Warburton Environment Inc v VicForests

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

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.
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.

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.
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 long weekend in Victoria. WE filed its proceeding that morning and sought a hearing on an urgent basis, its application supported by five affidavits.[2] VicForests appeared at the hearing to oppose the application having managed to file one affidavit in response.[3] At this early stage, plainly, the court is only able to scrutinise the evidence at a somewhat general level.
[2]Affidavits of Jake McKenzie sworn 4 June 2020; Nicole Fox sworn 4 June 2020; John McMullan sworn 5 June 2020; Paul Colcheedas sworn 4 June 2020; and Alice Harding sworn 4 June 2020.
[3]Affidavit of Marika Hubble-Mariot affirmed 5 June 2020.
In considering whether to grant an interim or interlocutory injunction the court generally addresses itself to two main enquiries:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.[4]
[4]Australian Broadcasting Tribunal v O'Neill (2006) 227 CLR 57 [65].
The second of those two enquiries, the balance of convenience, has been explained by the Victorian Court of appeal in this way:
… the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[5]
[5]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 [35].
Is there a serious question to be tried?

VicForests must comply with the Code of Practice for Timber Production 2014 which in turn incorporates the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2014 (‘the Standards’).[6]
[6]The obligation is imposed by s 46 of the Sustainable Forests (Timber) Act 2004 Vic.

In a document published on its website,[7] VicForests says that Pat’s Corner coupe consists of 27.5 hectares of forest, of which, only 10.7 hectares is marked for harvesting.[8] VicForests says it engaged in a consultation process with community and key stakeholders beginning in 2016 before commencing harvesting operations in the coupe in April 2020. According to its document, in its planning for the harvesting activity VicForests has given attention to the protection of waterways, the impact on flora and fauna and the impact upon visual amenity.
[7]Exhibit M1 to the Hubble-Mariot affidavit.
[8]The area marked within the green lines in Key Plans, Figure 1 below.

Geebungs

Relevant to the complaints that WE makes in respect of protecting the Geebungs, the Standards provide that VicForests must -

Apply management actions for rare and threatened flora identified within areas affected by timber harvesting operations as outlined in Appendix 3 Table 14 (Rare or threatened flora prescriptions) (cl 4.3.1.1).

Table 14 provides that the management action for the Geebung is to -

Protect mature individuals from disturbance where possible.

WE produced evidence (albeit, evidence that may be contestable as to whether it is admissible opinion evidence) that at least one mature Geebung has been knocked down within the coupe and that another 15 exist in the same location. That location is in the very south-west corner of the area to be harvested within the coupe, shown on a plan produced by Jake McKenzie using a GPS device.[9]
[9]The location depicted in Key Plans, Figures 3 and 4 below.

There is no dispute that VicForests must protect mature Geebungs ‘where possible’. VicForests says that its planning and methods are designed to do so. It submits that the court ought not to be persuaded that WE’s evidence establishes either that a Geebung has been knocked down or that there are others within the coupe. In any event, VicForests emphasises that the relevant provision in the Standards does not amount to an absolute prohibition against disturbing Geebung trees, and that proof of a single incident in relation to a tree does not necessarily prove a contravention of the Standards.

VicForests’ ‘context map’ and ‘HCV map’[10] record the existence of only one Geebung in the coupe, and that tree is outside the area designated for harvesting. They show many such trees to the west of the coupe. The maps chiefly note the existence of the yellow-bellied glider as threatened species within the coupe.
[10]Both found in exhibit M2 to the Hubble-Mariot affidavit.

