Wombat Forestcare Inc v VicForests
[2023] VSC 582
•2 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2023 04203
| WOMBAT FORESTCARE INC (ABN 94 771 427 351) | Plaintiff |
| v | |
| VICFORESTS | First Defendant |
| and | |
| TILEY INDUSTRIES PTY LTD | Second Defendant |
| and | |
| GARY and COLLEEN KIRBY | Third and Fourth Defendants |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 September 2023 |
DATE OF JUDGMENT: | 2 October 2023 |
CASE MAY BE CITED AS: | Wombat Forestcare Inc v VicForests |
MEDIUM NEUTRAL CITATION: | [2023] VSC 582 |
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ENVIRONMENTAL LAW — Timber harvesting in State forests — Applications for interlocutory injunctions — Where forest produce licences issued by VicForests for timber harvesting activities — Precautionary principle — Whether serious question to be tried that timber harvesting operations unlawful — Whether necessary surveys carried out by VicForests for threatened species of flora and fauna — Balance of convenience — Interlocutory injunctions granted — Forests Act 1958 (Vic), s 52 — Sustainable Forests (Timber) Act 2004 (Vic), s 46 — Code of Practice for Timber Production 2014 (as amended 2022), ss 2.2.2.2, 2.2.2.4.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Korman | J King Legal |
| For the First Defendant | Ms F Hudgson | Johnson Winter Slattery |
| For the Second Defendant | Mr H Redd | Harwood Andrews |
| For the Third and Fourth Defendants | No appearance |
TABLE OF CONTENTS
Background.................................................................................................................................... 1
The defendants..................................................................................................................... 1
Coupe 193-538-0008 ‘Silver Queen’................................................................................... 3
Interlocutory injunctions — principles...................................................................................... 8
Code of Practice for Timber Production 2014 (as amended 2022)......................................... 8
Standing........................................................................................................................................ 15
Serious question to be tried....................................................................................................... 15
Spot-tailed quolls............................................................................................................... 17
Forest owls.......................................................................................................................... 20
Reptiles................................................................................................................................ 22
Flora..................................................................................................................................... 26
Balance of convenience............................................................................................................... 27
Consideration..................................................................................................................... 29
HER HONOUR:
Background
Wombat Forestcare Inc (WFC) is an incorporated association of about 200 members, with the purpose of protecting and enhancing the ecological health of the Wombat State Forest, located near Woodend and Daylesford in central Victoria. According to its convenor, Gayle Osborne, WFC has for many years organised and participated in events and activities promoting conservation of native flora and fauna in the Wombat State Forest. WFC claims to have a special interest in the protection of the environment in the Wombat State Forest, and standing to seek injunctions to restrain what it says are unlawful timber harvesting operations in coupe 193-538-0008, also known as ‘Silver Queen’.
WFC became aware that timber harvesting was taking place in Silver Queen in early September 2023, and commenced this proceeding on 11 September 2023. I heard an application for interlocutory injunctions on 18 and 21 September 2023. On 26 September 2023 I made orders granting interim injunctions to prevent timber harvesting operations from continuing in Silver Queen until 5:00pm on 31 October 2023. I also made procedural directions for the filing and service of pleadings, further evidence, and further submissions, and adjourned the further hearing of WFC’s application to 31 October 2023.
These are my reasons for those orders.
The defendants
VicForests is a Victorian Government owned business, established by an Order in Council made under s 14 of the State Owned Enterprises Act 1992 (Vic). Its primary purpose is the commercial sale and supply of timber resources in Victorian State forests allocated to it under the Sustainable Forests (Timber) Act 2004 (Vic) (Timber Act).
VicForests also has the functions of planning, managing and monitoring commercial timber harvesting activities in areas of State forest that have not been allocated to it under the Timber Act. To enable it to perform those functions, VicForests has delegated powers to issue and administer commercial forest produce licences under s 52 of the Forests Act 1958 (Vic).[1] VicForests refers to timber harvesting operations undertaken under a forest produce licence as ‘community forestry operations’.
[1]Instrument of delegation by the Minister for Agriculture and Food Security under s 11(1) of the Conservation, Forests and Lands Act 1987 (Vic) dated 3 November 2014, delegating powers, functions and duties under s 52(1), 52(3) and 52(5) of the Forests Act 1958 (Vic) to VicForests’ Chief Executive Officer, General Manager Stakeholders and Planning, General Manager Sales and Contracting, General Manager Operations, and Regional Manager West.
Tiley Industries Pty Ltd operates an extensive firewood business, usually at Mt Cole and in the Pyrenees Ranges. VicForests has issued two forest produce licences to Tiley Industries to cut, dig and take away forest produce — specifically mixed species (non‑Ash) residual logs with a diameter of up to 250 cm — in the Midlands Forest Management Area (Midlands FMA). Both licences are valid from 1 November 2021 to 30 June 2024, and may be renewed. The conditions of both forest produce licences require Tiley Industries to carry out harvesting in accordance with any approved cutting plan and any forest coupe plan.[2]
[2]Standard Forest Produce Licence Conditions (December 2014), condition 10.1.
Licence number COM000825 permits Tiley Industries to take a volume of 4,500 tonnes of timber in total, or up to 1,500 tonnes annually, which is to be primarily sourced from the Mt Cole/Mt Lonarch area. Licence number COM000826 permits Tiley Industries to take 1,980 tonnes in total, or up to 660 tonnes annually. The timber for this licence is to be primarily sourced from the Pyrenees Ranges but may be supplied from elsewhere in the Midlands FMA.
VicForests has also issued two forest produce licences for common species green firewood in the Midlands FMA to Gary and Colleen Kirby, who operate a firewood business at Blakeville and the Barkstead area. Coupe 193-526-0001, known as ‘Sample’ in the Wombat State Forest has been earmarked for the Kirbys to collect windthrown timber for firewood using ground collection. Operations planning for Sample is not yet complete and operations have not commenced. Separately, on 28 August 2023, Tiley Industries sub-contracted Gary Kirby to conduct timber harvesting operations in Silver Queen.
