Warburton Environment Inc v Secretary, Department of Energy, Environment and Climate Action (No 2)
[2025] FCA 91
•7 February 2025
FEDERAL COURT OF AUSTRALIA
Warburton Environment Inc v Secretary, Department of Energy, Environment and Climate Action (No 2) [2025] FCA 91
File number(s): VID 448 of 2024 Judgment of: HORAN J Date of judgment: 7 February 2025 Date of publication of reasons: 18 February 2025 Catchwords: PRACTICE AND PROCEDURE – application to be released from undertaking on condition that amended form of undertaking be given to the Court – where Secretary undertook not to remove trees located within fuel breaks except in specified circumstances – where dispute subsequently arose between the parties regarding scope of undertaking – where Secretary proposed to give amended undertaking – whether additional requirements should be imposed on Secretary by way of undertaking or injunction – application to release Secretary from current undertaking granted – amended undertaking given by Secretary Legislation: Emergency Management Act 2013 (Vic)
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 475(2)
Cases cited: Adam P Brown Male Fashions Pty Ltdv Philip Morris Inc (1981) 148 CLR 170
Commonwealth Bank of Australia v The Law Debenture Trust Corporation plc (No 4) [2018] WASC 165
HJ v Independent Broad-Based Anti-Corruption Commission (2021) 64 VR 270
Lin v Lin (No 4) [2024] VSC 759
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 55 Date of hearing: 5 and 7 February 2025 Counsel for the Applicant: J Korman and M Beaconsfield Solicitor for the Applicant: J King Legal Counsel for the Respondent: M Hosking and H Douglas Solicitor for the Respondent: Ashurst ORDERS
VID 448 of 2024 BETWEEN: WARBURTON ENVRIONMENT INC
Applicant
AND: SECRETARY TO THE DEPARTMENT OF ENERGY, ENVIRONMENT AND CLIMATE ACTION
Respondent
ORDER MADE BY:
HORAN J
DATE OF ORDER:
14 FEBRUARY 2025
THE COURT NOTES THAT:
1.The Respondent has given an undertaking in the form annexed to these orders (the revised undertaking).
2.The Applicant’s undertaking as to damages recorded in the orders made on 9 September 2024 and 18 October 2024 in this proceeding continues to apply on the basis that references in that undertaking to the “respondent’s undertaking” are references to the revised undertaking.
THE COURT ORDERS THAT:
1.The Respondent be released from its undertaking recorded in the orders made on 18 October 2024 on the condition that it give the revised undertaking.
2.Liberty to apply.
3.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE – RESPONDENT'S UNDERTAKING
1.In this undertaking, ‘fuel break’ means ‘a strip of land where vegetation has been permanently modified to reduce rate of spread and intensity of fire for the direct protection of assets and/or to assist fire control’
2.The respondent will not remove hollow-bearing trees (HBTs) or recruitment trees (RTs) (as defined in the Further Amended Statement of Claim) within, or within one tree length of, fuel breaks located in the Central Highlands (as identified in Annexure 2 to the Further Amended Statement of Claim), until the hearing and determination of the proceeding, except:
(a) where necessary to respond to an emergency within the meaning of the Emergency Management Act 2013 (Vic); or
(b) where necessary to ensure the fuel break can be safely used by firefighting personnel as a control line in the delivery of planned burns — in which case, the respondent will only remove HBTs or RTs:
(i)prior to the ignition of the planned burn and after the perimeter of the planned burn area is secured and no break away fire is expected — after undertaking the processes described in sub-paragraphs (A) to (C) below and deciding that none of the alternatives to the removal of HBTs or RTs considered as part of those processes are reasonably capable of reducing the risk to firefighting personnel to a level where the fuel break is safe to use for all personnel; or
(ii) after the ignition of the planned burn but before the planned burn area is secured and no break away fire is expected — if Qualified and Agency Endorsed personnel within the meaning of Schedule 1 to JSOP 08.03 (a Qualified Tree Assessor) considers that the removal of the HBT or RT is necessary to maintain a safe working environment; or
(c)in the case of fuel breaks other than those identified in the Annexure to this undertaking, where, in the course of maintenance works that do not involve the systematic identification, assessment and treatment of tree hazards, a Qualified Tree Assessor has:
(i)identified the tree as a Clear and Present Danger Tree or Cross Tree (as defined in JSOP 08.03) (CPD Tree);
(ii)considered:
(1) whether an exclusion zone would be sufficient to manage risk as an alternative to removal; and
(2)if the tree hazard relates to only a branch or part of the tree, whether the hazardous part only can reasonably be treated by removal and the remainder of the tree retained; and
(iii)decided that neither of those alternatives to the removal of the CPD Tree is reasonably capable of reducing the safety risk presented by the CPD Tree to an acceptable level.
(A)For the purposes of paragraph (b)(i) above, the processes undertaken by the respondent will depend on the phase of the planned burn.
