Warburton Environment Inc v VicForests (No 5)

[2022] VSC 633

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 02461

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

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATES OF HEARING:	21-24 February, 3 March, 14 July and 8 September 2022
DATE OF JUDGMENT:	25 October 2022
CASE MAY BE CITED AS:	Warburton Environment Inc v VicForests (No 5)
MEDIUM NEUTRAL CITATION:	[2022] VSC 633

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ENVIRONMENTAL LAW – Timber harvesting within State forests in Central Highlands region – Central Highlands Regional Forest Agreement – Tree Geebung – Endangered species – Code principles – Protection of long-lived understorey species – Protection of individual trees with a DBHOB of at least 10 cm from disturbance where reasonably practicable – Precautionary principle – Conduct of timber harvesting and regeneration burning – Bushfire Management Manual – Statutory construction – Relief – Injunctions – Standing – Conservation, Forests and Lands Act 1987 (Vic) ss 31, 39; Sustainable Forests (Timber) Act 2004 (Vic) ss 1, 5, 12A, 13-16, 37–38, 41, 43–46; Flora and Fauna Guarantee Act 1988 (Vic) ss 3(1), 4(a)–(e), 4A(b)–(f); State Owned Enterprises Act 1992 (Vic) ss 14, 17; Code of Practice for Timber Production 2014 (as amended 2022) cls 1.2.2, 1.2.8, 1.2.10, 1.3, 2.2.2, 2.2.2.2, 2.2.2.10; Schedule 1: Management Standards and Procedures for timber harvesting operations in Victoria’s State forests cls 1.2, 4.2.1.1, 4.2.1.3; VicForests v Kinglake Friends of the Forest Inc (2021) 248 LGERA 28.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Korman with Dr K Weston-Scheuber	Oakwood Legal
For the Defendant	Mr E Nekvapil with Ms M Narayan	Johnson Winter & Slattery

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Tree Geebung..................................................................................................................................... 2

Central Highlands Regional Forest Agreement........................................................................... 2

Relevant legislation and subordinate instruments..................................................................... 4

Conservation, Forests and Lands Act 1987 (Vic)........................................................................... 4

Sustainable Forests (Timber) Act 2004 (Vic).................................................................................. 4

FFG Act........................................................................................................................................... 9

Legislation establishing VicForests.......................................................................................... 11

Allocation orders......................................................................................................................... 11

The Code and Standards................................................................................................................. 12

The Code....................................................................................................................................... 12

The Standards.............................................................................................................................. 20

Precursors to the Code..................................................................................................................... 21

VicForests’ Special Management Plan......................................................................................... 22

Bushfire Management Manual...................................................................................................... 31

Interlocutory injunctions................................................................................................................ 32

The issues.......................................................................................................................................... 35

Evidence............................................................................................................................................. 36

Mr Mueck’s evidence...................................................................................................................... 37

First report filed 4 August 2020................................................................................................ 37

Description of Tree Geebung........................................................................................... 37

Disturbance of Tree Geebung.......................................................................................... 38

Search requirements.......................................................................................................... 39

Targeted surveys............................................................................................................... 40

Protection of Tree Geebung............................................................................................. 40

Setbacks............................................................................................................................... 41

Second report filed 18 September 2020.................................................................................... 42

Risk management.............................................................................................................. 42

Buffer configuration.......................................................................................................... 42

Third report filed 20 October 2021............................................................................................ 43

Mature Tree Geebung....................................................................................................... 43

Juveniles.............................................................................................................................. 43

Fourth report filed 21 October 2021......................................................................................... 43

Fifth report filed 24 December 2021......................................................................................... 44

Survival and persistence................................................................................................... 45

Observations as to the 2021 SMP..................................................................................... 46

Tree Geebung habitat........................................................................................................ 48

Efficacy of the 2021 SMP................................................................................................... 49

Oral evidence............................................................................................................................... 49

Climate change................................................................................................................... 51

Professor Feller’s evidence............................................................................................................. 52

First report filed 20 October 2021.............................................................................................. 52

Risks of regeneration burns............................................................................................. 52

Advance planning............................................................................................................. 53

Planning and conduct of regeneration burns................................................................ 53

Second report filed 24 December 2021..................................................................................... 54

Oral evidence............................................................................................................................... 54

Mr Gunn’s evidence........................................................................................................................ 56

Affidavits filed 30 November 2021 and 21 February 2022.................................................... 56

Oral evidence............................................................................................................................... 57

Effect of 2022 amendments to the 2021 SMP........................................................................... 58

Mr Organ’s evidence....................................................................................................................... 60

Expert report filed 1 December 2021........................................................................................ 60

Oral evidence............................................................................................................................... 63

Joint experts’ report dated 14 February 2022.......................................................................... 63

Introduction........................................................................................................................ 63

Tree Geebung population................................................................................................. 63

Transect separation for surveys....................................................................................... 64

Total surface area to measure the availability of State forest for timber harvesting 65

Protection of Tree Geebung as part of timber harvesting operations across State forests.................................................................................................................................. 65

Auditing and compliance................................................................................................. 67

Protection targets for Tree Geebung............................................................................... 67

Summary of ecological expert evidence......................................................................... 67

Mr Brown’s evidence....................................................................................................................... 68

Lay evidence...................................................................................................................................... 70

Affidavits of Paul Colcheedas................................................................................................... 70

Affidavits of Jake McKenzie...................................................................................................... 71

Affidavits of Wilmars Mikelsons.............................................................................................. 71

Affidavit of Alice Hardinge....................................................................................................... 71

Standing............................................................................................................................................. 71

The seminal case: Australian Conservation Foundation Inc v Commonwealth........................ 74

The decision in Kinglake............................................................................................................. 74

VicForests’ submissions............................................................................................................. 77

Analysis........................................................................................................................................ 77

Conclusion as to standing.......................................................................................................... 79

Construction of subordinate instruments................................................................................... 79

The use of words in their ordinary and natural meaning........................................................ 83

The relevant provisions of the Code and Standards.............................................................. 84

Clause 2.2.2.10.............................................................................................................................. 85

Clause 2.2.2.4................................................................................................................................ 87

Management Action................................................................................................................... 88

Precautionary principle................................................................................................................... 92

Brown Mountain decision............................................................................................................ 93

Underlying notions........................................................................................................... 97

Warburton’s submissions.......................................................................................................... 99

Is there a threat of serious or irreversible damage to the environment by reason of the proposed timber harvesting operations?....................................................................................... 100

Is the threat attended by a substantial lack of scientific certainty?................................... 103

Adaptive management and proportionality......................................................................... 106

Summary of recent harvesting outcomes.................................................................................. 107

Conclusion as to VicForests’ past harvesting........................................................................... 113

How are mature Tree Geebungs to be protected from disturbance?................................... 114

Targeted surveys....................................................................................................................... 115

Buffers......................................................................................................................................... 117

Firebreaks................................................................................................................................... 119

Issues not before the Court.......................................................................................................... 120

The SMP........................................................................................................................................... 121

Surveys....................................................................................................................................... 122

Retention..................................................................................................................................... 123

Buffers......................................................................................................................................... 126

Regeneration burns and firebreaks........................................................................................ 127

Tree Geebungs within available harvest areas under VicForests’ SMP and excluded under proposed injunctions....................................................................................................... 129

Conclusion.................................................................................................................................. 129

Remedies.......................................................................................................................................... 130

Final orders and costs.................................................................................................................... 132

SCHEDULE A................................................................................................................................. 133

HIS HONOUR:

Introduction

1. Warburton Environment Inc (ABN 28 781 873 830) (‘Warburton’) seeks injunctions and declarations against VicForests to enforce the environmental protections relating to Tree Geebung (Persoonia arborea) set out in the Code of Practice for Timber Production 2014 (as amended 2022) (‘Code’) and in Schedule 1: Management Standards and Procedures for timber harvesting operations in Victoria’s State forests (‘Standards’). The Standards form part of the Code.[1]

   [1]Code cl 1.2.4

1. The Code and Standards took their present form by an amendment in June 2022.  The prior version of the Code was the Code of Practice for Timber Production 2014 (as amended November 2021) (‘2021 Code’). The 2021 Code incorporated the prior version of the Standards (‘2021 Standards’).[2]

   [2]2021 Code cl 1.2.8.

1. The Code and the Standards, including their predecessor versions, are the primary instruments for regulating timber harvesting in Victoria’s State forests. VicForests is required by law to comply with the Code and the Standards.[3]

   [3]Sustainable Forests (Timber) Act 2004 (Vic) s 46(a); Code cl 1.2.8.

1. Warburton contends that in the past VicForests has not complied with the predecessors of the Code and Standards when harvesting timber in the Central Highlands of Victoria, and that it will not in the future comply with the Code and Standards in relation to Tree Geebung unless injunctions or declarations are granted.

1. On 19 November 2021, VicForests approved an amended Special Management Plan for Tree Geebung (‘2021 SMP’).  On 18 July 2022, VicForests approved a further version of the Special Management Plan for Tree Geebung (‘SMP’). It contends that compliance with the SMP is sufficient to satisfy the relevant requirements of the Code and the Standards.

1. The principal issues in the case are whether compliance with the SMP by VicForests is sufficient to meet the requirements of the Code and Standards, and, if it is not, what relief (if any) should be granted by the Court.

1. Since it was issued in June 2020, this proceeding has been heavily contested coupe by coupe.  Prior to the commencement of the trial, there had been about 40 interlocutory orders made, and 18 interlocutory judgments or rulings given.[4]

   [4]These include a judgment of the Court of Appeal: Warburton Environment Inc v VicForests [2021] VSCA 194.

Tree Geebung

1. The Tree Geebung is a large shrub or small tree growing to about 10m in height.  It is a long lived component of the Wet Forest understorey.  Tree Geebung individuals require about 100 to 150 years to mature and be capable of any significant contribution to the soil seed bank.  Plants estimated to be 250 years old have been found to produce large quantities of seed.

1. Tree Geebung are endemic to Victoria and are found only in the Central Highlands.  The habitat of the Tree Geebung is typically moist with high cover in net gullies and streamsides.  The species is threatened by fire, forestry operations, regeneration burning and rodents, resulting in seed bank depletion.

1. The Tree Geebung is listed as ‘Endangered’ under the Flora and Fauna Guarantee Act 1988 (Vic) (‘FFG Act’) threatened species list. The listing as ‘Endangered’ reflects past estimated declines due to habitat loss, and future projected declines attributed to elevated bushfire frequencies below the tolerable fire interval as a result of climate change, and the high level of endemism and restricted range of the Tree Geebung.

Central Highlands Regional Forest Agreement

1. In 1998, Victoria and the Commonwealth entered into the Central Highlands Regional Forest Agreement (‘RFA’).  The RFA established the broad framework for the management of the forests of the Central Highlands.  While much of the RFA is not intended to create legally binding relations,[5] I will mention some of its provisions.

   [5]RFA cl 16; see also Bob Brown Foundation v Commonwealth (2021) 283 FCR 225, 228.

1. In cl 39 of the RFA, the parties agreed that ecologically sustainable forest management was an objective which required a long term commitment to continuous improvement.  Achieving the objective involved, among other things:

(a)        providing for the long term stability of timber and forestry products industries;

(b)       an integrated and strategic forest management system that actively generates and is capable of responding to new information; and

(c)        ensuring that harvested areas of native forest on public land are successfully regenerated, maintaining the natural floristic composition.