While they were joined as defendants to the proceeding on 18 September 2023, no interlocutory relief was sought against the Kirbys, and they did not appear at the hearing on 21 September 2023.
Coupe 193-538-0008 ‘Silver Queen’
Coupe 193-538-0008, designated ‘Silver Queen’, lies within the Wombat State Forest in the Midlands FMA, about 3–4 kilometres west of Bullarto South, on the south side of Leonards Hill-South Bullarto Road. It is an area of 38.76 hectares located at the top of the range at high elevation, sloping down towards the Werribee River along its southern boundary. The coupe is dominated by messmate species. Silver Queen was affected by severe storms in 2021 and contains a significant number of windthrown trees. It is some distance from the other areas of the Midlands FMA which are the primary sources for the timber to be taken under Tiley Industries’ forest produce licences — that is, the Mt Cole/Mt Lonarch area and the Pyrenees Ranges.
In May 2023, VicForests prepared a forest operations coupe plan for Silver Queen, for harvesting a net area of 18.9 hectares. Section 2 of the plan identifies the silvicultural intent as ‘Adaptive Silviculture — Recovery’ and the silviculture system as ‘Clearfelling — Salvage’. The planned silvicultural system and requirements are specified to be ‘As per Operation Overview and Species Management Guide (HCVs) & Operations Map’. The Operations Map is Figure 1 below.[3]
Figure 1: Operations Map for Silver Queen, Affidavit of James Murdoch Gunn dated 18 September 2023, Exhibit JMG-1, 810.
[3]The evidence at present does not include the Operations Overview or the Species Management Guide (HCVs).
The harvest requirements set out in the coupe plan are as follows:
7
Harvest requirements
7.1
Retained Trees
Area has been significantly impacted by windthrow. Removal of additional trees to be minimised and protecting remaining live, standing trees is a priority for the operation. This protection includes (but is not limited to) minimising damage to/impacting the boles of living trees.
7.2
Large Tree Protection
7.3
Trees to be felled
Removal of standing trees is not to be done without written authorisation from the Supervising Forester.
7.4
Stump heights
Where possible, stumps/root balls are to be stood back in their holes.
7.5
Coupe utilisation requirements
Licensee is to ensure that all saleable timber is extracted from the treatment area.
Section 2 of the coupe plan also contemplates that contractors will be provided with High Conservation Value fact sheets and will be instructed to be vigilant for a number of species during operations. The species identified are the Powerful Owl, the Greater Glider, the Wombat Bush-pea, Brooker’s Gum, Netted Daisy-bush, Mountain Bottle‑daisy, Soft Crane’s-bill and Spotted Hyacinth-orchid. Under the heading ‘Habitat Retention Plan’, there is a reference to pre-operation surveys for threatened species having been undertaken in the coupe, both drone and foot-based. In addition to instructions for the retention of habitat trees, there is a specific requirement that standing trees within the coupe will only be removed ‘for the construction of infrastructure, where there is a perceived risk, the tree is deemed hazardous to forest users, or where there is operational necessity’.
Since May 2023, a timber harvesting safety zone under s 77B of the Timber Act has applied to Silver Queen, comprising all of the coupe and State forest within 150 metres of the coupe boundary. As a result, it is an offence for anyone other than an authorised person to enter or remain in the coupe.[4]
[4]Sustainable Forests (Timber) Act 2004 (Vic), s 77G (Timber Act).
Although the contractor identified in the Silver Queen forest operations coupe plan is Pyrenees Timber Pty Ltd, Tiley Industries has been ‘signed in’ to the coupe. On 29 June 2023, Dale Tiley of Tiley Industries signed a Harvesting Commencement Declaration for Silver Queen. He acknowledged that he had received a copy of the forest coupe plan, had discussed it with an officer of VicForests, and understood it. He declared that he would ensure that the operation is conducted in accordance with the forest coupe plan and that all operators working on the coupe are aware of their responsibilities under it.
Timber harvesting operations commenced in Silver Queen on or about 28 August 2023, undertaken by Tiley Industries’ contractor, Gary Kirby. The operations have been carried out using a specialised tracked machine, fitted with forks, a cut-off saw, and a log grapple. An excavator may also be used.
VicForests’ Acting Director, Practices and Planning, James Gunn, described the timber harvesting operations in Silver Queen as ‘low intensity’ community forestry operations.[5] It is difficult to reconcile that description with the two photographs taken on 3 September 2023 that were exhibited to Ms Osborne’s affidavit, which are reproduced at Figure 2 below. Those photographs are consistent with the harvesting requirement in the coupe plan to extract ‘all saleable timber’, and do not indicate that any coarse woody debris is being retained in the harvest area.
Figure 2: Photographs of Silver Queen coupe taken on 3 September 2023, Affidavit of Gayle Osborne affirmed 12 September 2023, Exhibit GO-1, 28–29.
[5]Affidavit of James Murdoch Gunn affirmed 18 September 2023, [40] (First Gunn affidavit).
I was informed towards the end of the hearing on 21 September 2023 that Tiley Industries had temporarily ceased operations in Silver Queen about two weeks earlier, on the instructions of VicForests. Counsel for Tiley Industries advised that his instructions were that there was no activity going on in the coupe at that time. After obtaining instructions, counsel for VicForests advised that operations were initially ceased due to bad weather, and that this proceeding had also been mentioned ‘in passing’. As a result, there had been no operations in the coupe for more than a week. Counsel for VicForests also advised that operations would not recommence unless there was an instruction to do so from VicForests, and that there would be no such instruction pending my determination of WFC’s summons.
Interlocutory injunctions principles—
The principles relevant to an application for an interlocutory injunction were not in dispute. Whether to grant interlocutory injunctive relief is a matter of discretion. In the exercise of that discretion, the Court needs to be satisfied that there is a serious question to be tried, and that the balance of convenience favours granting the injunction.[6]
[6]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65, [4]; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J).
The two inquiries are interrelated. The Court will be more inclined to grant an interlocutory injunction that will have serious practical effects for the defendant and third parties where the plaintiff has demonstrated strong prospects of success.
The Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party which failed to establish its right at the trial, or in failing to grant an injunction to a party who succeeded at trial.[7]
[7]Bradto, [35].
Code of Practice for Timber Production 2014 (as amended 2022)
Section 46 of the Timber Act requires VicForests, and any other person undertaking timber harvesting operations to comply with any relevant Code of Practice relating to timber harvesting. It was not in dispute that the Code of Practice for Timber Production 2014 (as amended 2022) (Code), incorporating the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests (Standards), is a relevant Code of Practice for the purposes of s 46.
The Timber Act defines ‘timber harvesting operations’ to mean certain activities carried out by VicForests or by any other person or body, including:[8]
[8]Timber Act, s 3 (definition of ‘timber harvesting operations’).
(a) for the primary purpose of the sale, or the processing and sale—
(i) felling or cutting trees or parts of trees;
(ii) taking or removing timber;
(iii) delivering timber to a buyer or transporting to a place for collection by a buyer or sale to a buyer;
(iv) any works, including road works, ancillary to any of the activities referred to in subparagraphs (i) to (iii); or
…
This definition encompasses VicForests’ activities when taking and removing timber that has been allocated to VicForests under the Timber Act. It also covers taking and removing unallocated timber in State forests that is ‘forest produce’ for the purposes of the Forests Act.[9] As a result, the Code applies to community forestry operations under a forest produce licence issued under s 52 of the Forests Act. As the managing authority, VicForests must comply with the Code in planning, managing and monitoring commercial timber harvesting activities carried out under a licence. In addition, a licensee such as Tiley Industries is a harvesting entity, and must comply with the Code in carrying out timber harvesting operations in State forests.[10]
[9]Timber Act, s 3 (definitions of ‘timber harvesting operations’ and ‘timber resources’); Forests Act, s 3(1) (definition of ‘forest produce’).
[10]In addition to s 46(d) of the Timber Act, it is a condition of the forest produce licences held by Tiley Industries that it must comply with the Code: see Forests (Licences and Permits) Regulations 2019 (Vic), reg 11.
The Code’s scope is set out in s 1.2.4, as follows:
The Code applies to the planning and conducting of all commercial timber production and timber harvesting operations on both public land and private land in Victoria. The Code does not apply to the collection or production of firewood for domestic use. Any haulage, road construction, significant road improvement operations or road maintenance works, tending, regeneration or rehabilitation activities conducted in association with a timber harvesting operation are by definition, also a timber harvesting operation. The provisions of this Code apply to all timber harvesting operations, unless the provision expressly excludes specified timber harvesting operations from its operation.
The Code applies to ‘the managing authority, harvesting entities and operators’.[11] The Glossary defines the ‘managing authority’ to be ‘a person or body responsible for the planning and management of a timber harvesting operation’. In State forests, and hence in this case, the managing authority is VicForests. A ‘harvesting entity’ is defined to be a person or body responsible for conducting a timber harvesting operation. Tiley Industries is the harvesting entity in Silver Queen.
[11]Code of Practice for Timber Production 2014 (as amended 2022), s 1.2.6.
Chapter 2 of the Code applies to timber harvesting operations in State forests.[12] Section 2.2 concerns environmental values in State forests, and includes s 2.2.2 which deals with the conservation of biodiversity. The first and most relevant of the Operational Goals set out in s 2.2.2 is:
Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and management.
[12]Chapter 3 applies to private native forests, and Chapter 4 applies to plantations.
Section 2.2.2 then sets out mandatory actions to be taken in order to achieve each of the Operational Goals. In relation to the first Operational Goal, the following mandatory actions are prescribed:
Mandatory Actions
Addressing biodiversity conservation risks considering scientific knowledge
2.2.2.1 Planning 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.
2.2.2.4 During 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.
2.2.2.6Ensure chemical use is appropriate to the circumstances and provides for the maintenance of biodiversity.
2.2.2.7 Rainforest communities must not be harvested.
The Glossary to the Code includes a definition of the precautionary principle:
‘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).
For the purposes of s 2.2.2.1 of the Code, the biodiversity conservation measures specified in the Standards include cl 4.2.1, which provides for detection-based management of the fauna listed in Table 13 and the flora listed in Table 14 of Appendix 1 to the Standards.
It is now settled that s 2.2.2.2 of the Code means that VicForests must always apply the precautionary principle to the conservation of biodiversity values, including when planning and conducting timber harvesting operations. This involves two inquiries — (a) are there threats of serious or irreversible harm of environmental damage, (b) about which there is a lack of scientific certainty? If the answer to both of these inquiries is ‘yes’, VicForests should not delay taking proportionate measures to prevent environmental degradation.[13]
[13]Environment East Gippsland Inc v VicForests (No 4) [2022] VSC 668, [7](1), [130] (EEG No 4); VicForests v Environment East Gippsland Inc [2023] VSCA 159, [182]–[186] (EEG Appeal).
The precautionary principle will usually be engaged where proposed timber harvesting operations may affect one or more threatened species of fauna or flora — that is, species that have been identified to be at risk of extinction. The engagement of the principle does not depend on proof that the particular timber harvesting operation presents a threat to the viability of the species.[14] In order to apply the precautionary principle to the conservation of a threatened species, it is generally necessary to know whether and where the species is present in the forest in which timber harvesting operations are proposed.
[14]EEG No 4, [184]–[190], [235]–[239].
It is also settled that s 2.2.2.4 of the Code is a mandatory action that requires more of VicForests than compliance with the prescriptions in cl 4.2.1 and Tables 13 and 14 of the Standards. It requires VicForests, during planning, to identify whether and where the biodiversity values — that is, the species — listed in the first column of Tables 13 and 14 are present in a coupe, before undertaking timber harvesting operations in the coupe. VicForests’ obligations under s 2.2.2.4 are in addition to its obligations, under s 2.2.2.1 of the Code and cl 4.2.1 of the Standards, to apply the Table 13 and 14 prescriptions.[15]
[15]EEG No 4, [7](2) and [152]; EEG Appeal, [195]–[198].
