to identify suitable habitat remaining post-fire in this study included: presence of stags, presence of dense mid-storey vegetation and canopy condition (Parks Victoria 2011).
A number of techniques are potentially suitable for determining the presence of Leadbeater’s Possum at survey sites, including stag watching, call surveys (Leadbeater’s Possum calls and owl calls) and automated remote camera surveys. A combination of methods will probably be used, some of which will also be of value for detecting other priority threatened species at the same sites (see below). Surveys will be undertaken from spring 2011 until autumn 2012.

Approaches to modelling the available distributional data, and data to be collected during the current project will involve a combination of presence-only (e.g. maximum entropy modelling - Maxent) and presence-absence species distribution modelling techniques. Mapped data sets for habitat variables known to be of significance for determining habitat quality for the species will be included in the models, along with variables related to growth stage, forest structure and age, and recent fire history will also be included wherever possible. The known preferences of Leadbeater’s Possum for forest of particular growth stage will be incorporated and the modelling will investigate how the species is likely to be influenced in the future as the forest structure changes.
An important question to be addressed for Leadbeater’s Possum, particularly in light of the 2009 fires, is how much habitat is required to support a viable population. A similar approach will be taken as in the Long-footed Potoroo first phase project by undertaking a Population Viability Analysis and determining the area require[d] to support such a population under differing scenarios.

The proposed research is clearly of a broad ranging and significant nature, but the proposal does not suggest that there is a case for restraining all timber harvesting within the Central Highlands (or the Toolangi coupes in particular) pending the completion of the two stage plan.

I am satisfied that the ARI research will result in a review of the adequacy of the current reserve and exclusion zone provisions, but not that the process proposed can itself be said to justify the restraint of all timber harvesting of regrowth ash forest within the FMP area, including Gun Barrel.

MyEnvironment lastly contends that timber harvesting in the Toolangi coupes should be restrained pending the resolution of a new methodology for surveying LBP and LBP habitat by DSE. A recent draft methodology document was tendered in evidence. It seems that the proposal has so far gone through 13 drafts. The draft document tendered reflects the primary dispute over the zone 1A prescription contained in the LBP AS and the FMP, which goes to the threshold issues I have determined above. The draft document takes the view in summary:

·To meet the first criteria in zone 1A, any area greater than 3 hectares in size of mature ash (more than 120 years old), or mixed age forest where the oldest age class is mature, fits the criteria, irrespective of the number of hollow bearing trees within a 3 hectare area.
·For the second zone 1A criterion to be met, regrowth forests from 1939, or more recently, need to have at least 12 live HBT: these can be in any configuration.

In turn, the documents tendered reveal Mr Lee Miezis, Executive Director and Parks DSE recording the outcomes of a meeting on 13 January 2012 between DSE officers concerning the draft under the heading ‘LBP zone 1A’:

·Definition is more than 12 mature and senescent HBT per 3 hectares in patches greater than 3 hectares must be protected in SPZ.

This obviously reflects the terms of the FMP.

I do not accept that the adoption of a survey methodology by DSE could be regarded as resolutive of the interpretation of either the LBP AS or the FMP.

In turn, I do not accept that it could be regarded as appropriate to restrain logging in Gun Barrel pending the resolution of a survey methodology. The relevant prescription of zone 1A is contained not in a survey methodology document, but in the LBP AS and in turn the FMP. I am not persuaded that there is any satisfactory evidence that VicForests will fail to apply the FMP zone standard to the Toolangi coupes. The real question is what is that standard.

Accordingly, if (contrary to my view) the further variable retention harvesting of Gun Barrel could be regarded as posing a threat of serious or irreversible harm to the environment by reason of the loss of LBP habitat, I would not be satisfied that such harvesting should be restrained pending any of the steps which MyEnvironment propounds as appropriate adaptive management measures:

(a)Gun Barrel has been adequately surveyed, South Col and Freddo are still being assessed;
(b)the review of the LBP AS has proceeded thus far on the basis that the existing definitions of zones remain in the draft document;
(c)whilst there is a proposal for a comprehensive research-based review of the reserve and exclusions system, that proposal does not, in its terms, suggest a basis for restraining the harvesting of Gun Barrel; and
(d)whilst DSE is developing a survey methodology document for detecting LBP habitat, that document cannot be regarded as potentially resolutive of the critical legal requirements binding on VicForests.

Accordingly, I am not satisfied that the adaptive management measures suggested by MyEnvironment are properly regarded as adaptively directed to or proportionate to the threat hypothesised.

In the circumstances, it is unnecessary to consider VicForests’ case as to the broader economic and social impacts of the grant of an injunction, save to observe that VicForests’ case in this regard with respect to the consequences of restraining logging at Gun Barrel was less than compelling, principally because of the relatively small volume of timber involved and the difficulty in postulating adverse net effects, having regard to a series of considerations raised by MyEnvironment.