1. Under cl 40A, the parties recognised that the Victorian forest management system is designed to produce effective outcomes for fauna and flora, and provides a sound basis for implementation and continual improvement to achieve ecologically sustainable forest management.

1. Under cl 41B(a), the parties recognised that the forest management system was enhanced by adaptive management and continuing mechanisms to monitor, report and evaluate the sustainability of forest management policies and practices.

1. Under cl 25G, Victoria agreed to ensure that the components of its forest management system that relate to listed species and communities would, among other things:

(a)        provide for their conservation and recovery;

(b)       be based on the best available science;

(c)        provide for the active management of native forests in order to build their resilience and diversity; and

(d)       take into account public comment.

Relevant legislation and subordinate instruments

Conservation, Forests and Lands Act 1987 (Vic)

1. The Conservation, Forests and Lands Act 1987 (Vic) (‘CFL Act’) provides for the approval by the Minister of Codes of Practice.[6]

   [6]The expression ‘Code of Practice’ is defined in s 3 of the CFL Act to mean ‘a Code of Practice under Part 5 as amended and in force for the time being’.

1. Part 5 of the CFL Act contains the relevant provisions. Section 31 provides:

(1)The Minister, in accordance with this Part, may make Codes of Practice which specify standards and procedures for the carrying out of any of the objects or purposes of a relevant law.

(2)A Code of Practice may apply, adopt or incorporate any matter contained in any document, standard, rule, specification or method, formulated, issued, prescribed or published by any person whether—

(a)       wholly or partially or as amended by the Code of Practice; or

(b)as formulated, issued, prescribed or published at the time the Code of Practice is made or at any time before then.

1. Section 39 deals with compliance with Codes of Practice, and provides:

Compliance with a Code of Practice is not required unless the Code of Practice is incorporated in or adopted by—

(a)       a relevant law; or

(b)a condition specified in an authority given under a relevant law.

Sustainable Forests (Timber) Act 2004 (Vic)

1. Timber harvesting is conducted by VicForests under the Sustainable Forests (Timber) Act 2004 (Vic) (‘Act’).

1. The main purposes of the Act are found in s 1, and relevantly include:

(a)to provide a framework for sustainable forest management and sustainable timber harvesting in State forests;

(ab)to provide for the granting of long-term access to timber resources in State forests; and

(ac)to foster investment in, and returns from, timber resources in State forests …

1. Section 5 of the Act sets out the principles of ecologically sustainable development. It provides as follows:

(1)In undertaking sustainable forest management in accordance with this Act, regard is to be had to the principles of ecologically sustainable development set out in this section.

(2)Ecologically sustainable development is development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.

(3)       The objectives of ecologically sustainable development are—

(a)to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations;

(b)       to provide for equity within and between generations;

(c)to protect biological diversity and maintain essential ecological processes and life-support systems.

(4)The following are to be considered as guiding principles of ecologically sustainable development—

(a)that decision making processes should effectively integrate both long-term and short-term economic, environmental, social and equity considerations;

(b)if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c)the need to consider the global dimension of environmental impacts of actions and policies;

(d)the need to develop a strong, growing and diversified economy which can enhance the capacity for environment protection;

(e)the need to maintain and enhance international competitiveness in an environmentally sound manner;

(f)the need to adopt cost effective and flexible policy instruments such as improved valuation, pricing and incentive mechanisms;

(g)the need to facilitate community involvement in decisions and actions on issues that affect the community.

1. Part 3 of the Act sets out the process by which State forest timber resources are allocated to VicForests.

1. Section 12A confirms that timber resources are Crown property, and provides:

(1)       All timber resources in State forest are the property of the Crown.

(2)       Property in timber resources only passes from the Crown—

(a) to VicForests in accordance with section 14(1); or

(b)       otherwise in accordance with this Act.

1. Section 13 provides for the Minister to make allocation orders:

The Minister, by order published in the Government Gazette, may—

(a)allocate timber in State forests to VicForests for the purposes of harvesting and selling, or harvesting or selling, timber resources; and

(b)permit VicForests to undertake associated management activities in relation to that allocated timber including—

(i)        preparation of sites for timber harvesting;

(ii)       construction of access roads to coupes;

(iii)      site rehabilitation;

(iv)     forest regeneration;

(v)      any other activities specified in the order.

1. Section 14 vests property in allocated timber in VicForests, and provides:

(1)On the publication of an order under section 13, property in the timber allocated by the order is vested in VicForests.

(2)VicForests may only harvest and sell, or harvest or sell, vested timber resources in accordance with the order.

(3)Subject to this Act and to the allocation order, VicForests is entitled to retain the revenue received from harvesting and selling, or harvesting or selling, vested timber resources.

1. Section 15 deals with the contents of an allocation order, and provides:

(1)       An allocation order must include—

(a)       in relation to the timber resources allocated—

(i)a description of the forest stands to which the order applies;

(ii)references to, or details of, the extent and location of the forest stands to which the order applies;

(iii)a description of the total area available for harvest in each forest stand;

(b)a list of the activities (if any) additional to those referred to in section 13(b) that VicForests is permitted to undertake in the areas to which the order applies.

(2)An allocation order may include any condition, limitation, matter or specification that the Minister thinks fit.

(3)Without limiting subsection (2), an allocation order may include a condition, limitation, matter or specification as to the area that may be harvested during a period specified in the order.

(4)Without limiting subsection (2), an allocation order may include the following in relation to the preparation of a plan under section 37, or the changing of a timber release plan under section 43—

(a)a specification as to the persons or bodies with whom or with which VicForests must consult in relation to timber harvesting operations proposed in any coupes specified in a plan;

(b)a condition as to the manner in which that consultation must occur.

(5)A specification or condition referred to in subsection (4) that relates to the changing of a timber release plan under section 43, may differ according to the kind of change proposed to be made to the plan.

1. Section 16 deals with VicForests’ functions under an allocation order, and provides:

On the making of an allocation order, VicForests must carry out its functions in accordance with that order, in so far as those functions relate to timber resources or the area to which the order applies.

1. Part 5 of the Act deals with the management of timber resources by VicForests.

1. Section 37 requires VicForests to prepare a plan in respect of an area of timber resources allocated to it, and is in these terms:

(1)VicForests must prepare a plan in respect of an area to which an allocation order applies for the purposes of—

(a)harvesting and selling, or harvesting or selling, timber resources; and

(b)undertaking associated management activities in relation to those timber resources.

(2)In preparing a plan under this section, VicForests must comply with any condition relating to consultation that is specified in the allocation order to which the plan relates.

(3)VicForests must ensure that a plan prepared under this section is consistent with—

(a)the allocation order to which the plan relates, including any condition, limitation, matter or specification in the order; and

(b)       any relevant Code of Practice relating to timber harvesting.

1. Section 38 lists the matters to be included in the plan, and provides:

(1) A plan prepared under section 37 must include—

(a)a schedule of coupes selected for timber harvesting and associated access road requirements;

(b)details of the location and approximate timing of timber harvesting in the proposed coupes;

(c)       details of the location of any associated access roads.

(2)A plan prepared under section 37 may include any other matters necessary or convenient to be included in the plan.

1. Section 41 provides for VicForests to publish notice of the plan in the Government Gazette, and to make the plan available to be viewed.

1. Under s 43 of the Act, VicForests can review and change its timber release plan at any time. Section 43 relevantly provides:

(1)       VicForests may review a timber release plan at any time.

(2)VicForests may change a timber release plan at any time if the change is not inconsistent with—

(a)the allocation order to which the plan relates, including any condition, limitation, matter or specification in the order; and

(b)       any relevant Code of Practice relating to timber harvesting.

(3)In changing a timber release plan, VicForests must comply with any condition relating to consultation that is specified in the allocation order to which the plan relates.

…

(6)If a timber release plan is changed under this section, VicForests must cause a notice of the change to the plan to be published in the Government Gazette.

(7)On publication of a notice under subsection (6), the changed timber release plan takes effect in accordance with its terms.

1. Section 44 requires VicForests to carry out its functions and powers under the Act in relation to vested timber resources, or in relation to an area to which an allocation order applies, in accordance with any timber release plan.

1. Part 6 of the Act is concerned with the management of timber harvesting.

1. Section 46 requires compliance with Codes of Practice by VicForests and its contractors, and relevantly provides:

The following persons must comply with any relevant Code of Practice relating to timber harvesting—

(a)despite anything to the contrary in section 67(1) of the [CFL Act], VicForests;

(b)a person who has entered into an agreement with VicForests for the harvesting and sale of timber resources or the harvesting or sale of timber resources …

1. Under ss 45 and 45A of the Act, VicForests may be found guilty of specified offences committed by one of its contractors.

FFG Act

1. Section 3(1) of the FFG Act defines the term ‘biodiversity’ to mean:

[T]he variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems) and includes –

(a)       diversity within species and between species; and

(b)       diversity of ecosystems;

1. Section 4 lists the objectives of the FFG Act, which include:

(a)       to guarantee that all taxa of Victoria’s flora and fauna … can persist and improve in the wild and retain their capacity to adapt to environmental change; and

(b)       to prevent taxa and communities of flora and fauna from becoming threatened and to recover threatened taxa and communities so their conservation status improves; and

(c)       to protect, conserve, restore and enhance biodiversity, including –

(i)        flora and fauna and their habitats; and

(ii)       genetic diversity; and

(iii)      ecological communities; and

(iv)      environmental processes; and

(d)      to identify and mitigate the impacts of potentially threatening processes to address the important underlying causes of biodiversity decline; and

(e)       to ensure the use of biodiversity as a natural resource is ecologically sustainable …

1. Section 4A sets out the underlying principles of the FFG Act:

It is a principle of this Act that a decision, policy, program or process gives proper consideration to the following –

…

(b)       the potential impacts of climate change;

(c)       the best practicably available information relevant to biodiversity;

(d)       the precautionary principle, such that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(e)        enabling public participation;

(f)       supporting collaboration between government, the community and partner agencies. 

Legislation establishing VicForests

1. VicForests is a body corporate and a State business corporation under Orders in Council made pursuant to ss 14 and 17 of the State Owned Enterprises Act 1992 (Vic).[7]

   [7]Victoria, Victoria Government Gazette, No S 198, 28 October 2003.

1. Section 3 of the Order in Council made under s 14 relevantly provides:

(2)The particular purpose of establishing VicForests is to create a statutory body to undertake the management and sale of timber resources in Victorian State forests on a commercial basis.

(3)       The functions of VicForests are to:

(a)undertake the sale and supply of timber resources in Victorian State forests, and related management activities, as agreed by the Treasurer and the Minister, on an commercial basis;

(b)develop and manage an open and competitive sales system for timber resources; and

(c)pursue other commercial activities as agreed by the Treasurer and the Minister.

…

(5)VicForests must operate its business or pursue its undertakings as efficiently as possible consistent with prudent commercial practice.

(6)VicForests must be commercially focused and deliver efficient, sustainable and value for money services.

(7)VicForests must operate in a framework consistent with Victorian Government policy and priorities.[8]

[8]Ibid 1.