At trial, there may be a question about the application of s 2.2.2 of the Code to a harvesting entity, such as Tiley Industries, which is not also the managing authority for a coupe and is not responsible for planning and managing the timber harvesting operations in the coupe. At this stage of the proceeding, I accept that it is arguable that both ss 2.2.2.2 and 2.2.2.4 apply to both the planning and the conduct of timber harvesting operations in Silver Queen.
Following the Court of Appeal’s recent judgment in VicForests v Environment East Gippsland Inc,[16] VicForests reviewed its capacity to survey for species listed in Tables 13 and 14 of the Standards or listed as threatened under the Flora and Fauna Guarantee Act 1988 (Vic) (FFG Act) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). VicForests’ management prepared a document entitled VicForests Species Risk Assessment Review (Species Review), which was presented to VicForests’ August 2023 board meeting.[17] The Species Review concluded:[18]
Due to the total number of species that require a survey, and knowledge gaps about a large number of these, a survey program to detect threatened species on proposed coupes is highly problematic for VicForests. This creates risk around VicForests ability to demonstrate compliance with sections 2.2.2.2 and 2.2.2.4 of the Code particularly in the East of the State where operations are relatively more intensive than Community Forestry operations.
This issue applies to all ’Timber Harvesting Operations’ as described in the Context section above. However, there may be conflict between these requirements and requirements in relation to the road rehabilitation and regeneration works. There are obligations under the Code to undertake these rehabilitation and regeneration activities or risk committing an offence under the [Timber] Act.
While it could be expected that some threatened species would be dealt with adequately through pre-harvest surveys, there are certainly circumstances where threatened species surveys would be required before rehabilitation or regeneration activities (i.e. “timber harvesting operations”) are undertaken.
If VicForests has no reasonable means to comply with section 2.2.2.4 of the Code and that leads to an inability to meet other Code obligations (primarily relating to rehabilitation and regeneration) then an alternative mechanism, provided by DEECA/Government, is required to enable these works, at a minimum to be completed.
[16][2023] VSCA 159.
[17]First Gunn affidavit, [78]–[81] and exhibit JMG-1, 547–566.
[18]First Gunn affidavit, JMG-1, 556.
Two options were identified, as follows:[19]
[19]First Gunn affidavit, JMG-1, 556–7.
Option 1: Cease all operations state wide
Cease all harvesting, roading, tending and regeneration operations across VicForests business. Note, “tending” encompasses thinning and selective tree harvesting.
Noting the inclusion of “regeneration”, Management considers that regeneration activities that can be argued to have little, if any, disturbance impact, such as seed sowing or planting, should be permissible.
Beyond sowing/planting, it would be necessary for Government to determine how VicForests’ regeneration and rehabilitation responsibilities, can be undertaken.
Option 2: Cease operations in the East
Cease all harvesting, roading, tending and regeneration operations across the Allocation Order area.
This would likely not include sowing or planting, for the reasons outlined above.
It would be necessary for Government to determine how VicForests’ regeneration and rehabilitation responsibilities, in particular, could be undertaken.
Community Forestry operations would continue with an increased survey focus, however there remains an injunction risk that would probably lead to full cessation of harvesting and, potentially retrieval of felled timber, should that risk crystallise. This risk is associated with failing to identify any ‘threatened’ value that may be present on a coupe and apply appropriate protections.
VicForests’ management recommended Option 2. The board of VicForests accepted this recommendation at its meeting on 16 August 2023, resolving to accept the Chief Executive Officer’s recommendations to no longer conduct timber harvesting operations and continue the community forestry operations.
The logic of this decision is hard to follow. The identity of the harvesting entity does not affect VicForests’ obligations under ss 2.2.2.2 and 2.2.2.4 of the Code to survey for threatened species when planning timber harvesting operations in State forests. In relation to the application of the precautionary principle under s 2.2.2.2, it is generally necessary to know whether and where a threatened species is present in a coupe in order to take a precautionary approach to its conservation. Section 2.2.2.4 imposes an inflexible obligation on VicForests, during planning, to identify whether and where the biodiversity values listed in Tables 13 and 14 of the Standards are present in a coupe. The obligation under s 2.2.2.4 does not depend on the nature of the proposed timber harvesting operation or who is to conduct it.
Standing
In order to have standing to seek public law remedies to enforce compliance with the Code, WFC must demonstrate that it has a special interest in the subject matter of the proceeding, different from that of the public at large.[20] The subject matter of this proceeding is the lawfulness of certain timber harvesting operations in the Wombat State Forest. The issue for determination is whether the timber harvesting operations in Silver Queen and the other coupes identified in WFC’s amended writ comply with certain environmental prescriptions in the Code.
[20]Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530–1 (Gibbs J); VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143, [60](b).
While reserving its position, VicForests did not dispute that there is a serious question to be tried that WFC has standing in relation to timber harvesting operations in coupes in the Wombat State Forest. On the basis of the matters set out in Ms Osborne’s affidavit,[21] I am satisfied that there is serious question to be tried that WFC has a special interest in the lawfulness of timber harvesting operations in the Wombat State Forest, specifically whether the timber harvesting operations that have been commenced in Silver Queen comply with ss 2.2.2.2 and 2.2.2.4 of the Code.
[21]Affidavit of Gayle Osborne dated 12 September 2023, [5]–[18] (Osborne affidavit).
Serious question to be tried
No surveys of Silver Queen have been conducted by the Department of Energy, Environment and Climate Action (DEECA)[22] under its Forest Protection Survey Program.[23]
[22]Formerly the Department of Environment, Land, Water and Planning or DELWP.
[23]Osborne affidavit, [21]–[23], Exhibit GO-1, 30–1.
WFC contended that VicForests had not undertaken surveys necessary to identify whether and where a range of fauna and flora listed in Tables 13 and 14 of the Standards are present in Silver Queen, as required by s 2.2.2.4 of the Code. It also said that VicForests and Tiley Industries were not applying the precautionary principle in relation to those species, and several other threatened species not listed in the Standards, as required by s 2.2.2.2 of the Code.
