Warburton Environment Inc v VicForests (No 6)
[2022] VSC 762
•7 December 2022
| 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 |
---
JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Written submissions on relief and final orders |
DATE OF RULING: | 7 December 2022 |
CASE MAY BE CITED AS: | Warburton Environment Inc v VicForests (No 6) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 762 |
---
ENVIRONMENTAL LAW – Timber harvesting within State forests in Central Highlands - Tree Geebung – Endangered species – Relief and final orders – Whether need for ongoing supervision by Court – Whether clear and capable of compliance – Recovery and reporting requirement – Form of Court order – Use of spatial data layers in final orders – Definitions – Expression of the injunction – Extent of reach – Glider proceedings – Liberty to apply if material change in law – Costs.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Korman with Dr K Weston-Scheuber | Oakwood Legal |
| For the Defendant | Mr E Nekvapil SC with Ms M Narayan | Johnson Winter & Slattery |
HIS HONOUR:
Introduction
On 25 October 2022, I handed down reasons for judgment in this proceeding.[1] The parties were directed to consult and file a joint form of order consequent upon the judgment. In the event that they could not agree on a proposed form of order, each party was to file and serve a draft final order. Directions were given as to the filing of affidavits and submissions as to costs. The parties have consulted as to the final form of orders and have reached substantial agreement or non-objection as to many matters, including as to costs.
[1]Warburton Environment Inc v VicForests (No 5) [2022] VSC 633 (‘reasons for judgment’).
In these reasons, I will use the same terminology as is used in the reasons for judgment. I will address the issues that the parties have not been able to resolve.
For clarity, I note that agreements between the parties as set out in these reasons are not intended in any way to affect their position or prejudice their rights in the event of an appeal. They are merely agreements as to the orders that should be made in consequence of the reasons for judgment.
Secondly, it is important to state that the orders to be made are orders consequent upon the reasons for judgment. This is not an opportunity for a party to reopen its case at trial or to introduce new matters not raised at trial and properly the subject of evidence if they had been raised.
VicForests’ submissions
In its submissions as to relief, VicForests contended that there were significant difficulties with the form of injunction proposed to be made by the Court and that an injunction ought not be granted in the form proposed. VicForests advanced three main submissions.
Need for ongoing supervision
VicForests submits that the Court should not make an injunction that requires the Court’s ongoing supervision by admitting of the possibility of repeated applications for rulings on compliance.[2] It contends that the practical effect of the injunction will be to require the Court to supervise the injunction until the end of native timber harvesting in Victoria, as VicForests would find it necessary to approach the Court for a ruling on whether compliance with the mandatory requirements of the injunction is ‘reasonably practicable’ in the circumstances rather than risk a contempt of court.
[2]Referring to Patrick Stevedores Operation No 2 v Maritime Union of Australia (1998) 195 CLR 1, 47 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
In my view, the suggested concern overlooks the form and content of the order and the context in which it will operate. It also overlooks VicForests actual experience under the regime of the interim and interlocutory injunctions made on eight previous occasions in this proceeding and undertakings given on two further occasions.[3]
[3]9 June 2020, 6 August 2020, 13 August 2020, 23 September 2020, 6 October 2020, 15 October 2020, 16 October 2020, 8 February 2021, 2 February 2021 and 5 March 2021.
The underlying purpose of the orders is to protect mature Tree Geebungs as an endangered species where it is reasonably practical to do so. The restrictions imposed by the proposed injunction are narrow and specific in scope. In general terms, they apply only when VicForests proposes to harvest a coupe in a native forest in a State forest in the Central Highlands containing mature Tree Geebungs, or which might contain mature Tree Geebungs.
The injunction requires three simple and straightforward steps. The first is to conduct a survey using 30m transects to locate mature Tree Geebungs before harvesting. The second applies where there are found to be mature Tree Geebungs and requires leaving a 50m buffer around each mature Tree Geebung. The third is to provide a 10m firebreak to protect Tree Geebung buffers during regeneration burning.