Allocation orders

1. Allocation orders for the harvesting of timber resources by VicForests were made in 2013 and 2019.[9]  Under the 2019 order, an area of 228,000ha dominated by specified eucalyptus Ash species, and an area of 1,587,000ha of mixed species, were allocated to VicForests giving a total available area for harvesting of 1,815,000ha.

   [9]Victoria, Victoria Government Gazette, No S 343, 1 October 2013; Victoria, Victoria Government Gazette, No S 153, 24 April 2019 (‘2019 order’).

1. The five year harvest area limit imposed on VicForests for the period from 1 July 2018 to 30 June 2023 is 13,700ha for the Ash species area and 70,500ha for the mixed species area.  This gives a total of 84,200ha available for harvest over five years, or an average of 16,840ha per annum.

1. The 2019 order also imposes a harvest area limit for the five year period commencing from 1 July 2023.  This limit is the same as for the previous five year period.

1. It is a matter for VicForests to plan and select the areas and coupes to be harvested from the available area. This is done by the preparation of a timber release plan under s 37 of the Act.

1. Clause 4 of the 2019 order provides that the objectives of the order are:

(a)        to allocate specified timber in State forests to VicForests for the purposes of harvesting and selling, or harvesting or selling, timber resources;

(b)       to permit VicForests to undertake associated management activities in relation to that allocated timber;

(c)        to specify the conditions and limitations that apply under the allocation order.

1. The 2019 order requires VicForests to comply with important conditions.  They include compliance with all relevant laws and codes of practice including the Code, the Standards, and the Code of Practice for Bushfire Management on Public Land 2012.

The Code and Standards

The Code

1. In the Minister’s foreword to the Code, the Hon. Lily D’Ambrosio, Minister for Energy, Environment and Climate Change stated in part:

As Victoria heads toward 2030 and transitions away from native forest timber harvesting, it is important to ensure the regulation of the industry is clear and enforceable so the environment benefits.

Clarity and enforceability are not only important features of the Code but they enhance environmental protection outcomes by enabling the duty holder, regulator and stakeholders to focus on material priorities, rather than the architecture of the regulatory regime itself.

The Code of Practice for Timber Production 2014 (as amended 2022) … is the primary instrument for regulating timber harvesting operations in Victoria’s publicly owned State forests, private native forests and plantations.  It is pivotal to delivering environmental protection, ecologically sustainable forest management and certainty for forest-based industries, ensuring our public forests are protected for the benefit of all Victorians.

Ensuring the Code is responsive to change is an ongoing process.  Regular reviews and updates are important to ensure that the Code remains fit for purpose and reflects contemporary science …

1. The Code contains the following relevant definitions:

‘biodiversity’ has the same meaning as in the [FFG Act].

…

‘buffer’ means a protective margin of vegetation which may be applied to a feature or value, and is generally excluded from any timber harvesting operations.  Buffer width or radius is defined as the horizontal distance from which various timber harvesting operations are excluded.

…

‘mature’ means a growth stage of trees.  Mature Ash species have the following characteristics, in order of assessment priority.  Note that no single characteristic defines maturity on its own, although the first characteristic (apical dominance) holds the most significant assessment weight:

i.        Lack of clear apical dominance within the upper crown

ii.Presence of permanent shaping branches with diameters at least one third of the bole diameter at their junction with the bole (clear of collar)

iii.Shaping branches are not related either to the presence of long-term natural gaps in the canopy, or to an open grown tree position.  In the case of a natural gap, such branches often occur only on one side of the tree, and the ‘assessment weight’ given to this characteristic may need to be downgraded (i.e. the need for other indicators increases as part of the overall assessment)

iv.The shaping branches contribute significantly to lateral crown shape and may be competing with other shaping branches for tree height position, creating a rounded crown appearance (related to (i) above)

v.Apical dominance will also cease at the shaping branch level (having reached maximum length), and can induce secondary (epicormic) branch development along shaping branches, and

vi.Some branch death (dieback) and breakage is typical, but not a dominant feature.  This loss of leaf area (photosynthetic capacity) can also induce secondary (epicormic) growth to replace lost photosynthetic capacity.

vii.Diameters of early mature trees may occur between 90 to 200 cm DBHOB, with typical heights of 50 to 100 m.  Diameters of full mature trees may be expected between 150 to 300 cm, with typical heights of 60 to 100 m.  This overlap of ranges between trees in different stages indicates why diameter and height are not good indicators of growth stage.

…

‘population’ means a group (2 or more) of individuals of the same species that are demographically, genetically, or spatially distinct from other groups of individuals.

…

‘precautionary principle’ means that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, decisions by managing authorities, harvesting entities and operators must be guided by:

(i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

(ii)an assessment of the risk-weighted consequences of various options.

Note:

It is intended by this definition and section 2.2.2.2 that the precautionary principle and its application in section 2.2.2.2 be understood as it was by Osborn J in Environment East Gippsland Inc v VicForests [2010] VSC 335 (in relation to the precautionary principle as it appeared in the Code of Practice for Timber Production 2007).

…

‘rare’ in so far as it relates to biodiversity, means a group of species that are scarce, infrequently encountered, or very uncommon.

…

‘regeneration’ in relation to forestry means the renewal or re-establishment of native forest flora by natural or artificial means following disturbance such as a timber harvesting operation or fire.

...

‘stand’ means a group of trees in a forest that can be distinguished from other groups on the basis of age, species composition, condition, etc.  Usually at least 1 ha in size.

…

‘understorey’ means the layer of vegetation that grows below the canopy formed by the tallest trees in a forest.

…

1. The purpose of the Code is stated in cl 1.2.2:

The purpose of the Code is to provide direction to the managing authority, harvesting entities and operators to deliver sound environmental performance when planning for and conducting commercial timber harvesting operations in a way that:

•permits an economically viable, internationally competitive, sustainable timber industry;

•is compatible with the conservation of the wide range of environmental, social and cultural values associated with forests;

•provides for the ecologically sustainable management of timber harvesting operations in native forests within State forests until 2030 when timber harvesting operations in native forests will cease; and

•enhances public confidence in the management of timber production in Victoria’s forests and plantations.

1. The status and history of the Standards is described in cl 1.2.8 of the Code in these terms:

Historically, the Management Standards and Procedures was a separate document that was incorporated into the Code in accordance with the [CFL Act]. The Management Standards and Procedures are no longer an incorporated document to the Code and instead form part of the Code itself.

Transitional provisions – Management Standards and Procedures

As of the commencement of the amendments to the Code that inserted Schedule 1 to the Code:

Any thing (including any action, process, right or obligation) commenced but not completed, lapsed or discharged under or in reliance on a provision of the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2021 prior to the date at which the variation to the Code which inserted Schedule 1 takes effect, is taken to continue under or in reliance on the equivalent provision in Schedule 1. Any approval, authorisation, exemption or temporary variation granted or issued under the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2021 which has ongoing effect immediately prior to the date at which the variation to the Code which inserted Schedule 1 takes effect, is taken to have been granted or issued under the equivalent clause in Schedule 1 on the same terms as it was issued or granted.

1. The Code uses terminology in a structured way.  The mandatory actions required by the Code are important.  Clause 1.2.10 defines key expressions used in the Code in these terms:

The following terms are used in the Code to provide a structure for the Code’s intended outcomes and the mechanisms within the Code to achieve these.  The glossary provides further definitions.

A Code Principle is a broad outcome that expresses the intent of the Code for each aspect of sustainable forest management.

An Operational Goal states the desired outcome or goal for each of the specific areas of timber harvesting operations, to meet the Code Principles.

Mandatory Actions are actions to be conducted in order to achieve each operational goal.  The managing authority, harvesting entities and operators must undertake all relevant mandatory actions to meet the objectives of the Code.  Mandatory Actions are focussed on practices or activities.  Failure to undertake a relevant Mandatory Action would result in non-compliance with this Code.

1. Clause 1.3 of the Code contains six Code principles.  Relevantly they are:

1.Biological diversity and the ecological characteristics of native flora and fauna within forests are maintained.

2.The ecologically sustainable long-term timber harvesting capacity of forests managed for timber harvesting is maintained or enhanced.

…

6.Planning is conducted in a way that meets all legal obligations and operational requirements.

Timber production must always be planned and conducted according to knowledge developed from research and management experience so as to achieve the intent of the Code Principles.  Application of this knowledge will ensure that timber can continue to be utilised while ensuring that impacts on soil, water, biodiversity, forested landscapes, historic places and Aboriginal cultural heritage are avoided or minimised.

1. Table 1 in cl 1.3 describes the relationship between the Code Principles and the Operational Goals:

Code Principles	Operational Goals	Section
Biological diversity and ecological characteristics of native flora and fauna within forests is maintained.	Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and implementation. …	2.2.2 and 3.2.2 Conservation of Biodiversity …
…
Harvested native forest is managed to ensure that the forest is regenerated and the biodiversity of the native forest is perpetuated. The natural floristic composition and representative gene pools are maintained when regenerating native forests by using appropriate seed sources and mixes of dominant species.	2.2.2 and 3.2.2 Conservation of Biodiversity 2.6.1 and 3.5.1 Regeneration
The ecologically sustainable long-term timber production capacity of forests managed for timber harvesting operations is maintained or enhanced.	Timber harvesting operations are planned and conducted to maintain a long-term ecologically sustainable timber resource.	1.2.8 and 2.3.1 Operational Planning
Harvested native forest is managed to ensure that the forest is regenerated and the biodiversity of the native forest is perpetuated.	2.6.1 and 3.5.1 Regeneration
…
Timber harvesting operations are conducted in a manner appropriate to the site, and manages the impact on soil, water and other values, including biodiversity… Timber harvesting is conducted in a manner appropriate to the site, to manage the impact on soil, water, and other values, including biodiversity…	2.5 Timber Harvesting 3.4 and 4.5.2 Timber Harvesting
…
Planning is conducted in a way that meets all legal obligations and operational requirements.	Long-term forest management planning maintains an ecologically sustainable timber resource that mitigates the impacts on all forest values. Effective and inclusive planning processes are used for timber harvesting operations to meet the requirements of this Code.	1.2.8 and 2.3.1 Operational Planning
…

1. Clause 2.2.2 sets out operational goals for timber harvesting in State forests intended to conserve biodiversity.  They include:

Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and management.

Harvested State forest is managed to ensure that the forest is regenerated, and the biodiversity of the native forest is perpetuated.

The natural floristic composition and representative gene pools are maintained when regenerating native forests by protecting long-lived understorey species and using appropriate seed sources and mixes of dominant species.

Forest health is monitored and maintained by employing appropriate preventative, protective and remedial measures …

1. Clause 2.2.2 also specifies mandatory actions to be taken to address biodiversity conservation risks considering scientific knowledge. They include:

2.2.2.1Planning and management of timber harvesting operations must comply with relevant biodiversity conservation measures specified within the Management Standards and Procedures.

2.2.2.2The precautionary principle must be applied to the conservation of biodiversity values.  The application of the precautionary principle will be consistent with relevant monitoring and research that has improved the understanding of the effects of forest management on forest ecology and conservation values.

Note:

It is intended by the definition of the precautionary principle and section 2.2.2.2 that the precautionary principle and its application in section 2.2.2.2 be understood as it was by Osborn J in Environment East Gippsland Inc v VicForests [2010] VSC 335 (in relation to the precautionary principle as it appeared in the Code of Practice for Timber Production 2007).