(B) Prior to the ignition of the planned burn, a Qualified Tree Assessor will assess tree hazards within, or within one tree length of the edge of, the section of the fuel break to be used as a control line for the planned burn. This assessment will include the following:
(i) for any tree identified as a CPD Tree, the Qualified Tree Assessor will consider:
(1) whether an exclusion zone would be sufficient to manage risk as an alternative to removal; and
(2)if the tree hazard relates to only a branch or part of the tree, whether the hazardous part only can reasonably be treated by removal and the remainder of the tree retained;
(ii) for any tree identified as a Potential Clear and Present Danger Tree (Potential CPD Tree), the Qualified Tree Assessor will determine whether the protection of the tree can be assured by applying protection measures, which may include raking around the base of the tree to remove vegetation to avoid fire getting into the tree causing it to become hazardous, using ignition patterns to prevent the direct application of fire to the base of the tree, and/or wetting down or foaming the tree to prevent ignition;
(iii) if the Potential CPD Tree is classified as a Potential CPD Tree – Protection Not Assured or Slash Tree (as defined in JSOP 08.03) (Potential CPD Tree – Protection Not Assured), the Qualified Tree Assessor will consider:
(1) whether an exclusion zone would be sufficient to manage risk as an alternative to removal; and
(2) if the tree hazard relates to only a branch or part of the tree whether the hazardous part only can reasonably be treated by removal, and the remainder of the tree retained;
(iv) if the Potential CPD Tree is classified as a Potential CPD Tree – Protection Assured or Circle Tree (as defined in JSOP 08.03) (Potential CPD Tree – Protection Assured), protection measures including those identified in sub-paragraph (ii) above will be applied, while it is safe to do so, in an attempt to prevent fire from impacting the tree.
(C) After the perimeter of the planned burn area is secured and no break away fire is expected:
(i) the protection measures for Potential CPD Trees – Protection Assured will continue to be carried out and, while those protection measures remain effective, those trees will not be removed; and
(ii) a Qualified Tree Assessor will re-assess tree hazards within, or within one tree length of the edge of, the section of the fuel break that was used as a control line for the planned burn and, for any tree identified as a CPD Tree, the Qualified Tree Assessor will consider:
(1) whether an exclusion zone will be sufficient to manage risk as an alternative to removal; and
(2) if the tree hazard relates to only a branch or part of the tree whether the hazardous part only can reasonably be treated by removal, and the remainder of the tree retained.
3. Every 20 business days from the date of this undertaking, the respondent will provide to the applicant a report containing the following information in relation to each HBT removed under paragraph 2(b)(i) or 2(c) above:
(a) the GPS coordinates of the HBT that was removed;
(b) a map showing the location of the HBT that was removed; and
(c) the following information, in the form recorded by the Secretary (or employees, officers, agents or contractors on behalf of the Secretary), about the HBT that was removed:
(i)hazard marking;
(ii) comments;
(iii)tree species;
(iv)diameter at breast height;
(v) treatment date;
(vi) for HBTs removed under paragraph 2(b)(i), burn status (eg, pre-burn, post-burn);
(vii) hazard description;
(viii) observed habitat value.
4.Each report described in paragraph 3 above will include information about each HBT removed in the period from the last date covered by the previous report, up to about 48 hours before the date of the report (the Reporting Period).
5.If the respondent believes that, during the Reporting Period for a report described in paragraph 3 above, it may have removed trees under paragraph 2(a) or 2(b)(ii) above that may have been HBTs or RTs, the respondent will include with the report:
(a) the location of the emergency or planned burn;
(b)the start date of the emergency response operations or planned burn; and
(c) any further information of the type listed in paragraph 3(c) above about the trees that have been removed, to the extent that information is recorded by the Secretary at the date of the report.
6. For the avoidance of doubt, the respondent’s undertaking: (1) does not extend to works associated with the maintenance of fuel breaks which do not involve the removal of HBTs or RTs; and (2) does not permit the removal of HBTs or RTs in the course of renewal works of the kind described in paragraph 5D of the Amended Defence.
Fuel Breaks excluded from Paragraph 2(c) of the Respondent's Undertaking
| Asset ID | Fuel Break Name | Break Type | District |
| GIP-LAT-SFB-09 | SFB - Binns - Binns Road | Strategic Fuel Break - Landscape | LATROBE |
| GIP-LAT-SFB-12 | SFB - Walhalla Road Fuelbreak | Strategic Fuel Break - Landscape | LATROBE |
| GIP-MAC-SFB-08 | SFB - Mt Selma Road Fuelbreak | Strategic Fuel Break - Landscape | LATROBE |
| GIP-LAT-SFB-06 | SFB - Aberfeldy - Thomson Jordan Divide Tk | Associated Road | LATROBE |
| PP-YRA-SFB-07 | SFB - Healesville - Road 1 | Strategic Fuel Break - Landscape | YARRA |
| HR-MUR-SFB-04 | SFB - Big River SF - Gum Top Strategic Fuel Break | Associated Road | MURRINDINDI |
| GIP-MAC-SFB-08 | SFB - Mt Selma Road Fuelbreak | Associated Road | LATROBE |
| GIP-LAT-SFB-09 | SFB - Binns - Binns Road | Associated Road | LATROBE |
| PP-YRA-SFB-10 | SFB - Castella - Glenwood Drive | Strategic Fuel Break - Asset Protection | YARRA |
| PP-YRA-SFB-09 | SFB - Cambarville - Road 1 | Associated Road | YARRA |
| PP-YRA-SFB-03 | SFB - McMahons Creek - Observation Road | Strategic Fuel Break - Landscape | YARRA |