No practical difficulties with the survey and 50m buffer requirements have been experienced in relation to the interlocutory injunctions to the same or similar effect. No applications have been made to the Court of the type foreshadowed in VicForests’ submission. Likewise, no practicable difficulty is anticipated with the 10m firebreak requirement.
In the reasons for judgment, I identified the very limited circumstances where compliance with the requirements of the proposed injunction might not be possible, although in most circumstances the need for there to be any non-compliance could be prevented by coupe planning which avoids problematic areas.
The identified limited circumstances were based on the evidence given in the proceeding, particularly by the experts, and are noted in the reasons for judgment. A 30m transect survey might not be reasonably practicable in an area of unusual or extreme terrain.[4] On infrequent occasions there might be difficulties with the 50m buffer requirement where access through a buffer area was essential to access other land and could not be practically achieved by other means.[5] Use of a bulldozer to create a 10m fire break around slash and harvesting debris might be difficult where there were very steep slopes or rocky or inaccessible terrain.[6]
[4]Reasons for judgment [440].
[5]Ibid [454].
[6]Ibid [458].
Compliance with the restrictions in the injunction is not difficult. The fact that the order allows an exemption to VicForests in extreme or unusual physical circumstances, where it may not be reasonably practicable to comply with the injunctions, does not give rise to a need for repeated applications to the Court, or difficulties in compliance. It will only be on rare occasions that the physical circumstances are such that it will not be possible to comply with the specified requirements.
The existence of very steep slopes, extreme or rocky terrain, or other unusual physical circumstances in an individual coupe, so that it is difficult to fully implement the restrictions in the injunction, does not seem the stuff of repeated applications to the Supreme Court, or indeed that there would be any need to approach the Court. This is not the past experience and is very unlikely to be the future experience.
It was not suggested at the trial that any of the restrictions proposed by Warburton are or were or might be uneconomic, unaffordable, or commercially burdensome with the result that these issues do not arise. It was not suggested that there was any cost-related, commercial, social or economic reason why the restrictions could not be fully complied with.[7] It is not necessary to make provision for any of these matters.
[7]Ibid [430]-[433].
VicForests is very familiar with regulatory requirements. As I set out in the reasons for judgment, VicForests is required to comply with the provisions and requirements of the Conservation, Forests and Lands Act 1987 (Vic) and the Sustainable Forests (Timber) Act 2004 (Vic) including the principles of ecologically sustainable development, allocation orders, and timber resource plans, and all applicable conditions.[8]
[8]Ibid [16]–[36].
VicForests must also comply with the detailed provisions of the Code and Standards. It has to comply with the Management Action for Tree Geebung, and protect individual mature Tree Geebung ‘where reasonably practicable’, and whether or not injunctions are granted. In the rare instances where compliance with the three requirements that I have mentioned is not possible, the injunctions are nonetheless to be complied with, as far as it is reasonably practicable to do so. Compliance is likely to be possible in most parts of a coupe, even if in one part of a coupe full compliance cannot be achieved.
I conclude that in the circumstances, it is highly unlikely that there would be any need for VicForests to approach the Court. I am satisfied that there is no substance in VicForests’ concern, that it or its contractors might need to make repeated applications to the Court for rulings on compliance.
Nonetheless, I will add some additional words to paragraph 4 of the draft order as proposed by the parties, to give additional clarity and certainty to the limited scope of the exemption. The additional words will make it clear that the exemption applies where it is not reasonably practicable to fully comply with the injunction, by reason of the extreme or unusual physical conditions or circumstances of a coupe or part of a coupe including topography or terrain.
The paragraphs of the reasons for judgment that I have mentioned also give additional guidance to VicForests.
Clear and capable of compliance
VicForests’ second submission was that the injunction must be clear and capable of compliance, so that VicForests knows with precision what is required of it.
The precise form of the requirements set out in the injunction requiring survey at 30m transects, 50m buffers around mature Tree Geebungs and 10m firebreaks has been comprehensively reviewed by the parties and the Court.