2.2.2.3The advice of relevant experts and relevant research in conservation biology and flora and fauna management must be considered when planning and conducting timber harvesting operations.

2.2.2.4During planning identify biodiversity values listed in the Management Standards and Procedures prior to roading, harvesting, tending and regeneration. Address risks to these values through management actions consistent with the Management Standards and Procedures such as appropriate location of coupe infrastructure, buffers, exclusion areas, protection areas, management areas, modified harvest timing, modified silvicultural techniques or retention of specific structural attributes.

2.2.2.5Protect areas excluded from harvesting from the impacts of timber harvesting operations.

1. Clause 2.2.2 also specifies mandatory actions to be taken to perpetuate the biodiversity of harvested native forests.  They include:

2.2.2.10 Retain and protect habitat trees or habitat patches and long-lived understorey species to provide for the continuity and replacement of hollow bearing trees and existing vegetation types within each coupe.

Where Chapter 4 of the Management Standards and Procedures contains prescriptions for a particular type of habitat tree, habitat patch or long-lived understorey species that are applicable to the timber harvesting operations in a coupe and the requirements of all applicable prescriptions in Chapter 4 have been complied with, compliance with the applicable prescriptions is taken to be compliance with this clause in respect of that habitat tree, habitat patch or long-lived understorey species.

1. The second paragraph of cl 2.2.2.10 was added in 2022 and is not found in previous versions of the Code.

The Standards

1. The Standards apply to commercial timber harvesting in State forests where the Code applies.  Clause 1.2 outlines the role of the Standards in the following terms:

1.2.1.1This Schedule provides standards and procedures to instruct managing authorities, harvesting entities and operators in interpreting the requirements set out in the main body of the Code.

1.2.1.2These Management Standards and Procedures are in addition to the mandatory actions set out in the main body of the Code.

1. Clause 4 of the Standards is concerned with biodiversity. Clause 4.2 addresses fauna and flora. Under the heading of ‘Detection-based management’, cl 4.2.1 provides:

4.2.1.1Detection based management obligations apply in any area that may be affected by current or planned timber harvesting operations, and in any area in which an obligation may affect the conduct of such timber harvesting operations (for example, if a protection area would include an area within which timber harvesting operations are proposed).

…

4.2.1.3If evidence of the presence of a value listed in Table 13 Rare or threatened fauna and invertebrate prescriptions or Table 14 Rare or threatened flora prescriptions is verified, apply and undertake any associated management action specified in the Table.

1. Table 14 is headed ‘Rare or threatened flora prescriptions’.  For the Tree Geebung, the table describes the value to be protected in Central Highlands forest management areas (‘FMAs’) as the ’Individual tree’ and the ‘Management Action’ as:

Protect individual trees with a DBHOB of at least 10 cm from disturbance where reasonably practicable.

(‘Management Action’)

1. The acronym ‘DBHOB’ is defined in the Glossary of the Standards to mean diameter at breast height (1.3m) over bark.  A Tree Geebung with a trunk of this magnitude is considered to be a mature tree.

1. Prior to the 2022 amendments, Table 14 described the value to be protected for Tree Geebung in Central Highlands FMAs as the ‘Mature Individual’ and the ‘Management Action’ as: ‘[p]rotect mature individuals from disturbance where possible.’

Precursors to the Code

1. The Forest Management Plan for the Central Highlands, published by the Department of Natural Resources and Environment in May 1998 (‘1998 FMP’), was the precursor of the 2014 and 2021 versions of the Code.  The plan described ‘Tree Geebung’ as a rare species.  Under Appendix J to this plan, the management prescription for Tree Geebung was:

Protect mature specimens where possible.  Investigate methods of regeneration which maintain levels of abundance.

1. When a prior version of the Code was introduced in 2014 (‘2014 Code’), the Explanatory Memorandum stated that the 2014 Code and incorporated documents had:

•         consolidated the regulatory framework for timber harvesting operations, to make it less complex;

•         incorporated rules governing the industry that previously existed across 80 different documents; and

•         made forestry regulations clear and transparent for industry and the community, while continuing to protect forest values.

1. The Explanatory Memorandum described the purpose of the 2014 Code as:

to provide direction to timber harvesting managers, harvesting entities and operators to deliver sound environmental performance when planning for and conducting commercial timber harvesting operations in a way that:

•permits an economically viable, internationally competitive, sustainable timber industry;

•is compatible with the conservation of the wide range of environmental, social and cultural values associated with forests;

•provides for the ecologically sustainable management of native forests proposed for cyclical timber harvesting operations; and

•enhances public confidence in the management of timber production in Victoria’s forests and plantations.

VicForests’ Special Management Plan

1. This proceeding was commenced by a writ filed 5 June 2020.  On 9 June 2020, Macaulay J made an interim injunction restraining the felling or cutting of trees in the Pat’s Corner coupe in the Central Highlands.[10]  Other applications and injunctions relating to Tree Geebungs followed – first for the coupes known as Ben 10, Fireman Sam, Gaboon, Myrrh, Flagstaff, Maxibon, Frankincense, and Fishernak, and ultimately for coupes generally in the Central Highlands area.

   [10]Warburton Environment Inc v VicForests [2020] VSC 337.

1. By 9 October 2020, VicForests’ Environmental Performance Team had prepared a draft Special Management Plan for Tree Geebung. By a letter sent on Friday 9 October 2020, VicForests’ Chief Executive Officer sought urgent endorsement of the plan by the Chief Conservation Regulator within the Department of Environment, Land, Water and Planning (‘DELWP’).

1. In a letter dated 12 October 2020, the Chief Conservation Regulator responded in these terms:

I am writing in response to your letter of 9 October 2020, which provided an amended Special Management Plan … regarding the Tree Geebung (Persoonia arborea) for the Conservation Regulator’s review.

The Conservation Regulator has reviewed the amended Special Management Plan (SMP) and consider that the Conservation Regulator’s feedback contained in the letter from the Chief Conservation Regulator to the CEO of VicForests on 9 October 2020 has been adequately incorporated.

Specifically, the amended SMP:

•Stipulates that each identified mature Tree Geebung in a given coupe must be assessed to determine reasonably practicable protection, and that any decision to disturb mature Tree Geebung is to be formally documented;

•Identifies under what circumstances pre-harvest surveying for Tree Geebung will occur; and

•Revises the position that no more than 10% of any harvestable area should be excluded to protect Tree Geebung, with the identification of this 10% figure acting as a trigger for engagement with the Environmental Performance Team so as to consider what is reasonable and practicable.

It is the Conservation Regulator’s position that implementation of the SMP would comply with the regulatory requirements for Tree Geebung as contained in the Code of Practice for Timber Production 2014 and Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2014 (MSP) – in particular, the requirement to “protect mature individuals from disturbance where possible” (MSP clause 4.3.1.1 and Appendix 3, Table 14).

While I understand the pressure VicForests is under with current court cases, I do not intend to make it standard practice for the Conservation Regulator to respond to requests for review of documentation outside standard work hours or in unreasonable timeframes.  Please ensure you factor in enough time for the Regulator to review and respond to future requests.

1. On 28 April 2021, the Timber Harvesting Compliance Unit (‘THCU’) and the Office of the Conservation Regulator (‘OCR’) published Interim Position Statement No. 1 in relation to Tree Geebung.  The position statement included the following:

THCU field experience has found that the protection of individual Tree Geebung dispersed across the net harvest area of a forest coupe is not reasonably practical or proportionate, because:

•Single Tree Geebung retained in the net harvest area outside of protective buffers have frequently been observed to succumb to the effects of wind and solar radiation, become uprooted by wind, and exposed to regeneration burning.  Retaining the individual specimens in the open harvest is not effective for their short to mid-term protection/survival.

•Tree Geebung largely occupy the understorey of Wet Forest, and retaining single Tree Geebung in isolation often results in their damage and death as a result of the lawful felling of canopy trees in their vicinity.

•The creation of many islands of retained vegetation across a harvest area to protect individual Tree Geebung or applying a blanket rule of creating an exclusion or buffer is not proportionate and is inconsistent with the prescribed management action as outlined in the MSPs.

•Directing for survey effort to find each mature Tree Geebung and to effectively protect it (necessitating an exclusion area), is not proportionate given the absence of a prescription requiring surveys and exclusion.

Interim Position and Interpretation

The prescription for Tree Geebung and the associated management action do not mandate an absolute prohibition on disturbance but requires timber harvesting mangers (THMs) to avoid and minimise adverse impacts.  Mature Tree Geebung specimens are not required to be protected in each and every case to avoid injury.  Rather, there is an obligation on THMs to protect mature Tree Geebungs to the extent reasonably capable of being done in the circumstances. Relevantly, the circumstances are that the management of mature Tree Geebung is in the context of:

•the objectives of forest management (to balance values protection with timber harvesting) which include ensuring that timber harvesting takes place while environmental values are provided appropriate protection to a reasonably practicable standard; and

•the absence of a requirement to create an exclusion area or buffer or any other similarly prescriptive protection such is applied to other values that are specified by the Code and MSPs.

The THCU has made the following determinations in relation to mature Tree Geebung:

•Any live Tree Geebung with a diameter at breast height of 10cm or more is considered a mature Tree Geebung.  This determination is based upon ecological advice and field observations of specimens of this size bearing fruit.

•Planning for and implementation of protection measures is not considered proportionate or practical for isolated individuals or pairs of mature Tree Geebung that are not located in reasonable proximity (within 20m) to an exclusion area into which they could be incorporated.

THMs should have regard to the following considerations in assessing how to protect mature Tree Geebung, as the THCU has taken the position that they are practical and proportionate management actions:

•for individual mature Tree Geebung, the proximity to an exclusion area or buffer that could be extended to protect the specimen

•        for multiple mature Tree Geebung in close proximity to each other:

– the proximity to an exclusion area or buffer that could be extended to protect the specimens; or

– the establishment of an exclusion area within the net harvest area where the specimens will be protected from disturbance by timber harvesting operations, and the potential side effects of exposure to wind and solar radiation and regeneration burning are reduced.

A failure to consider the above advice, or a failure to document how the protection of mature Tree Geebung has been considered, will inform the THCU’s assessment of THMs compliance with the prescription.

The THCU also advises that it has taken the position that the prescription is not satisfied if protections that can be taken are not taken, or those that are taken do not go towards protection to a reasonable standard.

This interim position or regulatory interpretation will remain in place until such time that any changes to relevant law come into effect, or a Regulatory Guidance Note (or equivalent) is published by the Conservation Regulator.  Upon such a change to law or publication of regulatory guidance, this position shall be formally revoked by Director, Strategic Operations.

1. Following changes to the then versions of the Code and Standards in 2021, VicForests prepared the 2021 SMP.  This was amended on 18 July 2022, following approval of the current Code and Standards. The SMP includes the following background:

Tree Geebung, Persoonia arborea F.Muell (Proteacaea), is a small tree species that occurs in the wet eucalypt forests east of Melbourne.  The species is endemic to Victoria inhabiting an area of about 700 km² within the Central Highlands.  While considered rare on a statewide basis, Tree Geebung is locally abundant throughout its range.  In Viridans Biological Database, Paul Gullan states, “When a plant species exhibits such defined specificity for habitat it is often well-adapted to that habitat and is successful within it.  This is the case with Persoonia arborea.  It is one of the most common shrubs in the central highlands wet forests and responds well to disturbance.  It is often found in dense thickets along roads which have been cleared through the forest, sometimes to the exclusion of all other species.”