| PP-MET-SFB-01 | SFB - Belgrave - Coles Ridge Track | Strategic Fuel Break - Landscape | METROPOLITAN |
| HR-MUR-SFB-02 | SFB - Eildon - Dray Track Break | Strategic Fuel Break - Landscape | MURRINDINDI |
| PP-MET-SFB-14 | SFB - Tremont - Arbor Track | Strategic Fuel Break - Asset Protection | METROPOLITAN |
| GIP-LAT-SFB-05 | SFB - Aberfeldy - Casper Creek Track | Strategic Fuel Break - Landscape | LATROBE |
| HR-MUR-SFB-01 | SFB - Big River SF - Frenchmans Spur Extension Break | Strategic Fuel Break - Landscape | MURRINDINDI |
| GIP-LAT-SFB-12 | SFB - Walhalla Road Fuelbreak | Associated Road | LATROBE |
| PP-MET-SFB-11 | SFB - Olinda Range Road | Strategic Fuel Break - Asset Protection | METROPOLITAN |
| HR-MUR-SFB-04 | SFB - Big River SF - Gum Top Strategic Fuel Break | Strategic Fuel Break - Landscape | MURRINDINDI |
| PP-YRA-SFB-01 | SFB - Chum Creek - Road 11 | Strategic Fuel Break - Asset Protection | YARRA |
| GIP-LAT-SFB-06 | SFB - Aberfeldy - Thomson Jordan Divide Tk | Strategic Fuel Break - Landscape | LATROBE |
| PP-YRA-SFB-04 | SFB - McMahons Creek - Road 1-Observation Road Link | Strategic Fuel Break - Landscape | YARRA |
| PP-YRA-SFB-09 | SFB - Cambarville - Road 1 | Strategic Fuel Break - Landscape | YARRA |
| PP-MET-SFB-02 | SFB - Bundoora - Wanbanna Track | Strategic Fuel Break - Asset Protection | METROPOLITAN |
| PP-MET-SFB-12 | SFB - Selby - Nation Road | Strategic Fuel Break - Asset Protection | METROPOLITAN |
| PP-YRA-SFB-05 | SFB - Powelltown - Powelltown-Noojee Road | Strategic Fuel Break - Asset Protection | YARRA |
| PP-YRA-SFB-06 | SFB - Cambarville - Warburton-Woods Point Road | Strategic Fuel Break - Landscape | YARRA |
| PP-YRA-SFB-08 | SFB - Reefton - Warburton-Woods Point Road | Strategic Fuel Break - Landscape | YARRA |
| PP-YRA-SFB-02 | SFB - Fernshaw - Road 8 | Strategic Fuel Break - Landscape | YARRA |
| HR-MUR-SFB-03 | SFB - Murrindindi - Black Range Road Break | Strategic Fuel Break - Landscape | MURRINDINDI |
| HR-MUR-SFB-02 | SFB - Eildon - Dray Track Break | Associated Road | MURRINDINDI |
| PP-MET-SFB-13 | SFB - Silvan - Board Track | Strategic Fuel Break - Landscape | METROPOLITAN |
| PP-YRA-SFB-12 | SFB Reefton - Road 31 | Strategic Fuel Break - Landscape | YARRA |
| GIP-LAT-SFB-07 | SFB - Aberfeldy - Voilet Town Spur Track | Strategic Fuel Break - Landscape | LATROBE |
| MW Boundary Track | McMahons Creek Boundary Track | Other - Landscape | PORT PHILLIP |
| GP-LTB-OFB-32 | Loch Valley Forty Mile Break | Other - Landscape | LATROBE |
| PP-YRA-OFB-12 | Cambarville - Road 7 | Other - Landscape | YARRA |
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)HORAN J:
This is my ruling on an interlocutory application filed by the Secretary to the Department of Energy, Environment and Climate Action on 17 December 2024 seeking an order that the Secretary be released from an undertaking given on 18 October 2024 on the condition that it give an amended form of undertaking. To the extent necessary, this ruling will also deal with the amended interlocutory application by the applicant, Warburton Environment Inc, which was attached to its submissions dated 30 January 2025, in so far as it seeks orders for an interlocutory injunction against the Secretary in the place of the current undertaking.
BACKGROUND
This proceeding was commenced by an originating application filed on 28 May 2024. By way of final relief in the proceeding, Warburton seeks an injunction under s 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) restraining the Secretary from destroying or removing hollow-bearing trees (HBTs) and recruitment trees (RTs) located in the Central Highlands, in the habitat areas of two listed threatened species, the Southern Greater Glider and Leadbeater’s Possum.
In response to an application by Warburton for interlocutory relief, the Secretary relevantly provided an undertaking dated 18 October 2024 (the current undertaking), by which it undertook not to remove HBTs or RTs within or within one tree length of strategic fuel breaks (SFBs) located in the Central Highlands except in specified circumstances. The exceptions in the current undertaking include the removal of trees where necessary to respond to emergencies within the meaning of the Emergency Management Act 2013 (Vic), or (subject to conditions) to ensure that the SFB can be safely used by firefighting personnel as a control line for planned burns.
The applicable conditions on the latter exception set out processes that must be followed before tree removal, depending on the stage or phase of the planned burn. Prior to ignition of the planned burn and after the planned burn area is secured, the processes involve an assessment of tree hazards by a qualified tree assessor (QTA) and consideration of various alternatives to removal. During the planned burn (that is, while active fire is present in the landscape and before the planned burn area is secured), tree removal is permitted where a QTA considers it necessary to maintain a safe working environment. In those circumstances, there is no separate risk assessment process or consideration of alternatives to removal.
Late last year, a difference of view emerged between Warburton and the Secretary as to the scope of the current undertaking when read in the light of the amended pleadings. The dispute concerns the meaning to be given to “Strategic Fuel Breaks” and, in particular, whether and how the current undertaking applies to land that meets the description set out in paragraph 4 of the Further Amended Statement of Claim dated 21 October 2024 (FASOC), but that is not included in the Department’s “SFB network” in accordance with the applicable specification and maintenance standards contained in the “Strategic Fuel Break Construction and Maintenance” guideline (the SFB Guideline).