Although WE’s evidence may be of contestable quality, so far as it goes it tends to demonstrate the potential for future contraventions of the Standards with respect to Geebung trees in the small area at the south-west corner of the coupe identified by Mr McKenzie as containing the 16 Geebungs (including, I assume, the one that was uprooted). WE witnesses made observations on 3 May 2020 and again on 4 June 2020 and record the uprooting of only one Geebung. That may suggest that none of the other 15 Geebungs in that small area have been knocked down (as of 4 June). If that is the case, it is possible that the contractors are aware of the other Geebungs, notwithstanding that they have not been marked on VicForests’ plans, and have avoided disturbing them. Alternatively, it may mean that those other trees remain at risk for the very reason that they have not been identified and harvesting has not yet concluded in that area.
VicForests did not produce evidence on this topic although, as explained, until Friday it had understood WE’s complaint was limited to a buffer zone issue and, of course, the application has been brought on at very short notice. In due course further evidence may shed additional light on the relative strength of this allegation.
I conclude there is a serious question to be tried whether a contravention of the Standards has taken place. I also consider there may be an ongoing risk (of a non-trivial degree) with respect to around 15 Geebungs (if, in fact, that is what they are) within the small area in the south-west corner of the coupe.
Burns Rd buffer

Relevant to the complaints that WE makes in respect of the buffer from Burns Rd, the Standards provide that VicForests must -

Screen timber harvesting operations (except selective harvesting operations) and new road alignments from view. Use a minimum 20m vegetation buffer with particular emphasis on the sensitive landscape features listed in Appendix 5 the Planning Standards. (cl 5.3.1.5).

It can be seen from the Operations Map[11] that the western boundary of the harvested area is planned to run right to the edge of Burns Rd, a road running north-south through the coupe. Further, Mr McKenzie’s plan of the area that has been harvested as of 4 June 2020 (‘harvested area boundary plan’),[12] and photographic evidence, shows that harvesting is actually being carried out immediately adjacent to Burns Rd at certain points.
[11]Key Plans, Figure 1 below.
[12]Key Plans, Figure 2 below.

VicForests does not contest this issue as a matter of fact. But the issue in dispute is whether such harvesting would contravene cl 5.3.1.5 of the Standards if there is no 20m vegetation buffer retained from the ‘view’ one would have from Burns Rd. The issue here is one of interpretation of what the clause means. WE says that ‘screen timber harvesting operations … from view’ effectively means from any vantage point a person could gain, such as from any vehicle track within the forest. VicForests argues that, properly construed, it only requires screening from views of significant scenic value. WE calls in aid a passage at para [1270] in the reasons for judgment of Mortimer J in the recently published decision, Friends of Leadbeater’s Possum Inc v VicForests (No 4).[13] Whether or not that passage forecloses argument in the circumstances of this case may be debated, but it is certainly a factor to be considered in weighing the existence or strength of any question to be tried on this point.
[13][2020] FCA 704.