The extensive formal and informal reserve system provides the first level of protection for this species. About 40% of its habitat lies within the Yarra Ranges National Park, with the remaining 60% on other public land.

In May 2021 Tree Geebung was listed as Endangered under the Flora and Fauna Guarantee Act 1988 threatened species list.  This listing reflects past estimated declines attributed to habitat loss and future projected declines attributed to elevated bushfire frequencies below the tolerable fire interval as a result of climate change.  It also reflects the high level of endemism and restricted range of Tree Geebung (DELWP 2021).  In the short-term, timber harvesting and associated activities are identified as a disturbance within its range that may contribute to decline.

Tree Geebung flowers in summer/autumn with immature fruit developing over autumn/winter/spring. Mature fruit is ready for dispersal in spring/summer (French, 1992).  The species is fire sensitive and is likely to be killed if exposed to regeneration burns.  Individuals are also prone to defoliation and windthrow when left exposed.

Research is being undertaken to learn more about the ecology and population dynamics of Tree Geebung. Preliminary work (Fedrigo et al., 2019) suggests slow growth and a transient soil seed store (Sabine Kasel, University of Melbourne pers. comm.).

Recent observations by VicForests’ staff and scientists from the University of Melbourne indicate promising potential for post-timber harvesting regeneration, with significant numbers (>20) of germinants and new recruits of Tree Geebung observed across disturbed areas, including on harvested coupe landings and snig tracks. Findings from DELWP Forest Protection Survey Program flora surveys undertaken in 1990s timber harvesting areas in Noojee have also indicated that Tree Geebung has capacity to readily regenerate following timber harvesting operations. Observations are also being made in areas that have been subjected to multiple disturbances over the past 100 years, from both fire and harvesting.  These observations suggest the inferred generation length of 80 years may be high.

1. The SMP includes the following on VicForests’ guidance on the operational interpretation of requirements:

The Management Standards and Procedures for timber harvesting in Victoria’s State Forests 2021 prescription was amended in 2022 to identify maturity for a Tree Geebung specimen and to replace the words “where possible” to “where reasonably practicable”.

For the purposes of this VFSMP, VicForests’ position is that “where reasonably practicable” means ensuring that the protection of Tree Geebung is operationally practicable and will meet the objectives/intent of this VFSMP as detailed below; for example, it may not be practical or proportionate to protect all mature Tree Geebung as individuals scattered across the coupe because of risk of damage from weather, harvesting and regeneration activities.  Further, consistent with the purpose of the Code (as given in 1.2.2), “where reasonably practicable” means that protection of mature Tree Geebung must consider any impacts on other social, economic, environmental or biodiversity values and avoid forced undesirable operational approaches; for example constructing a side-cut snig track or building a new road to avoid Tree Geebung, which would otherwise be necessary, rather than using an existing footprint.  This is particularly pertinent given the propensity for Tree Geebung to grow in mechanically disturbed areas, such as old road footprints, snig tracks and landings.  In these instances, the abundance and distribution of Tree Geebung across the coupe must inform the approach taken to protecting Tree Geebung from disturbance, in context with other values requiring protection or management.  For example, if there are very few mature Tree Geebung identified elsewhere in a coupe, the priority to protect these individuals is greater and may require trade-offs with other values.

Although it is not required to protect all mature Tree Geebung from damage, each mature Tree Geebung that has been identified in a coupe must be assessed, either in field or by desktop analysis, to determine if it is reasonably practicable to protect that tree.  If identified individuals cannot be protected, the reason must be recorded in the forest coupe plan or coupe diary. 

The understanding of “where reasonably practicable” has been considered in context with the broad range of prescriptions for flora contained within the Code and MSPs.  These prescriptions vary across a range, from those that may be applied with some flexibility to those that have clear and definitive actions to implement.  To protect “where reasonably practicable” is a prescription that has inherent flexibility and as such necessarily requires an element of assessment as to its application. Such prescriptions are not absolute and do not mandatorily require the protection of every individual …

1. Under the heading ‘Management Prescriptions’, the SMP states:

DESKTOP ASSESSMENT:

During initial coupe planning, the following datasets must be interrogated to determine the likelihood of Tree Geebung presence at a coupe and inform the priority of the coupe for targeted survey:

•        Habitat Distribution Model for Tree Geebung

•        Records of Tree Geebung in the Victorian Biodiversity Atlas

•Records of Tree Geebung in VicForests Species Observation layer (which includes DELWP Forest Protection Survey Program detections)

•VicForests Species Risk Matrix

A Targeted Species Survey for mature Tree Geebung will be triggered when:

•Mature Tree Geebung records exist within the coupe, or within 500m of the coupe (unless forest type and aspect is unsuitable, if so, consult with Biodiversity team).

•The coupe overlaps with high quality habitat as mapped in the Habitat Distribution Model for Tree Geebung

PRE-HARVEST FIELD SURVEY

Sightings of mature Tree Geebung made during any field visit to coupes covered by this VFSMP must be recorded.  These field visits may include both formal and informal surveys, including:

•        Coupe Reconnaissance Transects

•        Habitat and Hollow Bearing Tree Surveys

•        Targeted Species Surveys

•        Coupe Marking.

When individual Tree Geebung are found, the following information must be recorded:

•locations of individuals or groups of individuals (both mature and immature) using GPS

•maturity information, such as size (diameter and height) and/or presence of seed and fruit (note: >10cm diameter at breast height are deemed mature)

•        number of individuals present at the GPS point.

Targeted Species Surveys for Tree Geebung are to occur on the following basis:

•Surveyors must target and confirm existing detection records in the field

•Surveys for Tree Geebung will be undertaken where a Targeted Species Survey is triggered (see above)

•Surveys will be undertaken on transects no greater than 100m apart.  All Tree Geebung observed along and between transects are to be recorded.  Each traverse must be recorded as a transect line with GPS

•Surveys may be carried out in conjunction with VicForests hollow-bearing tree pre-harvest surveys which operate on a 100m by 100m grid basis.  Surveyors are to search for Tree Geebung when traversing between hollow-bearing tree survey grid points

•Where a mature Tree Geebung is recorded, surveyors  must search beyond the planned transect, within 15m of the detection to identify other Tree Geebung close by.  This is for the purpose of determining whether the mature individual may form part of a cluster of individuals.

Note:

•Provided that a Targeted Species Survey occurs in accordance with the above specifications, it is not a precondition to harvesting that every mature individual Tree Geebung within a coupe has been identified and recorded. However, all Tree Geebung detections made within a coupe, regardless of survey method, must be recorded

MANAGING FOR TREE GEEBUNG DURING PRE-HARVEST DESKTOP COUPE PLANNING

Tree Geebung Exclusion Areas

•A “Tree Geebung Exclusion Area”, for the purposes of this VFSMP, means any area excluded from timber harvesting for the protection of Tree Geebung, identified in accordance with the below method. This includes: (a) a cluster of mature individuals; (b) an individual identified for protection otherwise than in a cluster; (c) an area generated by extending the original planned harvest boundary, or the boundary of an existing harvesting exclusion area, to protect a cluster or individual.

Clusters

•Clusters of three or more mature Tree Geebung are to be identified as part of pre-harvest desktop planning, using the following method:

○Using GIS, place a 10m radius circle over each field-verified record of a mature individual Tree Geebung.

○Where 3 or more of these circles overlap or touch, this constitutes a cluster (noting that a cluster must contain at least 3 mature trees).

○Ensure the count number for each observation record is checked. Some observation records are for multiple individuals in close proximity to each other.  If a single GPS point denotes the presence of 3 or more mature individuals, this must also be designated as a cluster. If a single GPS point denotes the presence of 2 mature individuals, and the circle placed on that point overlaps with one other circle, then this must also be designated as a cluster.

○For the avoidance of doubt, the cluster includes the area of the 10m radius circle placed over the mature Tree Geebungs included in it.

•Where a cluster is identified using the above method, the following protection measures should be applied:

○Where the cluster is within 10m of the original harvest unit boundary or other mapped timber harvesting exclusion areas, extend the boundary of the harvest unit or exclusion area to encompass the cluster.

○Otherwise, protect the area of the cluster from harvesting, unless it is not reasonably practicable to do so due to safety considerations or a conflicting prescription in the Code or the MSPs, or where mature Tree Geebung are prolific throughout the coupe, and this has been approved by the Environmental Performance team (see below).

•Where it is not considered reasonably practicable to protect a cluster, due to safety considerations or a conflicting harvesting prescription, advice must be sought from the Environmental Performance team to confirm that assessment, before a decision is made to not protect that cluster.

•Where mature Tree Geebung are prolific throughout the coupe, reasonable and practical protection of mature Tree Geebung must be considered in context with other values requiring management and protection and with regard to impacts on economic factors. In such instances, advice from the Environmental Performance team must be sought, before a decision is made to not protect any cluster.

Individuals

•For individuals (mature or immature) that are not part of an identified cluster, the following protection measures apply:

○Where an individual is within 10m of the original planned harvest unit boundary or other mapped timber harvesting exclusion areas, extend the boundary of the harvest unit or exclusion area to encompass the Tree Geebung individual. 

○Individuals that are not part of a cluster or adjacent to existing boundaries or other exclusion areas should be protected where it is reasonably practicable to do so. Particular consideration is to be given to whether the following types of individuals can be protected:

▪unique, e.g. very large (>30cm DBH), isolated individuals in accordance with processes for type 1 hollow-bearing trees;

▪isolated mature individuals to promote seed development and regeneration post-harvest;

▪isolated mature individuals in coupes where Tree Geebung occurs infrequently, by placing in a protectable exclusion area.

○The specific conditions of a coupe must be considered in assessing whether it is reasonably practicable to protect individual mature Tree Geebung, including the location and context of the individual(s) and their risk of exposure, for example from prevailing wind direction that may result in windthrow, and the practicalities of conducting regeneration activities.

○Immature individuals or stands of immature individuals do not require exclusion from timber harvesting impacts. However, where high numbers of immature individuals are observed in what would be a cluster were they mature individuals, these should be considered for protection as part of multi-value habitat patches.

•Protection of Tree Geebung should adhere to the principles of VicForests’ High Conservation Value planning and variable retention harvesting approaches.

TIMBER HARVESTING

•Trees should not be felled into or within a Tree Geebung Exclusion Area.  If this does occur, reasons must be recorded in the coupe diary (e.g. safety considerations, accident).

•Machines must not enter a Tree Geebung Exclusion Area.  If this does occur, reasons must be recorded in the coupe diary (e.g. safety considerations, accident).

•Slash and harvesting debris must not be allowed to accumulate within 3m of a Tree Geebung Exclusion Area. Mineral earth breaks are to be in place around Tree Geebung Exclusion Areas. These protect Tree Geebungs within such areas from the impacts of regeneration burning.

•Tree Geebung Exclusion Areas may be modified or impacted upon for the purposes of landing or snig track construction where it is not reasonably practicable to avoid doing so (e.g. where other available options are likely to lead to negative impacts on other Code values, cause environmental degradation or require duplication of infrastructure). In these cases, permission to impact the relevant Tree Geebung Exclusion Area must be sought in writing from the relevant Senior Forest Officer.