Warburton contends that the undertaking applies to all fuel breaks with the features set out in paragraph 4 of the FASOC, whether or not they are listed within the SFB network maintained by the Department.
The Secretary, on the other hand, had understood the current undertaking to apply to the specified SFBs recorded in Departmental systems which meet the applicable standards and have been assigned an “Asset ID”, such as those previously listed in Annexure 4 of Warburton’s Amended Statement of Claim dated 18 June 2024 (ASOC). Such an understanding was informed by the terms of an earlier interlocutory application that was made by Warburton and a previous undertaking that was given by the Secretary in the context of that earlier interlocutory application on 9 September 2024 (the previous undertaking), each of which had referred to the SFBs listed in Annexure 4 to the ASOC. In addition to those listed SFBs, the previous undertaking also covered several further SFBs that the Secretary intended to use as control lines for planned burns in the period prior to the conclusion of the proceedings. All of the listed SFBs that were covered by the previous undertaking had been given Asset IDs and either formed part of the Department’s SFB network or were in the process of being added to the SFB network. However, since the previous undertaking was given, Warburton had filed its FASOC, which narrowed the scope of its claims in some respects (by reducing the geographical area and removing one listed species) but also removed the list of SFBs previously contained in Annexure 4 to the ASOC, leaving only the general description of the features of “Strategic Fuel Breaks” in paragraph 4 of the pleading.
To address the issues arising from this difference of views about the scope of the undertaking, the Secretary now seeks orders for it to be released from the current undertaking on the condition that it give an amended form of undertaking that includes an additional exemption in respect of fuel breaks other than those listed in an Annexure to its proposed undertaking. The Annexure lists 37 fuel breaks in the Central Highlands that are either within the Department’s SFB network, or are planned to be brought within that SFB network.
When it was first listed for hearing, Warburton opposed the Secretary’s interlocutory application for release from the current undertaking. On 20 December 2024, the Secretary gave an interim undertaking until the hearing and determination of this application.
The parties’ current positions
The Secretary proposes an undertaking in substantially the same form as the interim undertaking, save for the omission of certain reporting requirements.
The Secretary’s proposed undertaking contains an additional exemption in proposed paragraph (c) dealing with fuel breaks other than those listed in the Annexure. Under the Secretary’s proposed additional exemption, HBTs or RTs within or within one tree length of those other fuel breaks can only be removed if a QTA has identified the tree as a Clear and Present Danger Tree (CPD Tree), and has decided that the safety risk presented by the tree cannot reasonably be reduced to an acceptable level by either an exclusion zone or the removal of only the hazardous part of the tree.
The Secretary’s proposed undertaking otherwise maintains the position under the current undertaking in respect of the specified SFBs listed in the Annexure. That is, the undertaking precludes any removal of HBTs or RTs in those SFBs, subject to exceptions for emergencies or for the safe use of control lines in planned burns.
The Secretary’s proposed undertaking also adds wording that states expressly that the undertaking does not permit the removal of any HBTs or RTs in the course of “renewal works”, which are works that are carried out in order to bring a fuel break up to the standards set out in the SFB Guideline so that it can be assigned an Asset ID and recorded in the SFB Layer. In contrast to maintenance works, renewal works involve the systematic identification, assessment and treatment of tree hazards.
Warburton opposes the Secretary’s release from its current undertaking unless the Secretary gives a new undertaking that is in terms acceptable to the applicant. Warburton does not accept the Secretary’s proposed undertaking. Instead, Warburton proposes a different form of undertaking under which additional requirements would be imposed on the Secretary. Alternatively, Warburton applies for an interlocutory injunction containing those additional requirements. Warburton does not object to the addition of an exception for works involving tree removal in other fuel breaks, but seeks to impose some additional requirements both in that exemption and more generally.
The five key features of Warburton’s proposed undertaking or injunction include:
(1)First, the inclusion of a proposed definition of fuel break that is drawn from the SFB Guideline addressed in the affidavit of Mr Hardman affirmed 17 December 2024. This is not opposed by the Secretary.
(2)Second, Warburton proposes an additional requirement to give written notice of fuel break maintenance operations as soon as practicable after they have been scheduled. Warburton seeks the inclusion of this additional requirement both in the existing exception in respect of the safe use of control lines in the delivery of planned burns, and in the new exception in respect of fuel breaks other than the identified strategic fuel breaks.
(3)Third, Warburton proposes that the processes applicable under the current undertaking in respect of the safe use of control lines prior to the ignition of a planned burn and after the planned burn area is secured should be extended to apply to “non-emergency situations” after the ignition of the planned burn but before the planned burn area is secured or, in other words, in circumstances where active fire may still be present in the landscape. The more abridged requirement for the active phase of a planned burn, requiring only that a QTA consider that the tree removal is necessary to maintain a safe working environment, would be confined to “emergency situations”.
(4)Fourth, in the exception for maintenance works other than renewal works in other fuel breaks, Warburton has proposed an additional requirement that the QTA must conduct a risk assessment to determine whether a CPD Tree can be retained at an acceptable level of risk.
(5)Finally, Warburton has proposed an additional requirement setting out detailed reporting requirements after the removal of any HBT or RT. This includes GPS co-ordinates and map location, a written report from the QTA providing reasons for the classification and assessment decisions, and photographs of the tree (including any relevant parts of the tree or features of its surroundings). For removal of any HBT or RT in an emergency situation or during a planned burn, the written notice would be required to set out the nature of the emergency and the number and location of the trees that were removed.