In relation to fauna, WFC said that VicForests had not met its obligation under s 2.2.2.4 to survey for:
(a) spot-tailed quolls;
(b) three listed forest owls — the powerful owl, the masked owl, and the sooty owl; and
(c) four listed reptiles — the mountain dragon, the four-toed skink, the samphire skink, and the woodland blind snake.
All of these species are listed in Table 13 of the Standards.
WFC also contended that VicForests had failed to survey for the mountain skink, a species of lizard that is listed as endangered under both the FFG Act and EPBC Act. It argued that, although the mountain skink is not listed in Table 13 of the Standards, s 2.2.2.2 of the Code requires the precautionary principle to be applied to its conservation.
In relation to flora, WFC challenged the adequacy of VicForests’ surveys for common spider-orchids and creeping grevillea, both listed in Table 14 of the Standards. It also contended that VicForests and Tiley Industries were not applying the precautionary principle in relation to the wombat bush-pea and the spotted hyacinth orchid, which are respectively listed as vulnerable and endangered under the FFG Act.
WFC relied on three reports prepared by an expert ecologist, Associate Professor Grant Wardell-Johnson, as follows:
(a) a report dated 12 September 2023 setting out survey methods appropriate for detection of spot-tailed quolls (Quoll survey report);
(b) a report dated 12 September 2023 setting out survey methods appropriate for detection of the powerful owl, the sooty owl, and the masked owl (Owl survey report); and
(c) a report dated 14 September 2023 setting out survey methods appropriate for detection of reptiles, and providing Associate Professor Wardell-Johnson’s opinion as to whether the windthrown tree removal operations depicted at Figure 2 should be conducted if the appropriate surveys are not carried out (General report).
In the following paragraphs I consider in turn whether WFC has established a serious question to be tried in relation to spot-tailed quolls, forest owls, reptiles, and the identified species of flora.
Spot-tailed quolls
The spot-tailed quoll (Dasyuris maculatus maculatus) is listed as endangered under both the FFG Act and the EPBC Act. It is also listed in Table 13 of the Standards, which requires the application of a protection area of 500 hectares and a management area of 1000 hectares for all quoll records in State forest throughout Victoria. The location of the protection area and management area is to be based on protecting preferred habitat features for quolls, with a protection area of at least 200 metres around den and latrine sites.
According to Associate Professor Wardell-Johnson:[24]
At the time of European invasion, the STQ was thought to occur across 60% of Victoria, corresponding with the distribution of forests dominated by medium to tall eucalypts and centred around the Great Dividing Range. The present range of the species in Victoria is believed to have at least halved and is highly disjunct (Mansergh 1984). It is most likely extinct from Wilsons Promontory, with the last record from 1960. There have been no records from the Macedon Ranges, north-west of Melbourne for several decades, and records from the Otway Ranges and the Mount Eccles — Lake Condah area in south-western Victoria are now rare (Backhouse 2003). However, they are regularly recorded in East Gippsland, particularly the upper Snowy River and tributaries, and the Errinundra Plateau (Mansergh 1995; Nelson 2007).
[24]Quoll survey report, [70].
Associate Professor Wardell-Johnson outlined six acceptable survey approaches for identifying the presence or absence of spot-tailed quolls: camera trapping, hair-tubing, scats, cage-trapping, road kills and footprints. He identified camera trapping and hair-tubing as the most effective and able to provide scientifically valid and reliable data upon which to make management decisions. He said that it is easier to demonstrate presence than it is to demonstrate absence, so it is necessary to survey with some intensity in order to demonstrate that a species is not present. In relation to camera trapping, he recommended two camera traps per 100 hectares over a total area of 1,000 hectares, set for 24-hour operation over at least three weeks. In relation to hair tubes, he recommended at least 30 widely spaced hair-tubes per 100 hectare sample area, with multiple sample areas surveyed within any 1,000 hectare area where a high probability of detection is likely.[25]
[25]Quoll survey report, [72]–[80].
Associate Professor Wardell-Johnson’s opinion is that the optimum time to carry out these surveys is between April/May and August, which coincides with a peak of activity associated with the breeding season. Spot-tailed quolls are hardest to detect between September and December, before dispersal of their young.[26]
[26]Quoll survey report, [81]–[82].
VicForests conducted a drone survey of Silver Queen between 28 and 29 April 2023, which detected numerous arboreal mammals. However, VicForests did not contend that this survey was reasonably likely to detect spot-tailed quolls, and accepted that it had not surveyed the coupe for that species. It said that it was not necessary to survey the coupe for spot-tailed quolls because the last detections of that species anywhere in the Wombat State Forest were recorded in 1992, and there was no reason to think that they were likely to be present now.
WFC relied on the following paragraphs of Associate Professor Wardell-Johnson’s Quoll survey report:[27]
The east and south of Victoria in relatively higher rainfall zones (i.e., above about 600 mm MAR) are now the major hotspots for STQs. These are the areas which should be targeted for survey, whenever logging operations are planned. It is recommended that areas of at least 1000 ha be surveyed intensively, where the planned coupe is at the approximate centre of the survey area. Further, survey should be carried out for the appropriate time and in the appropriate season (as above).
Based on Victorian detections post 1980 (which have concentrated in the east, south and south-west, corresponding with areas receiving > 600 mm MAR - mean annual rainfall), all medium to high rainfall FMAs should be surveyed as part of any pre-planning coupe activity associated with potential logging activity. These include North-East, East Gippsland, Central Gippsland, Tambo, Central, Otway, Dandenong, Benalla-Mansfield, Midlands, Bendigo, Horsham, and Portland FMAs. Based on the paucity of recent detections Mildura, and Mid Murray FMAs are unlikely to include viable populations of this species.
[27]Quoll survey report, [86]–[87].
