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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading MyEnvironment Inc v VicForests

Details

AGLC: MyEnvironment Inc v VicForests [2012] VSC 91
Case: [2012] VSC 91
Decision Date: 14 March 2012

CaseChat Overview and Summary

MyEnvironment Inc sought a permanent injunction to prevent VicForests from logging at three coupes near Toolangi, on the basis that the coupes contained habitat of the endangered Leadbeater’s Possum. VicForests argued that the coupes did not contain sufficient density of hollow-bearing trees to constitute zone 1A habitat for the Leadbeater’s Possum, and that its proposed logging did not threaten serious or irreversible damage to the species. The Court had to determine whether the proposed coupes contained Leadbeater’s Possum zone 1A habitat, and whether VicForests’ logging plans complied with the precautionary principle and other relevant legislation. The Court considered whether VicForests had properly identified and assessed the potential impact of the logging on the Leadbeater’s Possum, and whether its proposed adaptive management measures were proportionate to the threat. The Court found that VicForests had not provided sufficient evidence to show that the proposed coupes contained Leadbeater’s Possum zone 1A habitat. However, the Court held that VicForests had adequately assessed the potential impact of the logging on the species, and had implemented adaptive management measures that were proportionate to the threat. The Court concluded that there was no threat of serious or irreversible damage to the Leadbeater’s Possum, and that VicForests’ proposed logging plans complied with the precautionary principle and other relevant legislation. The application for a permanent injunction was dismissed.

The Court dismissed the application for a permanent injunction, holding that VicForests had not provided sufficient evidence to show that the proposed coupes contained Leadbeater’s Possum zone 1A habitat. The Court held that VicForests had adequately assessed the potential impact of the logging on the species, and had implemented adaptive management measures that were proportionate to the threat. The Court found that there was no threat of serious or irreversible damage to the Leadbeater’s Possum, and that VicForests’ proposed logging plans complied with the precautionary principle and other relevant legislation.

Orders