In relation to these interlocutory applications, the Secretary reads and relies on the following affidavits:
(a)the affidavits of Christopher Hardman affirmed on 14 August 2024, 17 December 2024, 19 December 2024 and 3 February 2025;
(b)the affidavit of Ian Harris affirmed 17 December 2024; and
(c)the affidavit of Kelly Crosthwaite dated 14 January 2025.
Warburton relies on the following affidavits:
(a)the affidavits of Jamie King affirmed 28 May 2024, 9 December 2024, 19 December 2024, 21 January 2025, 4 February 2025, 5 February 2025 and 7 February 2025; and
(b)the expert reports of Robert Conroy and Cameron Ryder which are exhibited to the King affidavits.
While I have done my best to peruse all of this voluminous material, I have relied on the parties to draw my attention to the particular aspects of the evidence that are pertinent to the present applications, in the course of their extensive written and oral submissions.
CONSIDERATION
The principles governing the Secretary’s application were not in dispute. The Court has power to release a party from an undertaking where it is in the interests of justice to do so, notwithstanding that the other party does not consent to such a release (albeit that the absence of such consent is relevant to the exercise of the discretion): see Adam P Brown Male Fashions Pty Ltdv Philip Morris Inc (1981) 148 CLR 170 at 177–178 (Gibbs CJ, Aickin, Wilson and Brennan JJ); Commonwealth Bank of Australia v The Law Debenture Trust Corporation plc (No 4) [2018] WASC 165 at [84]–[86], [125] (Pritchard J); HJ v Independent Broad-Based Anti-Corruption Commission (2021) 64 VR 270 at [83]–[89] (Beach, Kyrou and Kaye JJA) (HJ v IBAC); Lin v Lin (No 4) [2024] VSC 759 at [29]–[31] (Moore J).
In general, where a party seeks to be released from an undertaking (including an undertaking given in lieu of an interlocutory injunction), the onus lies on that party to establish that the continued enforcement of the undertaking would be unjust. This may result from new facts (including newly discovered facts), a change in circumstances, or an operative mistake at the time that the undertaking was given. However, the power to release a party from an undertaking is not limited to those particular categories. As the Victorian Court of Appeal stated in HJ v IBAC at [88], “[t]here is no exhaustive list of qualifying circumstances that may engage the principle”. In particular, the power to release a party from an undertaking may be exercised in circumstances where “its enforcement would be unjust because, in its practical application, a genuine dispute has arisen as to the scope of the undertaking”: HJ v IBAC at [88]. This is because “[i]t is in the interests of justice for genuine doubts as to the scope of an undertaking to be removed so that its terms are clear and there is certainty about what conduct would constitute a breach”: see HJ v IBAC at [88].
Strictly speaking, the Court’s power does not extend to the variation of an undertaking given by a party: see Lin v Lin at [31] (Moore J), referring to Birch v Birch [2017] 1 WLR 2959 at [5] (Lord Wilson JSC). But the Court can make an order that partially discharges or releases the party from its obligations under the undertaking (see HJ v IBAC at [83]) or that releases the party from the undertaking on condition that the party gives a new undertaking in different terms. In that way, although the exercise of the Court’s power “may result in something which looks like a variation of an undertaking, it is the product of a different process of reasoning”: see Birch at [5].
In my view, the circumstances in the present case can be regarded as involving a genuine dispute between the parties about the scope of the Secretary’s current undertaking, namely, whether and how the undertaking applies to fuel breaks other than the SFBs in the Central Highlands region that were previously identified by the parties, and which either met or were in the course of meeting Departmental standards for inclusion in its SFB network. It can be said that there is a genuine doubt about the meaning or effect of the current undertaking. Further, the Secretary has adduced evidence of its understanding when the undertaking was given that the reference to “strategic fuel breaks” did not extend to all fuel breaks in the Central Highlands, but only those that had been spatially recorded and mapped in the Department’s SFB Layer or were subject to planned renewal works for inclusion in the SFB network. Thus, this is not a case where the Secretary is seeking to vary its undertaking “simply because the party has changed its mind or compliance has caused inconvenience”: see HJ v IBAC at [89]. Accordingly, the power to release the Secretary from its undertaking is enlivened.
The terms of the new undertaking offered by the Secretary are relevant to whether or not it is in the interests of justice to release the Secretary from the current undertaking. Alternatively, the Court can consider whether any concerns can be addressed by the imposition of an interlocutory injunction in terms which differ from the Secretary’s proposed undertaking. Similarly, in so far as Warburton objects to the terms of the Secretary’s proposed undertaking and instead seeks new or additional requirements with which the Secretary disagrees, any such additional requirements may be pressed by way of an application for an interlocutory injunction governed by the usual considerations, including the balance of convenience.
In circumstances where the current undertaking was given in lieu of an interlocutory injunction, there has not previously been any judicial determination as to whether there is a serious question to be tried and whether the balance of convenience favours the grant of interlocutory relief in the form of the current undertaking, let alone any amended form of that undertaking. Nevertheless, the current undertaking was offered by the Secretary with the agreement of Warburton, who treated the undertaking as resolving its further amended interlocutory application for injunctive relief filed on 28 August 2024. In such circumstances, the current undertaking, given on 18 October 2024, may be taken to represent an accepted starting point for the determination of any dispute over the interlocutory regime.