VicForests has not surveyed Silver Queen and the surrounding area for spot-tailed quolls in accordance with one of the survey methods recommended by Associate Professor Wardell-Johnson. However, I am not convinced that there is any real prospect that quolls are present in the Wombat State Forest, given that none have been seen in the area for more than 30 years. I have considered Associate Professor Wardell-Johnson’s opinion that the area should be surveyed based on detections since 1980 and mean annual rainfall. That opinion, without further explanation, does not persuade me that there is any more than a faint hope of detecting spot-tailed quolls in the Wombat State Forest, by any survey method. On the current state of the evidence I would not have granted interlocutory injunctions based on the failure to survey for spot-tailed quolls.
Forest owls
WFC identified three species of large forest owls that it said might be present in Silver Queen, and should have been the subject of surveys during planning for timber harvesting in the coupe. These three species are:
(a) the powerful owl (Ninox strenua), listed as vulnerable under the FFG Act;
(b) the sooty owl (Tyto tenebricosa), listed as endangered under the FFG Act; and
(c) the masked owl (Tyto novaehollandiae), listed as critically endangered under the FFG Act.
All three species are listed in Table 13 of the Standards, each with their own prescriptions for protection areas and management areas within certain radii of nesting and roosting sites. None are listed threatened species under the EPBC Act.
According to Ms Osborne, powerful owls have been detected at seven different locations in the Wombat State Forest.[28] The Biodiversity Inspection Report prepared by VicForests for Silver Queen also noted that powerful owls and sooty owls are known in the Wombat forest area.[29]
[28]Osborne affidavit, [18](r)(i).
[29]VicForests, Biodiversity Inspection Report (Report version 1.2, 13 September 2023), exhibited to the First Gunn affidavit, Exhibit JMG-1, 816 (Biodiversity Inspection Report).
VicForests accepted that it was obliged to survey for forest owls in planning and managing the timber harvesting operation in Silver Queen. However, it says no owls were detected in either the drone survey conducted on 28 and 29 April 2023, or a call playback survey on 2 May 2023. In addition, no owl roosts or nest trees were identified during a flora survey undertaken on 11 and 12 September 2023.
WFC argued that these surveys were inadequate to detect whether and where any large forest owls were present within the area surrounding the coupe. It relied on Associate Professor Wardell-Johnson’s opinion that intensive call playback and follow-up searching should be used to survey for large forest owls that may be affected by timber harvesting operations in a coupe.[30] He recommended that:[31]
[In] or near areas foreshadowed to be logged, surveys for forest owls be based on five sessions of call playback on suitable nights between June and October. If owls are detected, follow-up evening dusk watches or morning dawn watches (to listen for an owl calling from near its daytime roost or nest) and daytime searching (for owls and signs of owls) needs to be carried out. These call playback and (where appropriate associated searching activities) should be carried out at ten sites, at least 2 km from one another over an area of approximately 6 km x 6 km, with the proposed coupe approximately near the centre of the survey area. It is essential that follow-up surveys are conducted to pinpoint nest or roost sites, should any large forest owl be detected during the call play back sessions.
[30]Owl survey report, [62]–[80].
[31]Owl survey report, [71].
I accept that WFC has established a serious question to be tried that VicForests has not undertaken surveys that are reasonably likely to identify whether and where these three species of forest owls are present in Silver Queen, as required by s 2.2.2.4 of the Code. Based on Associate Professor Wardell-Johnson’s opinion, the surveys that have been conducted are not sufficient to establish the absence of forest owls from the coupe. In particular, the single call playback survey in early May does not meet the recommendation of five sessions of call playback on suitable nights between June and October. As I understand Associate Professor Wardell-Johnson’s Owl survey report, his opinion is there is a less than 20% chance of detecting the presence of large forest owls by a single call playback survey conducted outside the optimal survey period.[32]
[32]Owl survey report, [69].
This conclusion is not altered by the evidence that the contractor who conducted the flora survey in September 2023 was asked to look for habitat and signs of forest owls, among numerous other species. This is not the primary method for detecting the presence of forest owls recommended by Associate Professor Wardell-Johnson, who advises using daytime searching as a follow-up when owls have been detected through call playback. I note that the survey was described as a ‘general flora survey’ in the Biodiversity Inspection Report for Silver Queen, and was not relied on in that document as a survey for forest owls.[33] In addition, the contractor’s flora survey report was not included in the evidence.
[33]First Gunn affidavit, JMG-1, 815–6.
Reptiles
According to Associate Professor Wardell-Johnson, coarse woody debris, comprising sound and rotting logs and stumps, provides habitat for an array of forest floor vertebrates, including reptiles, and has been shown to increase their abundance.[34] He identified five species of reptile in the Midlands FMA that are dependent on coarse woody debris for shelter and habitat: the four-toed skink, the mountain dragon, the samphire skink, the woodland blind snake, and the mountain skink.[35]
[34]General report, [33].
[35]General report, [35].
Taking each of these species in turn:
(a) The four-toed skink (Hemiergis peronii) is listed in Table 13 of the Standards, which requires a management area to be applied over a population in the Midlands FMA, and a site inspection and detailed planning to ensure the species is adequately protected during timber harvesting operations. The species is not listed under either the FFG Act or the EPBC Act.
(b) The mountain dragon (Rankinia diemensis) is also listed in Table 13 of the Standards, with the same prescribed management actions as for the four-toed skink. Only the Grampians form of the mountain dragon is listed as critically endangered under the FFG Act. It is not a listed threatened species under the EPBC Act.
(c) The samphire skink (Morethia adelaidensis) is listed in Table 13 of the Standards, with the same prescribed management actions in the Midlands FMA as for the four-toed skink and the mountain dragon. The species is listed as endangered under the FFG Act, but is not listed under the EPBC Act.
(d) The woodland blind snake (Anilios proximus) is also listed in Table 13 of the Standards. A population of these snakes requires the same management actions as are prescribed for the three lizards already mentioned. The species is not listed under either the FFG Act or the EPBC Act.
(e) The mountain skink (Liopholis montana) is not listed in Table 13 of the Standards. However, it is listed as endangered under both the FFG Act and the EPBC Act.