It is not suggested that there is any lack of clarity or ambiguity about the three requirements that VicForests must meet. Equally, the possibility is recognised that in extreme or unusual physical conditions in a coupe, VicForests may not be able to fully meet all the requirements. In such circumstances, VicForests must meet the same requirements as far as it is reasonably practicable to do so.
In my view, the injunction is clear and capable of compliance. VicForests is well aware of what it needs to do.
Recording and reporting requirement
The third submission made by VicForests relates to the need to report decisions made by its officers to destroy or damage mature Tree Geebungs, or to place mature Tree Geebungs at risk of destruction or damage, by failing to comply with the requirements of the injunction.
In the reasons for judgment, I summarised the recent outcomes of timber harvesting conducted by VicForests and its contractors concluding that there were few records of past losses of mature Tree Geebungs.[9] Rather, the evidence showed that mature Tree Geebungs within the harvestable area of coupes were routinely destroyed or damaged in the period prior to the grant of interlocutory injunctions for their protection.[10]
[9]Ibid [369].
[10]Ibid [371].
I concluded that the evidence was compelling and uncontested that past practices of VicForests and its contractors had led to the loss of many mature Tree Geebungs in the harvestable areas of coupes. The precise extent of the losses would never be known, but on the evidence was likely to amount to many hundreds or even thousands of mature Tree Geebungs.[11]
[11]Ibid [401]-[403].
In the circumstances, there is a need for decisions by VicForests’ personnel to destroy or damage mature Tree Geebungs or to place them at risk to be made by an appropriately senior officer and reported. This will ensure that records are actually maintained of the destruction of, or damage to, mature Tree Geebungs, as an endangered species endemic to the Central Highlands.
Tree Geebung is a very long-living species, with a potential lifetime that may extend over hundreds of years. The surveys that have been conducted by the Department of Environment, Land, Water and Planning (‘DELWP’) and by other bodies including Warburton and VicForests, have given rise to ever growing digital records of their location in native forests in State forests in the Central Highlands, including in the Victorian Biodiversity Atlas.
VicForests relied on the decision of Mansfield J in Australian Competition and Consumer Commission v Rural Press Ltd,[12] where his Honour rejected a condition of a mandatory injunction, which was intended to provide a mechanism by which an external third party might measure the performance of the primary obligations to be imposed by the Court. Mansfield J held that the Commission should not be made, in effect, the supervisor of compliance with the order.[13]
[12][2001] FCA 1065, [33] (‘Rural Press’).
[13]See also Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236, 286; BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167, [48]–[50].
The position here is very different. The Tree Geebung is an endangered species, the future existence of which is under threat. The provisions of the order will require an appropriately senior person within VicForests to authorise decisions concerning the destruction or damage, or risk of destruction or damage to mature Tree Geebungs.
The order will also require that information is recorded and maintained of decisions which may result in the destruction or damage of, or risk of destruction or damage to mature Tree Geebungs.
Two bodies that have conducted extensive field investigations, undertaken research and collected data about the Tree Geebung in the Central Highlands are DELWP and Warburton. They have both made many studies of the Tree Geebung species in the Central Highlands.[14]
[14]As to Warburton, see reasons for judgment [259]-[260].
It is desirable and appropriate in my view that both DELWP and Warburton be informed of decisions by VicForests to destroy or damage mature Tree Geebungs, or which place mature Tree Geebungs at risk. To obviate VicForests’ concerns as expressed in its submissions, I will modify the final form of order, so that it refers to DELWP, rather than the regulator, being the Office of the Conservation Regulator (‘OCR’).
Unlike the Commission in Rural Press, OCR is not a party to the proceeding and has had no role in the conduct of the proceeding. It is not anticipated that OCR will have any future role in relation to the proceeding.
The form of Court order
The most recent version of the proposed orders submitted on 18 November 2022 highlights the differences between the parties.
Paragraph 1
Use of spatial data layers
The parties have achieved agreement as to the definition of ‘Central Highlands’, ‘DBHOB’ and ‘timber harvesting operations’. I will adopt the agreed definitions.