The central question for determination concerns what, if any, changes should now be made to that interlocutory regime to address its potential application to fuel breaks other than those recorded by the Department as current or future SFBs in accordance with the standards set out in the SFB Guideline. In general terms, the differences between the listed SFBs and other fuel breaks that are not part of the SFB network include that the latter are generally narrower in width (6 to 10 metres wide, as opposed to 20 to 40 metres wide). Some of the other fuel breaks comprise existing roads and tracks which function as fuel breaks, and potentially other cleared recreational areas such as picnic sites and camping grounds. In contrast to the SFB Layer, the Department’s internal databases in relation to such other fuel breaks are not updated as regularly, and are not as accurate, consolidated or complete.
The broad issues raised by the terms of any new undertaking or injunction include:
(1)whether any new or varied requirements raise or address safety risks connected with the works which are permitted or prevented by the undertaking or injunction;
(2)whether compliance with any new or varied requirements would be practicable;
(3)whether and how any new or varied requirements relate to the subject matter of the proceeding and are directed to the preservation of that subject matter until the hearing and determination of the proceeding; and
(4)whether and to what extent any new or varied requirements seek to revisit or re-litigate matters that were addressed in the current undertaking, particularly in its application to the SFBs which form part of the Department’s SFB network.
In respect of this last point, Warburton argued that, once the Secretary is released from the current undertaking, the “slate has been wiped clean” such that it is open to Warburton to seek the imposition of restraints in different terms. Accordingly, to the extent that Warburton’s proposed undertaking or injunction revisits or re-litigates matters dealt with in the current undertaking, Warburton submitted that it is not required to establish circumstances which justify the variation of that undertaking. Rather, Warburton relies on expert reports from Mr Conroy in support of a contention that “the Secretary does not have an appropriate decision-making process in place that would result in HBTs and RTs only being removed as a last resort”. On that basis, Warburton complains about an avoidance of transparency, which permits the Department to “avoid immediately reforming the deeply flawed decision-making processes” which have led to the “needless destruction” of HBTs, and submits that its proposed modifications or additions to the Secretary’s proposed undertaking will “[require] the Secretary to implement a demonstrably responsible HBT removal policy”.
In my view, in circumstances where the Secretary is seeking only the partial discharge or variation of the current undertaking, it is not appropriate to treat the release of that undertaking as reopening the interlocutory regime in every respect. For the reasons given above, the current undertaking should be taken as a starting point for an assessment of any variations to the interlocutory regime which is sought by either party.
Further, the interlocutory orders are not primarily directed at reforming the decision-making processes of the Department, and the interlocutory applications currently before the Court are not a suitable vehicle to address contested questions about the suitability or effectiveness of the Department’s processes in relation to the identification, assessment and potential removal of HBTs. Such matters may be explored more fully at trial. The interlocutory regime is concerned with the preservation or protection of the subject matter of the proceeding until its hearing and determination. Given the geographical area covered by the relief sort and the wide variety of activities in issue, an absolute ban on the removal of any HBTs or RTs in the relevant area would be unlikely to satisfy the balance of convenience. Accordingly, it is common ground that any interlocutory restraint must be qualified by appropriate exceptions. Nevertheless, Warburton submitted that the additional requirements that it seeks are necessary to reduce the number of HBTs or RTs that are destroyed or removed while the proceeding is on foot without placing any unreasonable burden on the Secretary.
The additional requirements
As mentioned above, the Secretary proposes that the current undertaking should be modified by adding an exception in relation to tree removal carried out in the course of maintenance works (other than renewal works) in fuel breaks other than the SFBs listed in the Annexure. The additional exception is qualified by a requirement that the tree must be identified as a CPD Tree by a QTA, who must decide that the safety risk presented by the tree cannot be reduced to an acceptable level by either an exclusion zone or the removal of only the hazardous part of the tree. Such an assessment of CPD Trees by a QTA already forms part of the Department’s standard practice.
Warburton’s proposed undertaking or injunction adopts this exception, save that it adds a requirement that the Secretary give written notice of the maintenance works and expressly requires the QTA to determine whether the CPD Tree can be retained at an acceptable level of risk after having assessed that risk “using a risk assessment system”. I will address those proposed additional requirements below.
Subject to the question of whether the additional requirements proposed by Warburton should be included, I consider that both the interests of justice and the balance of convenience favour the inclusion of an exception for maintenance works in other fuel breaks. Such an exception clarifies the operation of the undertaking in relation to such fuel breaks, and enables those fuel breaks to be maintained while providing a measure of protection to any HBTs or RTs in the period until the hearing and determination of the proceeding. The Secretary has led evidence that, without such an exception, the application of the current undertaking may give rise to potential safety risks to firefighters, Departmental personnel and members of the public by preventing the removal of CPD Trees when there is no other alternative to reduce the safety risk. In terms of the impact of this additional exception on the subject matter of the proceeding, it is estimated that the number of HBTs or RTs that are identified as CPD Trees in the course of maintenance works in other fuel breaks during the period of the undertaking is likely to be “in the tens”.
The Secretary’s proposed undertaking otherwise maintains the position under the current undertaking in relation to the SFBs that are listed in the Annexure to the undertaking. In those SFBs, the removal of HBTs or RTs is restricted to works necessary for emergencies or, provided that specified processes are followed, to ensure the safe use of control lines in the delivery of planned burns.
I now turn to consider each of the additional requirements that have been proposed by Warburton.