…

SILVICULTURE AND REGENERATION

•In coupes, or sections of coupes, containing a Tree Geebung Exclusion Area, broadcast high-intensity regeneration burns are to be avoided where reasonably practicable. Modified burning techniques, such as low intensity head and slash burns or mechanical disturbance are to be prioritised.

•Where mechanical disturbance is used for regeneration purposes, protected Tree Geebung individuals and other Tree Geebung Exclusion Areas must be clearly identified for machine operators so that impacts can be avoided.

•Seed collection is permitted within Tree Geebung Exclusion Areas.

Bushfire Management Manual

1. The ‘Bushfire Management Manual 3 – Fuel Management’ is a document produced by DELWP with input from Forest Fire Management Victoria (‘Bushfire Management Manual’). Part 3.5.1.2 is a work instruction which concerns Planned Burning Control Line Preparation Standards.[11]

   [11]Bushfire Management Manual (at 30 August 2017).

Conclusion as to VicForests’ past harvesting

1. The evidence is compelling and uncontested that the past practices of VicForests and its contractors have led to the loss of many Tree Geebungs in the harvestable areas of coupes.  While it may be that in one or more individual instances the protection of Tree Geebungs was not reasonably practicable, no attempt was made by VicForests to show that it was not reasonably practicable to protect the significant number of Tree Geebungs which have been destroyed in harvested areas through the use of bulldozers and mechanical equipment or by regeneration burning.

1. The deficiencies in past practices identified in the evidence include:

(a)        the failure to conduct targeted surveys to detect and locate mature Tree Geebungs in coupes prior to harvesting;

(b)       the failure to provide sufficient, or any, buffers to protect mature Tree Geebungs during harvesting or from the later effects of windthrow; and

(c)        the failure to protect mature Tree Geebungs from the impacts of regeneration burning in coupes following harvesting.

1. The evidence clearly demonstrates that unless these matters are addressed, Tree Geebungs will not be protected and will continue to be lost in considerable numbers during coupe harvesting and regeneration burning and by the subsequent effects of exposure and windthrow. Given the evidence as to the past harvesting and burning practices of VicForests, it is highly likely that significant numbers of mature Tree Geebungs have been lost in the Central Highlands in the past through harvesting and regeneration burning.  The precise extent of the loss will never be known, but on the basis of recent records is likely to amount to many hundreds or even thousands of mature trees.

How are mature Tree Geebungs to be protected from disturbance?

1. I am greatly assisted by the expert witnesses as to what is necessary to protect mature Tree Geebungs from disturbance where reasonably practicable, as required by the Management Action. In making this assessment, I am mindful that what must be identified is the minimum necessary to comply with the law, and to ensure that the Code and Standards are observed.

1. It is not possible to protect mature Tree Geebungs from the effects of harvesting and regeneration burning unless their existence and location within coupes is known.

Targeted surveys

1. Mr Mueck and Mr Organ both agreed that targeted surveys based on transects were effective in identifying the locations of mature Tree Geebungs as part of pre-harvest surveys.  I accept Mr Mueck’s evidence that 30m transect surveys are essential to locate and identify mature Tree Geebungs as an understorey species which frequents areas of Wet Forest in the Central Highlands.  I accept his evidence that in a Wet Forest an observer is commonly hindered in viewing the surrounds by a dense understorey of shrubs and tree ferns.  A 100m transect survey through dense understorey would be of doubtful efficacy.  A 30m transect survey would ensure that an observer would detect mature Tree Geebungs which would be at or within 15m of the observer’s path in most instances.

1. Mr Organ advocated a 100m transect distance, although he accepted that if visibility on either side of a transect was low or obscured the distance between transects should be less than 100m.  He considered that an instruction to surveyors to search beyond the transect by a further 15m if a mature Tree Geebung was identified was adequate to identify a high proportion of mature Tree Geebungs. In my view, such a process is likely to miss many mature Tree Geebungs in the thick undergrowth of Wet Forests.

1. I prefer Mr Mueck’s 30m transect distance as giving a clear, simple and effective direction as to what needs to be done to detect mature Tree Geebungs as trees in the understorey. This is the transect distance that has been adopted in interlocutory injunctions previously granted by the Court.  No problems or difficulties have been raised as a result of this requirement. VicForests has not suggested any undue cost or difficulty in compliance.

1. Save for instances of extreme terrain or unusual physical conditions, there is no apparent reason why targeted 30m transect surveys for mature Tree Geebungs would not be possible in conjunction with other mandated pre-harvest surveys. I conclude that 30m transect surveys are possible in almost all circumstances encountered in practice within coupes.

1. As to any additional cost involved in conducting 30m transect surveys rather than 100m transect surveys, during one interlocutory application Warburton relied on an affidavit of Adrian Lamande, an ecological consultant and field crew contractor, to the effect that the additional cost of 30m transect surveys was minimal and insignificant.  However, Warburton did not tender Mr Lamande’s affidavit at trial.  Equally, VicForests provided no evidence at trial as to the cost of 30m transect surveys  and did not contend that cost was a reason why 30m transect surveys should not be required. There was no evidence that 30m transect surveys would add significantly more time or cost to the other pre-harvest surveys which VicForests is required to conduct or cause any delay to harvesting schedules.

1. As to proportionality, I conclude that 30m transect surveys are likely to be highly effective in locating mature Tree Geebungs, whether or not in flower, and that the conduct of surveys of this type will significantly reduce the risk and threat to mature Tree Geebungs caused by the use of mechanical equipment and regeneration burning. Protective measures cannot be taken until it is known where mature Tree Geebungs are located. This information should be known prior to the completion of coupe planning so that appropriate exclusion areas and buffers can be established, and operational maps endorsed with the necessary information and instructions.

1. The experience of a 100m transect survey at the Pat’s Corner coupe provides a compelling illustration why 30m transect surveys are required. A VicForests Biodiversity Research Officer conducted a pre-harvest survey of Pat’s Corner coupe on 15 April 2020 using 17 waypoints and a 1ha grid (which is the equivalent of 100m transect surveys). He found one Tree Geebung which was in an exclusion zone to the south of the coupe.

1. Warburton subsequently identified 16 Tree Geebungs within the Pat’s Corner coupe. Mr Gunn deposed that the reason why the VicForests’ officer had missed the 16 Tree Geebungs was that he had walked slightly to the east of the cluster of 16 trees on his outward search, and slightly to the west of the cluster on his return journey.

1. On 10 June 2020, following the grant of an interlocutory injunction, a further survey located a total of 29 Tree Geebungs in the Pat’s Corner coupe.

1. I find that the conduct of 30m transect surveys in Wet Forest Coupes is the minimum necessary to identify and thereby protect mature Tree Geebungs in Wet Forest Coupes in native forests in State forests in the Central Highlands.

Buffers

1. Clause 2.2.2.4 of the Code requires biodiversity values listed in the Standards to be identified during planning, and risks to be addressed consistently with the Standards such as through buffers, exclusion areas and protection areas.

1. It is plain from the evidence that without buffers, mature Tree Geebungs are at a high risk of destruction or damage during timber harvesting and regeneration burning. It is also plain that without buffers, Tree Geebungs are at a very high risk of destruction or damage through exposure and windthrow subsequent to harvesting.

1. Mr Mueck gave evidence that a 50m buffer radius was required to protect mature Tree Geebungs during and after timber harvesting, with the Tree Geebungs to be at least 15m from the perimeter of the buffer.

1. He described this as  a simple prescription readily understood by VicForests’ staff and contractors.  In fact, this prescription has been in operation since at least February 2021 as a requirement of the interlocutory injunctions which have been in force without any apparent problems or difficulties.  VicForests did not mount a case that the provision of a 50m buffer would be difficult or impossible in the ordinary case.

1. Mr Organ and Mr Gunn disagreed with Mr Mueck as to the extent of buffer required to protect Tree Geebungs, contending that a lesser buffer, even as low as 10m in radius, would suffice coupled with the other measures contained in the 2021 SMP.

1. I prefer and accept Mr Mueck’s evidence for the reasons which he gave that a 50m buffer of undisturbed vegetation is essential to protect mature individual Tree Geebungs during harvesting, with the Tree Geebung to be no closer than 15m to the perimeter.  Such a prescription is also necessary to protect individuals from windthrow subsequent to harvesting.  The experience of windthrow in the Martell coupe starkly demonstrates the need for buffers to make due allowance for  exposure and windthrow as well as the detrimental consequences of harvesting and regeneration burning. Buffer requirements are readily identifiable at the planning stage following 30m transect surveys.

1. Protective buffers of undisturbed vegetation are the only practicable way of protecting mature Tree Geebungs during and after harvesting. No other method was suggested by the experts.

1. The provision of a 50m buffer around a mature Tree Geebung involves a potential loss of up to 0.8ha of harvestable area to protect each individual.  Mr Organ’s  evidence shows that the loss of this area to timber production is minor having regard to the very large areas of State forests available to VicForests.

1. In summary, the total potential area available for timber harvesting in the State forests in the Central Highlands exceeds 290,000ha, while Mr Gunn gave evidence that the total area harvested annually by VicForests in the Central Highlands was likely to be under 1,500ha although this would be stepped down to end in 2030.  Of the 290,000ha, Mr Organ said that the Tree Geebung was not found in over 190,000ha. In the 100,000ha where Tree Geebungs did occur, Mr Organ’s most extreme calculation of the effect of 50m buffers was to reduce the area available for timber harvesting to slightly under 78,000ha. If 50m buffers were required to protect mature Tree Geebung, there would still be ample area available for timber harvesting by VicForests.

1. I find that a minimum 50m buffer radius, with each mature Tree Geebung at least 15m from the perimeter of the buffer, is essential if Tree Geebungs are to be protected from destruction or damage during harvesting and by exposure and windthrow subsequent to harvesting. The provision of 50m buffers is reasonably practicable having regard to the area required for harvesting and buffers and the area of State forest available.

Firebreaks

1. The undisputed evidence before the Court is that significant numbers of mature Tree Geebungs have been lost through regeneration burning.  It is apparent that the 3m firebreak (one bulldozer blade) ordinarily employed by VicForests and its contractors is not adequate to protect individual mature Tree Geebungs from destruction or damage by fire during regeneration burning in most circumstances.  Professor Feller suggested measures to provide protection for mature Tree Geebungs and achieve better outcomes during regeneration burning.

1. Mr Brown’s evidence highlights that the planning and control of regeneration burns is not a simple matter. Detailed planning and management action is necessary to achieve successful outcomes and avoid the escape of fire. Mr Brown observed that low intensity burns are more difficult to control and may remain alight for longer periods than high intensity burns. Fast ignitions create a high intensity fire that is easier to manage as convection is predictable, reducing the risk of the fire escaping outside the planned control area. They also create high levels of radiated heat capable of scorching Tree Geebungs.  Mr Brown’s evidence points to the need for firebreaks wider than 3m if individual mature Tree Geebungs are to be effectively protected from destruction or damage during regeneration burns.

1. Professor Feller gave evidence that a 10m firebreak around buffers containing mature Tree Geebungs was appropriate and consistent with the Bushfire Management Manual which provided for firebreaks of up to 40m.  I accept his evidence, supported as it is by Mr Brown’s evidence as to the difficulties of controlling regeneration burns and preventing the escape of fire from planned areas.

