Warburton Environment Inc v VicForests

[2020] VSC 337

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

S ECI 2020 002461

WARBURTON ENVIRONMENT INC (ABN 28 781 873 830)	Plaintiff
v
VICFORESTS	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2020
DATE OF RULING:	9 June 2020
CASE MAY BE CITED AS:	Warburton Environment Inc v VicForests
MEDIUM NEUTRAL CITATION:	[2020] VSC 337

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ENVIRONMENT AND PLANNING – Whether State forest management enterprise breached forest management standards for the conservation of tree species and preservation of visual amenity – Whether defendant failed and will continue to fail to protect Tree Geebung trees where practicable – Whether defendant failed and will continue to fail to maintain vegetation buffers between harvested areas and specified land features or viewing points - s 46 Sustainable Forests (Timber) Act2004 (Vic) – Code of Practice for Timber Production 2014­ - Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2014.

EQUITY – Interim injunction – Whether serious question to be tried that defendant had breached specific provisions in statutory forest management standards – Balance of convenience – Balance between competing public interests in environmental conservation, and efficient forest management and commercial exploitation.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Korman	McMullan Solicitors
For the Defendant	Ms F J Hudgson	Russell Kennedy

HIS HONOUR:

Introduction

1. VicForests is a State owned business established under the State Owned Enterprises Act1992 (Vic), responsible for harvesting, selling and regrowing timber from Victoria’s State Forests on behalf of the State Government. It is currently in the process of harvesting timber from a 27.5 hectare forest area near Warburton known as Pat’s Corner coupe, which is designated for management and harvesting.[1]

   [1]Pat’s Corner coupe is depicted in Key Plans, Figure 1 below.

2. Warburton Environment Inc (‘WE’), a not-for-profit corporation established to support the protection and restoration of eco-systems in the Central Highlands of Victoria, alleges that VicForests has:

(a)   uprooted a mature Tree Geebung tree (‘Geebung’);

(b)  logged closer than 40m to a tourist track on the east of the coupe; and

(c)   logged closer than 20m from Burns Road to the west of the coupe.

Each of those actions, WE claims, amounts to a breach of the statutory instruments with which VicForests must comply.

1. Having sought but not obtained an undertaking from VicForests, WE commenced a proceeding by writ by which, ultimately, it seeks a permanent injunction against timber harvesting operations within the coupe, or alternatively an injunction until VicForests can establish that the danger identified by WE no longer exists. Claiming that, unless restrained, VicForests will continue to breach those statutory instruments before trial, WE seeks an interim injunction to restrain VicForests from continuing its timber harvesting operations within Pat’s Corner Coupe, except to remove any existing harvested timber.

2. The question at this stage is whether an interim injunction should be granted.  I heard two hours of argument on Friday afternoon, 5 June 2020, immediately before a public-holiday…