Was the initial logging of Gun Barrel unlawful?

MyEnvironment also seeks a declaration that commencement of timber harvesting operations in Gun Barrel between 4 March and 25 April 2011 was unlawful.

There is no evidence that the area contained zone 1A habitat as prescribed by the FMP.

Further, Prof. Lindenmayer conceded that the probability is that it did not contain zone 1A habitat, applying the concept of zone 1A for which MyEnvironment contends.

I am not satisfied that the initial logging of Gun Barrel was unlawful. It did not breach the relevant management prescriptions and I am not satisfied that it breached the precautionary principle, for like reasons to those I have given with respect to the proposed variable retention harvesting of the balance of Gun Barrel.

Conclusion

For the above reasons, my conclusions are that:

(a) the logging of Gun Barrel as now proposed will not breach the requirements of the LBP AS or the FMP, or the precautionary principle;

(b) the initial timber harvesting of Gun Barrel has not been demonstrated to have been unlawful;

(c) the proposals to log Freddo and South Col have not progressed to the point where it could be concluded that such logging should be restrained on the basis it would be unlawful, either by reason of breach of the LBP AS or the FMP, or the precautionary principle.

In final address, counsel for MyEnvironment summarised the issues in this case by way of a series of questions. It is appropriate to respond to MyEnvironment’s case by stating my answers to them in summary form:

1.What are the relevant legal obligations imposed on VicForests? More specifically:
(a)Does the Leadbeater’s Possum Action Statement (LBP Action Statement) impose obligations on VicForests in relation to Zone 1A habitat (as defined in the LBP Action Statement) independently of the Central Highlands Forest Management Plan (Central Highlands FMP)?
Answer:No

(b)What is the proper construction of the prescription in the LBP Action Statement concerning Zone 1A habitat?
Answer:The prescription relating to regrowth ash forest with at least 12 live HBT per 3 hectares relates to mature trees (more than 120 years old) when the minimum area for assessment and establishment of zone 1A forest is 3 hectares. The question is otherwise unnecessary to answer.

(c)What is the proper construction of the prescription in the Central Highlands FMP concerning Zone 1A habitat?
Answer:The zone 1A criteria relate to living mature or senescing hollow-bearing trees (comprising Mountain Ash, Alpine Ash or Shining Gum) and require more than 12 per 3 hectares in patches greater than 3 hectares.

(d)Is VicForests required to comply with the precautionary principle when conducting its operations in the Toolangi coupes?
Answer:Yes.

2Do all or parts of the Toolangi coupes comprise Zone 1A habitat such that VicForests is prohibited from logging those parts of the coupes? More specifically:
(a)If the LBP Action Statement imposes independent obligations on VicForests, do the Toolangi coupes contain Zone 1A habitat within the meaning of the LBP Action Statement?
Answer:Not applicable, but in any event Gun Barrel does not.

(b)Further or alternatively, do the Toolangi coupes contain Zone 1A habitat within the meaning of the Central Highlands FMP?
Answer:No. Gun Barrel does not and the presence of zone 1A habitat in Freddo and South Col remains to be ascertained.

3If the answer to Question 2 is yes, is VicForests prohibited, by reason of the precautionary principle, from harvesting the parts of the Toolangi coupes not surveyed by Professor Lindenmayer (the unsurveyed parts) until:
(a)those parts have been surveyed in accordance with the legal obligations under either the LBP Action Statement and/or the Central Highlands FMP (depending on the answers to Question 1a and 1b); and
(b)such surveys are undertaken in accordance with a methodology developed and approved by DSE?
Unnecessary to answer.

4If the answer to Question 2 is yes, is VicForests prohibited, by reason of the precautionary principle, from harvesting the parts of the Toolangi coupes that do not (on the current evidence) comprise Zone 1A or Zone 1B because of:
(a)the threat of serious environmental damage posed by such operations to those parts of the coupes comprising Zone 1A; and
(b)the threat of serious environmental damage posed by such operations to the ongoing survival of the Leadbeater’s Possum following the 2009 bushfires, unless and until appropriate adaptive management measures have been undertaken?

Unnecessary to answer.
5If the answer to Question 2 is that, in relation to a particular coupe, the Plaintiff has not proved, on the balance of probabilities, that any part of the coupe comprises Zone 1A habitat, is VicForests prohibited, by reason of the precautionary principle, from harvesting such a coupe, because of the threat of serious environmental damage posed by such operations to the ongoing survival of the Leadbeater’s Possum following the 2009 bushfires, unless and until appropriate adaptive management measures have been undertaken?
Answer:No.

6Were any or all of the harvesting operations undertaken in Gun Barrel coupe between 4 March 2011 and 25 August 2011 undertaken in breach of a condition on the forest coupe plan and the precautionary principle and hence unlawful?
Answer:No.

For the above reasons, the proceeding will be dismissed.

[2012] VSC 91

14 March 2012