1. The preservation of Tree Geebungs is not specifically addressed in the Bushfire Management Manual, which is expressed in general terms and does not deal with the firebreaks necessary to protect rare or endangered species.  The extent of firebreaks necessary to protect mature Tree Geebung and other rare and endangered species  merits careful consideration in its own right. In the present case, I am satisfied on the evidence that a 10m firebreak is the minimum necessary to protect mature Tree Geebungs from destruction or scorching during regeneration burning, as advised by Professor Feller.

Issues not before the Court

1. VicForests did not mount a case that timber production would be adversely affected if targeted surveys, buffers or greater firebreaks were required around mature individuals.  It did not suggest that these measures were uneconomic, impractical, unaffordable or commercially burdensome.  It did not call any evidence to show that the ecologically sustainable timber harvesting of State forests managed for timber harvesting would be adversely affected over the remaining eight years, or that timber harvesting operations would be rendered inutile or unsustainable or put at social or economic risk as a result of the measures proposed by Warburton to protect mature Tree Geebungs. There was no social or economic evidence called by VicForests.

1. At one point prior to the trial on an interlocutory application, VicForests sought  to rely on evidence as to a range of impacts said to arise from the making of the injunctions then sought by Warburton.  Deon Kriek, General Manager, Operations at VicForests, gave evidence by affidavit filed 15 October 2020, including as to:

(a)        people whose livelihoods depend on timber harvesting, including VicForests’ employees, contractors, customers or communities;

(b)       VicForests’ operations in forestry management areas and regions;

(c)        the significance of VicForests’ harvesting operations in the Central Highlands;

(d)       VicForests’ contracts with contractors and customers;

(e)        demand and supply for timber;

(f)        the effect of other proceedings on timber production;

(g)       the effect of injunctions on VicForests’ operations; and

(h)       the time and cost of surveys.

1. However, VicForests did not rely on Mr Kriek’s affidavit at trial, or call him to give evidence.  No expert witness was called, or evidence led, by VicForests as to the topics addressed in Mr Kriek’s affidavit.  VicForests did not present a case to the Court on these matters.

1. I do not criticise VicForests or its legal advisers for making the forensic decision not to call evidence on these matters.  I have no doubt that social and economic issues were carefully considered by them before a decision was made not to mount a case or call evidence in these areas.  This decision led to a considerable saving of time at the trial, and substantially reduced the issues to be decided by the Court.

The SMP

1. Warburton submitted that the SMP was entirely inadequate to ensure compliance with the Management Action. It is convenient to address the provisions of the SMP under the headings of:

(a)        surveys;

(b)       retention;

(c)        buffers; and

(d)       regeneration burns and firebreaks.[93]

[93]The SMP does not employ paragraph numbers, making it difficult to give specific references.

Surveys

1. The SMP provides that sightings of mature Tree Geebungs made during any field visits to coupes covered by the SMP must be recorded.  It provides that Targeted Species Surveys are to be undertaken where mature Tree Geebung records exist within the coupe, or within 500m of the coupe (unless forest type and aspect is unsuitable) or where the coupe overlaps with high quality habitat as mapped in the Habitat Distribution Model for Tree Geebung. If forest type and aspect is unsuitable, the Biodiversity team is to be consulted.

1. The SMP provides for Targeted Species Surveys to be undertaken on transects no greater than 100m apart.  When a mature Tree Geebung is recorded, surveyors must search beyond the planned transect within 15m of the detection to identify other mature Tree Geebung close by.  This is for the purpose of determining whether the mature individual may form part of a cluster of individuals.

1. A note under these provisions of the SMP states that if a Targeted Species Survey occurs in accordance with these specifications, it is not a precondition to harvesting that every mature individual Tree Geebung within a coupe has been identified and recorded. However, all Tree Geebung detections within a coupe are to be recorded.

1. I accept Warburton’s submission that the provisions of the SMP dealing with survey are inadequate and will not locate or identify many mature Tree Geebungs located within harvesting areas.  I accept Mr Mueck’s evidence that a targeted survey of 30m transects is essential if mature Tree Geebung are to be protected during coupe harvesting. Protection of mature individuals cannot occur unless they are identified and located.  I also accept Mr Mueck’s evidence that a targeted survey based on 100m transects may fail to identify mature Tree Geebungs in the densely vegetated Wet Forest where mature Tree Geebungs are commonly found.

1. I find that the survey provisions of the SMP are inadequate to meet the Management Action. They are likely to permit continuing environmental degradation of the Tree Geebung species when mature Tree Geebungs are not identified and located by survey.

1. I find that the conduct of 30m transect surveys is reasonably practicable. VicForests has conducted 30m transect surveys in all coupes in the Central Highlands intended to be harvested since February 2021. No submission has been made that 30m transect surveys are not reasonably practicable. I accept Mr Mueck’s evidence that they are feasible and appropriate. In rare instances a coupe might include an area of unusual or extreme terrain. If field surveys are not practicable in such an area, timber harvesting will almost certainly be impossible. Such an area can be expected to be excluded from harvesting during coupe pre-harvest planning or placed in an exclusion area.

Retention

1. The SMP defines a ‘Tree Geebung Exclusion Area’ as an area excluded from timber harvesting for the protection of Tree Geebung identified in accordance with the method specified in the SMP. Exclusion areas are defined to include:

(a)        a cluster of mature individuals;

(b)       an individual identified for protection otherwise than in a cluster; and

(c)        an area generated by extending the original planned harvest boundary, or the boundary of an existing harvesting exclusion area, to protect a cluster or individual.

1. The SMP adopts a process to identify a cluster of Tree Geebungs.  This involves placing a 10m radius circle over each field-verified record of a mature individual Tree Geebung.  If three or more circles overlap or touch, there is a cluster of three or more trees.  A single GPS point denoting the presence of three or more mature individuals also constitutes a cluster. A single GPS point with two mature individuals will also be designated as a cluster if a circle on that point overlaps with another circle.

1. Two intersecting circles of 10m radius which contain only two trees do not constitute a cluster.  Mature individuals found within 10m of coupe boundaries or exclusion areas are to be encompassed by inclusion within the exclusion area. Individuals that are not part of a cluster or adjacent to existing boundaries are to be protected where it is reasonably practicable to do so.

1. Under the SMP, particular consideration is to be given to whether the following types of individuals can be protected.  They are:

(a)        unique, e.g. very large (>30cm DBH), isolated individuals;

(b)       isolated mature individuals to promote seed development and regeneration post-harvest; and

(c)        isolated mature individuals in coupes where Tree Geebungs occur infrequently, by placing them in a protectable exclusion area.

1. The SMP provides that the specific conditions of a coupe must be considered in assessing whether it is reasonably practicable to protect mature individuals, including the location and context of the individual(s) and their risk of exposure, for example from prevailing wind direction that may result in windthrow, and the practicalities of conducting regeneration activities.

1. I accept Mr Mueck’s criticisms and concerns about VicForests’ arrangements. The SMP does not specify with any clarity what is to be done to protect mature individuals not found in an exclusion area. Without adequate protective measures, mature individuals outside an exclusion area are unlikely to survive.

1. There are significant carve-outs and uncertainties in the SMP relating to the protection to be given to clusters of mature Tree Geebungs:

(a)      Clusters of Tree Geebungs are to be protected from harvesting unless it is not reasonably practicable to do so due to safety considerations or a conflicting prescription in the Code or where mature Tree Geebungs are prolific throughout the coupe, and this has been approved by the Environmental Performance team.

(b)       The term ‘prolific’ is not defined in the SMP and has not been defined by VicForests in policy elsewhere. The previous VicForests’ position was that no more than 10% of a harvestable area should be excluded to protect Tree Geebungs with the 10% figure acting as a trigger to engage the Environmental Performance team;

(c)        The Management Action requires VicForests to protect mature Tree Geebungs from disturbance where reasonably practicable. It does not say that there is no need to protect mature Tree Geebung if they are prolific in a coupe. To the contrary, if it is reasonably practicable to protect mature Tree Geebungs, the Management Action requires this to be done whether or not mature Tree Geebungs are prolific in an individual coupe.

(d)       It is hard to understand why VicForests in the future would need, or seek, to harvest a coupe where desktop assessment and pre-harvest field survey had identified that mature Tree Geebungs were prolific throughout the coupe rather than select a coupe not subject to such a major harvesting limitation or free of mature Tree Geebung altogether. There is no evidence of any practical, economic or social imperative that requires VicForests to seek to harvest coupes in which mature Tree Geebungs, an endangered species, are prolific.

1. The protection of mature individuals not found in clusters in harvesting areas is even more problematic under the SMP:

(a)        While the SMP does state that mature individuals not part of a cluster are to be protected where reasonably practicable to do so, and draws attention to very large Tree Geebung (exceeding 30cm DBH) , isolated mature individuals needed to promote seed development and regeneration post-harvest, and to coupes where mature Tree Geebung occur infrequently, protection is left to an assessment of whether it is reasonably practicable to do so having regard to the location and context of individuals, and their risk of exposure to windthrow, and the practicalities of conducting regeneration activities.

(b)       The SMP does not address the need for buffers and firebreaks for regeneration burning around isolated mature individuals. It does not direct the person making the assessment to the need to consider and provide for the buffers and firebreaks required to ensure that mature individuals will be protected and survive.

(c)        The provisions of the SMP are deficient in that they do not clearly set out the steps and measures to be taken by VicForests’ staff and contractors to achieve the Management Action.

1. In my view, the provisions of the SMP do not give full or sufficient effect to the Management Action. The SMP suffers from omissions and uncertainties and is lacking in detail as to what is to be done to ensure that the Management Action is achieved.

1. I accept Mr Mueck’s evidence that these provisions are weak and inadequate to comply with the Management Action and the Code. They are likely to permit continuing degradation of the Tree Geebung species through the loss of significant numbers of mature Tree Geebungs, particularly in coupes where they are prolific, as well as individual Tree Geebungs not found in clusters which are left unprotected or inadequately protected.

Buffers

1. I accept Mr Mueck’s opinion that a 50m buffer of undisturbed vegetation is required for the protection of mature individuals, with each tree located more than 15m from the perimeter of the buffer.

1. The SMP does not provide that buffers are required in exclusion areas for mature individuals. In the case of a cluster of mature Tree Geebungs, the 10m radius circle process may provide limited protection for mature individuals within a cluster. However, the extent of buffer provided is much less than 50m and is inadequate to protect mature Tree Geebungs from exposure and windthrow.

1. I accept Mr Mueck’s evidence that, without an adequate buffer, Tree Geebungs are highly vulnerable to exposure and windthrow.  In my view, the buffer arrangements proposed in the SMP are fundamentally inadequate to protect mature individuals from exposure and windthrow, whether found in clusters or as isolated individuals. They are likely to permit continuing degradation of the Tree Geebung species.

1. I have considered whether the provision of a 50m buffer of undisturbed vegetation protecting mature individual Tree Geebung is reasonably practicable. I find that the provision of such a buffer around mature Tree Geebungs whether found in clusters or isolated individuals is reasonably practicable. All that the provision of a buffer requires is to leave the existing vegetation around the mature individual Tree Geebung undisturbed. An interlocutory injunction requiring 50m buffers to be provided around mature Tree Geebung in the Wet Forest areas of the Central Highlands has been in force since February 2021. There is no evidence of any difficulties associated with this requirement. However, there may on infrequent occasions be difficulties with this requirement for example where access through a buffer area is essential and cannot be practicably achieved by other means. The orders that I propose to make in this proceeding will address this possibility.