The parties disagree as to the definition of ‘Wet Forest’ and ‘Wet Forest Coupe.’ The main difference concerns how the definitions are to be expressed.
VicForests proposes a definition based on spatial data layers, derived from different data sets. This would permit the spatial data layer to be overlain on digitally produced maps.
VicForests submitted that:
(a)the use of a spatial data layer would ensure certainty as to the scope of the order and avoid confusion, if the spatial data layers were subsequently amended; and
(b)the spatial data layer adopted included all of Warburton’s proposed categories, except for the category relating to a coupe located in the Central Highlands, which is wholly or partially included within DELWP’s habitat importance model for Tree Geebung.
Warburton objected to VicForests’ definition of ‘Wet Forest’ based on digital data as unworkable and unnecessary. It submitted that:
(a)neither the Court nor Warburton has any ready means of ascertaining whether and to what extent, the proposed spatial data layer relates to four of the five categories of forest included in its definition of ‘Wet Forest Coupe’;
(b)nothing was achieved by including the spatial data layer in the final orders;
(c)VicForests is at liberty to use digital information in implementing the permanent injunctions. It already makes extensive use of digital overlays in the production of its operations maps and has no need for a Court order requiring it to do so; and
(d)Warburton’s proposed orders are clear and easily complied with. There is no need to add digital ‘gloss’ to the readily applied criteria for identifying Wet Forest Coupes.
Ruling on spatial data layers
I accept Warburton’s submission, that there is no need to express the definition of ‘Wet Forest’ in the final order in terms of digital spatial data layers. The interlocutory injunctions were not granted on this basis. The permanent injunctions granted by the Court should be as simple and as clear as possible. They need to be understood by both parties. There was little, if any, evidence at the trial as to the use by VicForests of spatial data technology. If the injunction was expressed using spatial data technology, it would be difficult and resource intensive, to determine whether they had been complied with. None of this detracts from the use of digital technology by VicForests in its operations, including to ensure compliance with the injunction.
Definition of ‘Wet Forest’
The second issue to be determined is whether the definition of ‘Wet Forest’ should extend to coupes located in the Central Highlands, which are wholly or partially included in DELWP’s habitat importance model for Tree Geebung.
Ruling on definition of ‘Wet Forest’
The habitat importance model seeks to predict where suitable habitats may exist for a nominated species. No persuasive reason was advanced as to why the areas predicted by DELWP’s model for Tree Geebung should be excluded. I find that it is appropriate to include coupes located in areas falling within the DELWP’s habitat importance model for Tree Geebung.
Form of paragraph 1
Given these conclusions, I accept Warburton’s draft as to paragraph 1.
Paragraph 2
There are two issues that arise in relation to paragraph 2.
Expression of the injunction
Warburton seeks an injunction that relates to ‘VicForests, its servants, agents or contractors or howsoever’. VicForests seeks to delete the words, ‘or howsoever’.
It is unclear why VicForests seeks to have these words removed. As Warburton submits, it cannot reasonably be suggested that VicForests is permitted to ignore the Court’s orders if it acts in some way other than directly or through its own servants, agents or contractors. It is hard to conceive of any reason why the words, ‘or howsoever’ should be omitted. I will leave the words as they are in Warburton’s draft but adopt the more traditional formulation of ‘howsoever otherwise’ frequently found in injunctions.
Extent of search beyond the perimeter of coupes prior to commencing harvesting operations
Warburton submits that the extent of search should be 50 metres, being the same distance as the buffer areas. VicForests submits that the extent of search beyond a coupe boundary should be 20 metres.
In my view, mature Tree Geebungs beyond coupe boundaries should be given no less protection than mature Tree Geebungs within coupe boundaries. In circumstances where an expansive, unlogged forest adjoins the proposed harvest zone, a 50m buffer can be provided for mature Tree Geebungs extending into that forest.
However, a problem arises when this is not the case and the proposed timber harvesting will leave only a strip of unharvested forest adjoining the proposed harvest zone. This will occur if coupes are in close proximity to each other or are only separated by a narrow strip of retained forest.