Written notice
Warburton submitted that a requirement to give written notice of fuel break maintenance operations is necessary to enable it to arrange for the inspection of the relevant areas before the potential removal of any HBT or RT.
The Secretary submitted that the inclusion of a notice requirement in relation to the existing exception dealing with the safe use of control lines in planned burns was an attempt to revisit or relitigate aspects of the current undertaking in a manner that is not responsive to the Secretary’s interlocutory application. More generally, the Secretary submitted that such a notice requirement is not concerned with the preservation of the subject matter of the proceeding as it does not itself prevent the removal or destruction of HBTs or RTs.
In some circumstances, a notice requirement might be capable of being regarded as incidental to the protection of the subject matter of a proceeding, in so far as it operates as a condition on the taking of actions that would adversely affect that subject matter. For instance, the notice requirement might enable a party to take steps to apply for specific injunctive relief in relation to the proposed action or, possibly, to facilitate the preservation of evidence in the proceeding.
In the present case, the applicant’s proposed notice requirement applies to any maintenance operations in relation to a fuel break, irrespective of whether or not any HBTs or RTs are present in the vicinity and whether or not any such HBTs or RTs are likely to be identified as hazardous and subject to removal or treatment. I do not consider that such a broad notice requirement can be justified in the circumstances, nor that it would significantly add to the protections afforded under the Secretary’s proposed undertaking.
Further, in so far as Warburton seeks to introduce this notice requirement into the existing exception for the safe use of control lines, I do not consider that the evidence justifies any departure from the position that has previously been agreed between the parties.
Expanded processes for non-emergency situations during the active phase of planned burns
Warburton submitted that the decision-making processes that apply prior to ignition of a planned burn and after the planned burn area is secured should also apply during a planned burn while there is active fire in the landscape, other than in “emergency situations” which preclude those decision-making processes. In Warburton’s submission, there is no reason to suspend consideration of the available alternatives to tree removal in non-emergency situations just because a planned burn is in progress. Warburton relied on an expert report of Mr Conroy dated 20 January 2025, who considers that the removal of hazardous trees is a dangerous activity that itself presents safety risks, and therefore should not be taken without proper consideration and justification. It may be noted that this report primarily addresses the topic of reporting requirements rather than the processes relating to the identification of CPD Trees and the assessment of safety risks.
The Secretary again submitted that this proposed variation to the current undertaking is not responsive to the Secretary’s application and revisits matters that were previously settled between the parties. The Secretary relies on the evidence of Mr Hardman, the Chief Fire Officer, to the effect that it is impracticable to observe the relevant processes during a planned burn because any decision to remove a tree hazard in such circumstances is required to be made quickly as soon as the need arises. This evidence is not addressed in Mr Conroy’s reports, nor is it met by any other evidence relied on by Warburton on the interlocutory application.
In my view, the evidence does not justify a variation of the current undertaking to distinguish between emergency and non-emergency situations during a planned burn. The undertaking will continue to prevent the removal of any HBTs or RTs in such circumstances, unless a QTA considers that the removal of the tree is necessary to maintain a safe working environment. However, an extension of the processes that apply prior to ignition and after the planned burn area is secured is unlikely to be practicable during the active phase of a planned burn. Further, the proposed distinction between emergency and non-emergency situations in the context of this requirement would produce uncertainty in its application, without further definition and guidance to the firefighters and personnel who would be required to apply and observe the requirement.
Risk assessment for maintenance works in other fuel breaks
In the newly introduced exception for maintenance works (other than renewal works) in other fuel breaks, Warburton has proposed an additional requirement that the QTA must have conducted a risk assessment to determine whether the CPD Tree can be retained at an acceptable level of risk. Warburton relies on an expert report of a consulting arborist, Mr Cameron Ryder, dated 14 January 2025, who explains the use of various tree risk assessment systems and states that any manager of a large tree population should employ a risk-based system to provide objectivity and transparency and to permit internal audit and review of practises.
The terms of the additional requirement that were ultimately pressed by Warburton do not specify or prescribe any particular “risk assessment system” that must be used by the QTA when assessing the risk presented by a CPD Tree. Given the generality in which the proposed requirement is expressed, it is difficult to see what it adds to the terms of the undertaking proposed by the Secretary, under which the QTA is required to consider whether alternatives to the removal of any CPD Tree are reasonably capable of reducing the safety risk presented by that tree to an acceptable level.
The Chief Fire Officer, Mr Hardman, has given evidence that the Department already implements a risk assessment system in managing tree hazards, referring to the Department’s Joint Standard Operating Procedure titled “Tree Hazard – Fire”, which is in practice followed by personnel involved in the construction and maintenance of SFBs, as well as in the course of all fuel break maintenance works. Accordingly, there is already a risk assessment system in place for the removal of CPD Trees in the maintenance of fuel breaks. The terms of the exception proposed by the Secretary specifically require a risk assessment to be carried out by the QTA before the removal of any CPD Tree that is a HBT or RT. In those circumstances, I am not persuaded that the inclusion of the additional requirement proposed by Warburton is either necessary or appropriate.
Reporting requirements
Warburton seeks the inclusion of detailed reporting requirements in relation to the removal of HBTs or RTs pursuant to the exceptions contained in the undertaking. Except in emergencies falling within the exception in paragraph (a), the Secretary would be required to provide to Warburton, within 7 days of the removal of the tree or where relevant within 7 days after the planned burn is secured, a written notice setting out the GPS coordinates of the tree, the location of the fuel break and the general location of the tree within the fuel break, a report from the QTA setting out the reasons why the risk could not be managed other than by the removal of the tree, and photographs taken from a safe distance of the hazardous parts of the tree and any features that made it impossible to retain the tree. In the case of emergencies, the written notice would be required to set out, at a minimum, the nature of the emergency and the number and location of any HBTs and RTs that were removed.