Regeneration burns and firebreaks

1. The SMP provides that slash and harvesting debris must not be allowed to accumulate within 3m of Tree Geebung exclusion areas. It also provides for mineral earth breaks to be in place around exclusion areas to protect mature Tree Geebungs from the impacts of regeneration burning.  In coupes, or sections of coupes, containing a Tree Geebung exclusion area, broadcast high-intensity regeneration burns are to be avoided where reasonably practicable. Modified burning techniques, such as low intensity head and slash burns or mechanical disturbance are to be prioritised.

1. As Mr Brown said, low intensity burns can be difficult to control as they are more responsive to factors outside the control of firefighters and remain alight for longer periods, increasing the risk of fire spotting outside the burn area. By contrast, fast ignitions are relatively easy to manage as convection is predictable and fuels burn more quickly, reducing the risk of fire outside the planned area. However, fast ignition burns bring with them the serious risk of destruction or damage to Tree Geebungs through radiated heat and moisture loss, or by the escape of fire.

1. VicForests’ experience with regeneration burns shows that a 3m firebreak is not adequate to protect mature individuals from destruction or damage. I accept Professor Feller’s evidence that a 10m firebreak is essential where possible if Tree Geebungs are to have better prospects of surviving regeneration burns. A 10m firebreak requires slash to be removed 10m from buffer or exclusion areas by mechanical equipment before the regeneration burn is ignited. I am satisfied that this degree of separation is essential if mature individuals are to be protected from disturbance where reasonably practicable. Unless this is done, it is highly likely that degradation of the Tree Geebung species will occur as mature individuals are burnt, destroyed or damaged by regeneration burning.

1. I have considered whether the provision of a minimum 10m firebreak around slash and harvesting debris for the protection of mature Tree Geebung is reasonably practicable. I hold that it is. Mr Brown described the use of mineral earth breaks wider than 3m as a common practice in regeneration strategies. The provision of a 10m firebreak is the existing practice for Tasmanian forests. It is also consistent with the Bushfire Management Manual which allows for firebreaks of up to 40m. There is no reason why it should not also apply in Victoria. While very steep slopes, rocky, or inaccessible terrain might limit the use of bulldozers to create 10m firebreaks in uncommon circumstances, advance planning of coupes, coupe boundaries and exclusion areas will avoid almost all situations where a 10m firebreak cannot be achieved.

Tree Geebungs within available harvest areas under VicForests’ SMP and excluded under proposed injunctions

1. The conclusions I have reached above are strongly supported by other evidence. In order to better understand the consequences of timber harvesting for Tree Geebungs, the Court sought the assistance of the parties to examine the coupe maps exhibited to the affidavits of Mr Gunn.  The maps related to fifteen coupes, and compared the location of Tree Geebungs excluded from available harvest areas in these coupes under the SMP as against the locations of Tree Geebungs excluded from harvesting under the SMP and Warburton’s methodology.  A table summarising the data is at Schedule A to this judgment. While the 2021 SMP was used for the study, this makes no difference to the result.  The ranges shown in some rows and columns reflect the different estimates of the parties, but do not affect the ultimate result or the conclusions to be drawn from the study.  Comments agreed by the parties are also set out in Schedule A.

1. The overall results are significant and clear-cut.  Between 195 and 207 mature Tree Geebungs, approximately 175 juveniles, and about 86 Tree Geebungs of unknown maturity are located within available harvest areas of the fifteen coupes under the SMP but are excluded from harvesting under Warburton’s methodology. The study demonstrates that the application of Warburton’s methodology would afford substantially greater protection to mature individuals than the SMP alone would do.

Conclusion

1. For the reasons I have given, the SMP is an inadequate prescription to achieve the minimum required by the Management Action. If VicForests and its contractors act in accordance with the SMP, it is inevitable that there will be ongoing contraventions of the Code and Standards and significant losses of mature Tree Geebungs. Compliance with the Code and Standards requires targeted pre-harvest surveys of coupes to identify and locate mature Tree Geebungs, the provision of proper buffers during timber harvesting, and wider firebreaks to protect mature Tree Geebungs within buffers from the destructive effects of regeneration burning.

Remedies

1. Subject to the condition specified in the next paragraph, Warburton is entitled to injunctive relief in order that individual Tree Geebungs with a DBHOB of at least 10cm are protected from disturbance where reasonably practicable. The injunctive relief is necessary to achieve compliance with the Code and Standards. The injunctive relief will restrain VicForests, its servants, agents or contractors from carrying out timber harvesting operations in any Wet Forest Coupe in the Central Highlands, including the Pat’s Corner coupe, unless:

(a)        prior to commencing timber harvesting operations:

(i)         a person experienced in the identification of Tree Geebungs surveys the coupe utilising transects spaced at a maximum of 30m;

(ii)       VicForests identifies and records the location of each individual Tree Geebung with a DBHOB of at least 10cm (‘specified Tree Geebung’);

(iii)      VicForests ensures that the relevant coupe map identifies a protective buffer comprising at least a 50m radius circle, measured in the horizontal plane, of undisturbed vegetation around each specified Tree Geebung within the coupe, with each specified Tree Geebung located at least 15m horizontally from the perimeter of that circle; and

(iv)      VicForests ensures that the relevant coupe plan provides adequate specifications and conditions to ensure that the vegetation within buffers remains undisturbed in the course of the timber harvesting;

(b)       in the course of conducting timber harvesting operations, including regeneration burns,  VicForests does all things reasonably necessary and practicable to ensure that:

(i)         vegetation within the buffers as specified in the relevant coupe map in fact remains undisturbed and the specifications and conditions in the relevant coupe plan are followed; and

(ii)       prior to conducting regeneration burns, a firebreak of at least 10m in width is created to separate buffers around specified Tree Geebungs from the area of the regeneration burn.

1. In accordance with the Management Action, the injunctions will be conditional.  VicForests need not comply with these injunctions if in the case of any individual coupe, or part of a coupe, it is not reasonably practicable to do so. In order to ensure accountability in such a case, the destruction or damage of one or more mature Tree Geebung is to be recorded in the relevant coupe log, setting out the reason or reasons why it was not possible to comply with the injunctions, and signed by the Senior Forest Officer or other senior person within VicForests responsible for the harvesting or regeneration burning of the coupe. I will also require that the incident and the reason or reasons why it was not possible to comply with the injunction be promptly reported by email or by other digital means to the OCR and to Warburton as the party which has the benefit of the injunctions.

1. There is no need for the declaratory relief alternatively sought by Warburton.

1. I answer the questions posed in the agreed further amended statement of issues as follows:

1.        Does the plaintiff have standing to bring the proceeding? Yes

2.        In carrying out timber harvesting operations in:

(a)       Pat’s Corner; or

(b)       alternatively, Wet Forest Coupes in the Central Highlands

in order to effectively comply with cl 2.2.2.4 of the Code and/or cll 4.2.1.1 and 4.2.1.3 and Appendix 1 Table 14 of the Standards as they apply to Tree Geebung and/or cll 2.2.2.2 and/or 2.2.2.10 of the Code, is VicForests:

(c)       required in relation to Tree Geebung to implement:

(i)the measures set out in paragraph A of the prayer for relief in the FFASOC; or

See [462] and [463] above

(ii)the measures set out in paragraphs AA and AAA of the prayer for relief in the FFASOC; or

Paragraph AA – see [462] and [463] above

Paragraph AAA - No

(iii)the measures set out in paragraphs AB and AC of the prayer for relief in the FFASOC; or

Paragraphs AB and AC  - No

(iv)any other measures, and if so what measures; or

See [462] and [463] above

(d)able to meet those obligations by implementing VicForests’ Tree Geebung Special Management Plan.

No

Final orders and costs

1. The parties have requested that they have the opportunity to be heard in relation to the final form of orders to be made by the Court in consequence of these reasons. I will give directions for the parties to bring in orders to give effect to these reasons, and hear the parties as to the final orders to be made by the Court (if necessary) and as to costs.

SCHEDULE A
Tree Geebung excluded from potential available harvest area under VicForests’ SMP						Locations of Tree Geebungs within available harvest areas under VicForests’ SMP and excluded under Warburton Environment’s methodology
Coupe	Mature individual	Juvenile individual	Unknown maturity individual	Mature cluster	Juvenile cluster	Unknown maturity cluster	Mature individual	Juvenile individual	Unknown maturity individual
Aurora	31	3	0	56	3	0	33	5	0
Ben 10	20 / 24	5	0	102	14	0	20 / 28	4	0
Bens Reward	14	12 / 16	0	35	15	0	2	1	0
Duchess	9	1	0	2	0	0	14	1	3
Fireman Sam	10	2	0	5 / 8	2	0	12 / 16	4 / 5	0
Fishernak	0	12	0	6	4	0	1	115	0
Gaboon	3	2	5	0	0	0	1	0	0
Harley	12	3	0	18	3	0	12	4	1
Lachrymose	2	1	0	0	0	0	2	0	2
The Shard	1	1	56	2	0	81	2	1	80
Upper Moomba	24 / 25	0	0	11	1	0	1	0	0
Dwyer Gully	15 / 18	2	0	15	0	0	14	1	0
Oriol	32	35	0	228	0	0	33	32	0
Kika	6	0	0	9	0	0	14	1	0 / 1
Love Lost	34 / 33	3	0	49	1	0	34	6-7 / 4	0
TOTAL	213 / 220	82 / 86	61	538 / 541	43	81	195 / 207	175-176 / 174	86 / 87

Notes of interpretation

• Entries in the three columns relating to ‘Locations of Tree Geebungs within available harvest areas under VicForests’ SMP and excluded under Warburton Environment’s methodology’ do not include Tree Geebung already excluded under VicForests’ SMP.

• Tree Geebung marked as ‘Mature – physiology’ and ‘Mature – assumed’ are both counted as mature for the purposes of this table.

• Only trees within the relevant coupe boundary are considered.

Comments agreed between the parties

• The counts in the table are agreed other than where changes have been tracked. Where numbers are separated by a slash, the first number is the plaintiff’s count and the second number is the defendant’s count.

• The first (left-hand) set of columns headed “Mature individual”, “Juvenile Individual” and “Unknown maturity individual” refer to red, orange, yellow and green stars surrounded by blue or orange circles that are excluded from the dotted areas representing potentially available harvestable area (“Available Harvest Area”) using VicForests SMP. 

• The columns headed “Mature cluster”, “Juvenile cluster” and “Unknown maturity cluster” refer to Red, Orange, Yellow and green stars surrounded by green circles located anywhere within the coupe boundaries.

• The columns under the general heading “Additional Tree Geebung saved under Warburton Environment’s methodology” are Red, Orange, Yellow and Green stars surrounded by blue circles that are located within the Available Harvest Area.

• Trees falling within black hatched areas reflecting areas previously harvested have not been included in the count.

• The maps exhibited to Mr Gunn’s affidavits were produced using data from the relevant shapefile recording Tree Geebung survey data.

• Each map uses stars to identify GPS waypoints from the relevant shapefile.

• As Mr Gunn explained in his oral evidence on 23 February 2022 (transcript of hearing at T348.26-30), multiple Tree Geebung may be present at a single GPS waypoint.