Warburton submits that in such a situation, the mature Tree Geebungs must be identified during the harvest planning process so that they can be protected.
Given the minimal additional cost and effort involved, it is better in my view for the survey to extend to 50 metres beyond coupe boundaries, rather than risk the loss of mature Tree Geebungs. The order will require a 50 metre search distance beyond coupe boundaries.
Paragraph 3
The parties are agreed on subparagraphs (a) and (b), which are uncontroversial. Paragraph 3(a) provides an exemption from the injunction for the felling or cutting of trees or parts of trees in order to address a serious risk to human safety or as otherwise advised, ordered, or directed by a responsible authority, including DELWP or Parks Victoria.
VicForests seeks additional exemptions for:
(c) the felling of trees, or parts of trees, for the maintenance of any road;
(d) cutting limbs of trees for the purposes of seed collection;
(e) regeneration activities, other than regeneration burns; and
(f) undertaking any work within a coupe to manage or prevent environmental degradation, whether on the instruction, recommendation or direction of DELWP or otherwise required to comply with the Code.
VicForests’ defence does not plead any claim for the additional exemptions. It is not obvious why the additional exemptions are sought at this late stage of the proceeding. No affidavit or evidence was presented at trial or has been presented subsequently as to why the additional exemptions are necessary. Interlocutory orders and injunctions have been made on many occasions, without any perceived need for the additional exemptions.
The exemption proposed in sub-paragraph 3(f) is largely covered by the exemption already allowed in sub-paragraph 3(a). Works to prevent environmental degradation are permissible, and do not contravene the injunction. It is not obvious why mature Tree Geebungs should be destroyed or damaged in the process. Again, there is no pleaded case, evidence or affidavit from VicForests that would support the additional exemptions now claimed. There is nothing that shows why VicForests seeks an exemption in the form of sub-paragraph 3(f) when it already has the benefit of the exemption in sub-paragraph 3(a).
Glider proceedings
In proceedings No S ECI 2021 01527 and S ECI 2021 04204 (‘glider proceedings’), Richards J gave VicForests liberty to apply in the event of a change in the relevant law. Her Honour also gave VicForests liberty to apply by 25 November 2022 to vary the carve-out orders made in the glider proceedings and to apply to the extent necessary to reopen its case in relation to those orders.
VicForests seeks liberty to apply to vary the exemption orders made in paragraph 3 of the final order in this proceeding in the event that her Honour varies the order made on 11 November 2022.
Since 2020, this proceeding has been conducted independently of the glider proceedings. It has an entirely different subject matter. It concerns the Tree Geebung, which is flora and not fauna. The exemptions granted in the final orders are based on the evidence led and submissions made in this proceeding. They have no necessary relationship to the orders made in the glider proceedings. It has not previously been suggested that the orders made in the glider proceedings will affect the orders to be made in this proceeding in any material way. In the circumstances, I am not persuaded that a provision needs to be made in the order for the glider proceedings, as suggested by VicForests.
Paragraph 4
As previously mentioned, I will make two changes to paragraph 4 to give greater clarity and certainty to the order and to respond to VicForests’ concerns. After the words, ‘Where it is not reasonably practicable to fully comply with paragraph 2 above’, the words ‘by reason of the extreme or unusual physical conditions or circumstances of a coupe or part of a coupe, including its topography and terrain’, will be added.
These additional words reflect the findings of the Court on the submissions and evidence in the proceeding as presented by the parties.
I will also delete the reference to OCR and substitute a reference to DELWP, which is the body that maintains the Victorian Biodiversity Atlas and data about the Tree Geebung and other endangered species.
Liberty to apply
I am satisfied that liberty to apply should be granted to both Warburton and to VicForests in the event of a material change to the law.
Costs
Warburton applies for its costs of the proceeding on the standard basis. VicForests does not oppose an order as to costs on this basis. The parties' position on costs reflects the order for costs that I would have made.
I will make an order for the costs of the proceeding in the standard form sought by Warburton and not opposed by VicForests.
0
4
0