Warburton submits that the reporting requirements provide a measure of transparency in relation to the decision-making process that culminate in the destruction of HBTs or RTs, without imposing any substantial administrative burden or exposing departmental personnel to any increased risks. Warburton relies on the expert report of Mr Conroy dated 20 January 2025, who considers that the proposed reporting measures are practical and reasonable and would not significantly delay decisions to remove hazardous trees. In relation to the conduct of planned burns, Mr Conroy states that such reporting measures are already part of the process of planned burn implementation, and are consistent with the safety of personnel and the containment of a planned burn. In relation to photographs, Mr Conroy considers that various fire authorities now actively encourage the use of smartphones to map and report information, and that the provision of photographs to a centralised control point is both practical and appropriate. Mr Conroy does not consider that the reporting measures would impose a significant administrative burden on QTAs, and suggests that the process could be streamlined through the use of automated reporting templates and checklists.
The Secretary submits that the reporting requirements are not responsive to the Secretary’s interlocutory application, nor do they arise from any matters contained in the report from Mr Conroy dated 6 December 2024. The reporting requirements would not only qualify the additional exception in paragraph (c) of the Secretary’s proposed undertaking relating to the maintenance of other fuel breaks, but would also apply in relation to the existing exceptions in the current undertaking. To that extent, the Secretary submitted that these requirements would reopen matters that were settled by the current undertaking. The Secretary also submitted that the proposed reporting requirements go beyond current departmental practices, and would require the creation of new reports and photographs solely for the purpose of their provision to Warburton. It is submitted that such requirements, which apply after the removal of HBTs or RTs, do not serve the purpose of the undertaking to preserve or protect the subject matter of the proceeding. Further, the Secretary submitted that the reporting requirements are neither practicable nor consistent with safety, relying on evidence given by the Chief Fire Officer, Mr Hardman, and the Deputy Secretary of the Bushfire & Forest Services Group, Ms Kelly Crosthwaite. The implementation of such requirements would impact on training and the provision of equipment to employees, and would have occupational, health and safety implications.
It is correct that the reporting requirements will not themselves restrict the circumstances in which HBTs and RTs may be removed by the Secretary in accordance with the undertaking. Nevertheless, the imposition of conditions requiring reports in relation to activities carried out pursuant to the undertaking may be regarded as incidental to the substantive requirements imposed by the undertaking. Such reporting may assist in monitoring the operation of the undertaking, and provide some measure of transparency and accountability.
However, in the light of the evidence given by Mr Hardman and Ms Crosthwaite, I am hesitant in imposing overly prescriptive requirements which might not sit comfortably with the performance by staff of their relevant duties in accordance with applicable policies and procedures. To the extent that records are created in relation to the removal of any HBTs or RTs, the information in those records can be used to provide reports to Warburton at appropriate intervals. This happens to be the approach adopted in the interim undertaking given by the Secretary pending the determination of the present interlocutory applications. Although that interim undertaking was given without prejudice to the parties’ respective positions on the hearing of these interlocutory applications, it nevertheless serves to indicate the kind of reporting that is both practicable for the Secretary and of some utility to Warburton.
The interim undertaking contemplates the provision by the Secretary of regular reports setting out information that has been recorded by the Secretary in relation to HBTs that have been removed in situations other than those covered by paragraphs (a) or (b)(ii) of the current undertaking (which respectively relate to emergencies and the active phase of planned burns). The information to be included in those reports includes GPS co-ordinates and map locations, along with various details about the tree, the hazard description, the habitat value, and so on. In oral submissions, counsel for the Secretary did not submit that this regime was incapable of being continued, although he maintained the general objection about reopening matters that have been settled by the current undertaking. If such a reporting requirement were to be continued, however, the Secretary sought to increase the reporting interval from 10 to 20 business days.
In my view, the continuation of the reporting requirements under the interim undertaking is appropriate, with an extension of the reporting interval as suggested by the Secretary. Further, in relation to any situations within paragraphs (a) or (b)(ii) of the current undertaking in which the Secretary is aware that any HBTs or RTs have been removed, the report should also include information to that effect. The reporting requirements will qualify the additional exception sought by the Secretary’s proposed undertaking, as well as the application of the existing exceptions to a wider range of fuel breaks than was initially understood by the Secretary. In so far as the reporting requirements also apply to activities that are currently permitted under the undertaking given on 18 October 2024, the uniform application of those requirements is appropriate as a condition of releasing the Secretary from that undertaking and accepting a new undertaking in its place.
CONCLUSION
For the reasons given above, I consider that the application and continued enforcement of the Secretary’s current undertaking in relation to all fuel breaks in the Central Highlands would be unjust.
I consider that it is in the interests of justice to release the Secretary from the current undertaking on the condition that the Secretary gives a new undertaking in the terms proposed by the Secretary, but with the inclusion of a definition of “fuel break” and the addition of reporting requirements along the lines of the interim undertaking with a variation to the frequency of the reports and the inclusion of information known to the Secretary about any HBTs or RTs that are removed during an emergency or a planned burn.
Otherwise, the balance of convenience does not favour the grant of an interlocutory injunction to impose the additional requirements sought by Warburton pending the hearing and determination of the proceeding.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. Associate:
Dated: 18 February 2025
0
4
2