Two of these five species are known to be present in the Wombat State Forest. Ms Osborne deposed that she is aware that the mountain dragon and five populations of the mountain skink have been recorded in the Wombat State Forest.[36] Until recently, the mountain skink was not thought to occur west of the Upper Yarra Valley. In 2020 three scientists discovered a population of the species in the Wombat State Forest and, since then, WFC members have searched for and located four more populations of the mountain skink. In mid-2023, DEECA proposed to establish a protection area for these recently discovered populations, covering a large area south of Trentham.[37] Silver Queen is about six kilometres north-west of this proposed protection area.
[36]Osborne affidavit, [18](r)(ii), [33]–[34].
[37]First Gunn affidavit, [165]–[167].
Associate Professor Wardell-Johnson outlined several survey methods that he considered appropriate to identify populations of these reptile species, based on the Commonwealth Department of Sustainability, Environment, Water, Population and Communities’ Survey guidelines for Australia’s threatened reptiles, published in 2011:[38]
Seven survey detection methods are provided by DSEWPC (2011 b). These include Diurnal hand searches; Visual searches; Nocturnal spotlight searches; Pitfall traps; Other trapping techniques; Aquatic surveys; and Quantitative surveys. Note that some species require specific targeted survey methods. General surveys for vertebrates including reptiles (e.g., Wardell-Johnson 1982), include detailed searching, and pitfall trapping with drift fences; the two methods yielding greatest detection success. Levels of sampling effort to provide reliable and valid data as well as season, timing and level of replication are all important considerations in the field component of this survey work (see DSEWPC 2011a, b).
In short, considerable effort is required to reliably detect the Threatened reptile fauna likely to occur in Wombat State Forest. However, this survey effort is warranted, given the high level of fragmentation, high proportion of hostile environments fashioned by industry, and thus the high level of importance of remaining remnants and remaining CWD components.
[38]General report, [50]–[51].
VicForests has not surveyed Silver Queen for reptiles in general, or for any of these five species of reptile in particular. On the current state of the evidence, it is unclear why reptiles were not included in its surveys of the coupe.
Mr Gunn provided the following explanation of how VicForests determines what surveys should be done during planning:[39]
[39]First Gunn affidavit, [67]–[71].
To help guide where and when to do surveys, VicForests uses a range of information and datasets including, habitat distribution models, species observation data, conservation advice and other relevant literature. This system has enhanced a system used by the Forest Protection Survey Program. Foresters consult with VicForests’ Biodiversity team to finalise which surveys will be undertaken. Following this, a habitat assessment may be undertaken to determine if key habitat features for a specific species are present in the coupe.
Coupe reconnaissance: Desktop assessment
All community forestry coupes undergo a desktop-based assessment during the coupe reconnaissance process. This process involves the analysis of spatial data records including:
a. existing habitat or threatened species records within or adjacent to the coupe; and
b. modelled threatened or rare forest or plant communities; and
c. mapped forest type and species mix; and
d. certain forest management zones or dedicated reserves that are known to contain threatened species populations or habitat within or adjacent to the coupe.
Coupe reconnaissance: Coupe transects or field assessments
In addition to and in support of the desktop assessment, coupe transects or field assessments (Field Assessments) are undertaken on the ground to verify the existence of mapped or modelled values highlighted in a desktop assessment. Foresters conducting Field Assessments look for a range of values such as an owl roost or nest trees, Spot-tailed Quoll den or latrine sites, bird nests and large hollow-bearing trees.
Observations from Field Assessments may trigger further targeted species habitat surveys. For example targeted Wombat Bush-pea surveys.
The coupe reconnaissance process is intended to provide a system of checks and balances by pulling together spatial and on-ground information to identify conservation values and address protections and prescriptions contained in the regulatory framework governing VicForests’ operations. …
VicForests submitted that it had determined which species surveys to conduct based on ‘multiple inputs’ and, unless WFC could demonstrate that there was some deficiency with this approach, there was no serious question to be tried that VicForests should have conducted surveys for the five threatened reptile species. In oral argument, it likened the desktop assessment to a computer algorithm.
WFC responded to this submission in three ways. The first was to cite Mortimer J’s finding in Friends of Leadbeater’s Possum Inc v VicForests (No 4)[40] that modelling was inadequate as a primary method of predicting where threatened species might be present, and that on the ground searches and surveys were clearly more reliable. The second was to point out that the expert evidence of Associate Professor Wardell-Johnson as to appropriate survey methods did not involve modelling. The third was WFC’s overarching submission that ‘if you don’t look, you won’t find’, so that a precautionary approach should be taken to surveying in the event of uncertainty.
[40][2020] FCA 704, [462].
I accept — as I have in relation to the spot-tailed quoll — that VicForests must make judgments about what surveys should be conducted when it is planning timber harvesting operations in a coupe. It need not survey for a species where there is no real prospect that it is present. However, Mr Gunn’s general outline of VicForests’ approach to this question did not give the detail of the ‘multiple inputs’ said to have informed its judgment that it need not look for threatened reptiles in Silver Queen, and did not explain its decision not to conduct any reptile survey in the coupe. The available evidence suggests that there are likely to be reptiles living in the coarse woody debris across the coupe, and that at least two threatened reptile species (the mountain dragon and the mountain skink) are known to occur in the Wombat State Forest. In other words, there is a real prospect that these species may be present in the coupe.
I consider that there is a serious question to be tried that the planned timber harvesting operations in Silver Queen do not currently meet the requirements of ss 2.2.2.2 and 2.2.2.4 of the Code, in relation to the five threatened reptile species identified by Associate Professor Wardell-Johnson. On the evidence before me, there is particular need for a precautionary approach to be taken to surveying for the endangered mountain skink, which was until 2020 not thought to occur in the region.
Flora
WFC’s evidence identified four species of flora that it said would likely be damaged or destroyed by timber harvesting operations in Silver Queen:
(a) The wombat bush-pea (Pultenaea reflexifolia) is listed as vulnerable under the FFG Act. It is not listed in either Table 14 of the Standards or under the EPBC Act.