I consider there is a serious question be tried whether a contravention of the Standards has taken place on this issue. Consistently with its interpretation of the relevant clause in the Standards, VicForests’ plan suggests it will continue to harvest right to the Burns Rd boundary and not retain a 20m vegetative screen between the road and the harvested area. If WE’s interpretation of the Standards is correct, that conduct would amount to the continuation of a breach of a mandatory provision.
Tourist walking track buffer
Relevant to the complaints that WE makes in respect of the buffer from the tourist walking track, the Standards provide that VicForests must-
Exclude timber harvesting operations within 40m of developed recreation facilities not included in the FMZ scheme’ (cl 5.6.1.1).
Here, there is no dispute about the meaning of the provision or its application to the coupe and its surrounding features. As depicted on the Operations Plan and the harvested area boundary plan,[14] there is a walking track labelled ‘Walking Into History Track’ that runs roughly north/south just to the west of the coupe. There is no dispute (at least for these purposes) that the walking track is a ‘developed recreational facility’ within the meaning of cl 5.6.1.1.of the Standards. WE asserts that both plans demonstrate that the harvested area comes closer than 40m to the walking track at some points. VicForests denies that assertion and says the evidence is too imprecise for the court to draw that conclusion. It points to VicForests’ acknowledgment of its obligation to keep that buffer as seen in the entries at p13 of its Forest Operations Coupe Plan which note the existence of the track (called there the ‘Upper Yarra Walking Track’) and demonstrate an intention to keep a 40m buffer from it by employing a ‘GPS, compass, hip chain and/or range finder.’
[14]Key Plans, Figures 1 and 2 respectively.
I have examined WE’s evidence. To conclude that the clause has been breached, as WE asks the court to do, one needs to measure from plans of uncertain reliability, and translate that measurement to an ‘on the ground’ measurement. Doing the best I can, there may be a single point along the track that comes within about 30m of the harvested area, otherwise the requirement appears to have been properly observed. On that evidence, I am not persuaded there is a serious question to be tried as to an existing contravention of cl 5.6.1.1 of the Standards or, in that respect, as to any intention by VicForests to contravene the Standards going forward.
Where does the balance of convenience lie?
WE argues that the threatened conduct of VicForests with respect to the Geebungs and the Burns Rd buffer risks potential irreparable harm of real significance to the Victorian community. Loss of the Geebungs, it argues, would represent a loss of forest that is at least 80 years old, and the failure to leave the 20m buffer from view from Burns Rd would leave an ‘eyesore for generations’ for those travelling along that road. I accept that each of these matters amount to matters of genuine public concern which need to be weighed in the balance.
I mention at this point that no objection was taken to the standing of WE to bring this proceeding, at least for the purpose of the application for the interim injunction. So, in considering any ‘injustice to the plaintiff’ I am considering the potential impact on the public’s interest, for which WE is seeking to advocate, in the conservation of species and the visual amenity within a particular segment of State forest.
VicForests relied upon the evidence of its solicitor, Ms Hubble-Mariot, who said at [24] – [26] of her affidavit:
I am advised by [General Counsel for VicForests] and I verily believe that this is the last coupe scheduled for the relevant Contractor for this financial year (noting a financial year equates to a production year).
If the Defendant is restrained from harvesting in this coupe, the Contractor would need to be stood down and the Defendant will be unable to move the Contractor to another coupe. There are fourteen (14) production days remaining for operations in this coupe. The stand down costs would be 14 days x Stand down rate of $6,000 per day = $84,000.
The Defendant will suffer further loss in terms of the lost revenue from the timber not harvested. It is difficult to quantify this quickly, but it is estimated that around 75% of the harvestable coupe area remains to be harvested.
VicForests submits that the prima facie case on each of the two matters is weak so that, having regard to the interests of the community in State revenues and expenses and the efficient management of its forests, a very clear injustice to the plaintiff is required before an injunction would be granted.[15]
[15]Bridgetown/Greenbushes Friends of the Forest Inc Executive Dirctor of Conservation and Land Management (1997) 18 WAR 102, recently cited in WOTCH v VicForests (No 3) [2020] VSC 220 (McMillan J) [37].
WE has proffered the usual undertaking as to damages in the event that its claim for relief ultimately fails.
Conclusion
The appropriate course to take, in my view, is not to restrain timber harvesting in the coupe entirely, as WE seeks. Rather, until fuller consideration can be given to the claimed risks on the hearing of an interlocutory application, VicForests should only be restrained from harvesting timber in certain parts of the coupe in order to preserve the two features which I have found are arguably at risk from contravening conduct. Aside from those specific restraints, harvesting of timber within the coupe may continue. In my opinion, on the evidence presented at this juncture such a course strikes the appropriate balance between the twin community interests in the protection of the environment, on the one hand, and the efficient management and commercialisation of its natural resources, on the other, in their particular application to this coupe.
Accordingly, upon WE giving the usual undertaking as to damages, except to remove timber already harvested VicForests is to be restrained until further order from harvesting timber in the coupe -

(a) within 20m of Burns Road; and

(b) in the rectangular area bordered by GPS coordinates 391070 and 39115 (North/South) and 5816430 and 5816550 (East/West) — for the avoidance of doubt, those coordinates are intended to describe the area that encloses the 16 Tree Geebung trees identified in exhibit JRM–1 to the affidavit of Jake McKenzie.[16]

[16]As depicted in Key Plans, Figures 3 and 4 below.

To be clear, I order no restraint in respect of harvesting proximate to the ‘Walk Into History Track’. As I have said, the evidence suggests VicForests is conscious of its obligation not to harvest within 40m of that track and the evidence as to any breach of that obligation is currently unconvincing. I do not consider any order is warranted on that issue at this time.

[PAGES BELOW – KEY PLANS, FIGURES 1, 2, 3 and 4].

KEY PLANS
Figure 1

Figure 2

Figure 3

Figure 4

[2020] VSC 337

9 June 2020