MyEnvironment Inc v VicForests

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

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

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