(b) The creeping grevillea (Grevillea repens) is listed in Table 14, with the prescribed management action for the Midlands FMA of avoiding disturbance to populations. It is also listed as endangered under the FFG Act, but is not listed under the EPBC Act.
(c) The common spider-orchid (Caladenia patersonii) is listed in Table 14 of the Standards, which prescribes avoiding disturbance to populations as management action for the Midlands FMA. It is not listed under either the FFG Act or the EPBC Act.
(d) The spotted hyacinth-orchid (Dipodium pardalinum) is listed as endangered under the FFG Act. It is not listed in Table 14 or under the EPBC Act.
Two flora surveys were conducted during VicForests’ planning for the coupe. The first, on 1 May 2023, identified numerous wombat bush-peas within the coupe. The second, on 11 and 12 September 2023, also identified that wombat bush-pea is abundant in the coupe. Mr Gunn’s evidence was that the extraction track network had been pre-planned to avoid, as much as possible, areas of high populations of wombat bush-pea. The flora surveys did not identify any other threatened flora within Silver Queen, although creeping grevillea has been found nearby in coupe 193-526-0001 known as ‘Sample’.
On the present state of the evidence, there is not a serious question to be tried that VicForests has failed to survey the coupe for threatened flora, as required by ss 2.2.2.2 and 2.2.2.4 of the Code. There was no expert evidence relied on by any party about appropriate survey methods or measures that should be taken for the conservation of the identified species of flora.
Balance of convenience
WFC submitted that the balance of convenience favoured granting the interlocutory injunctions it sought, based on the expert evidence of Associate Professor Wardell-Johnson. It relied on his opinion that, without effective surveying to identify the several identified threatened species, timber harvesting operations in Silver Queen might cause irreparable harm to those species. It submitted that appropriate retention levels for windthrown logs could only be determined after appropriate surveys had been conducted.
WFC acknowledged that Tiley Industries is a small family business, and accepted that an injunction would likely involve some cost and disruption to the business. At the same time, it referred me to a passage in Mr Gunn’s affidavit that suggested that Mr Tiley had agreed to work in Silver Queen at some additional cost to the business, rather than to generate profit.[41] WFC also said that the windthrown logs had been on the ground since 2021, and could be extracted at a later time if its claim for permanent injunctions failed.
[41]First Gunn affidavit, [56].
VicForests raised two matters that it said shifted the balance of convenience against granting injunctions. The first and most significant was that a purpose of the planned operations in Silver Queen is to ‘mitigate fire risk to communities through management of timber and debris generated from storm events’,[42] which VicForests said would further the objectives of DEECA and the area’s traditional owners. The second matter was the inevitable disruption to Tiley Industries’ business, in circumstances where there may not be another coupe available to them to harvest.
[42]First Gunn affidavit, [36], quoting VicForests, Forest Recovery Timber Utilisation Plan (March 2022), 3, exhibited to the First Gunn affidavit, Exhibit JMG-1, 536.
Tiley Industries was joined as a defendant to the proceeding on 18 September 2023, and had not had time to file any evidence before the hearing on 21 September 2023. It submitted that, even in the absence of detailed evidence, I should infer that an injunction would cause it some loss, disruption and inconvenience. As noted, counsel for Tiley Industries advised that he was instructed that operations in the coupe had ceased about two weeks earlier, and that no operations were taking place at the time of the hearing.
WFC challenged the evidentiary basis for VicForests’ argument that the timber harvesting operations in Silver Queen were important to mitigate fire risk in the Wombat State Forest. It characterised the Timber Utilisation Plan relied on by VicForests as no more than a list of coupes. WFC referred to the fourth edition of the Overall Fuel Hazard Assessment Guide,[43] published by the then Department of Sustainability and Environment in July 2010.[44] WFC pointed out that the Fuel Hazard Assessment Guide is for assessing fine fuels only, and does not assess coarse fuels such as logs.
[43]Francis Hines, Kevin G Tolhurst, Andrew AG Wilson and Gregory J McCarthy, Department of Sustainability and Environment, Overall fuel hazard assessment guide (Report no. 82, 4th ed., July 2010) (Fuel Hazard Assessment Guide). The Fuel Hazard Assessment Guide is referenced in the Code as the method for assessing fuel hazard rating in Asset Protection Zones, Bushfire Management Zones, and Landscape Management Zones: see Code, Glossary (definition of ‘fuel hazard rating’), and ss 5.6.1.4, 5.6.1.5, and 5.6.1.6.
[44]A predecessor of DEECA.
Consideration
As Mr Gunn explained, windthrow ‘is a natural way for the forest to create coarse woody debris’.[45] Severe storms in June and October 2021 resulted in areas with much higher than average levels of coarse woody debris across the Wombat State Forest, including in Silver Queen.
[45]First Gunn affidavit, [155].
Associate Professor Wardell-Johnson provided the following outline of the ecological significance of coarse woody debris in a forest:[46]
Coarse woody debris (CWD) can be defined as: ‘Sound and rotting logs and stumps that provide habitat for plants, animals and insects and a source of nutrients for soil development. This material generally greater than 8–10 cm in diameter.’ (Stevens 1997). CWD improves thermal conditions (by moderating temperature extremes and raising micro-scale moisture levels), as well as foraging opportunities and cover from predators (Fischer et al., 2004).
CWD provides habitat for an array of forest-floor vertebrates (Sullivan et al. 2012). Because intensive logging reduces abundance of many vertebrates, CWD helps to maintain abundance and diversity of forest vertebrates on or near logged sites. Habitat structures of large piles and windrows of woody debris on clear-cuts significantly increases abundance and species diversity compared with sites from which they were removed. Large-scale CWD structures as piles or windrows have clear conservation implications for vertebrates in commercial forest landscapes (Sullivan et al. 2012).
Adding CWD increased reptile abundance significantly after only 4 years (Manning et al. 2013). The spatial pattern and location of CWD distribution also significantly affected reptile abundance. Manning et al. (2013) concluded that adding CWD can short-cut a 100–200 year barrier to ecosystem restoration. By distributing CWD in particular patterns and places in the landscape, and in combination with different grazing levels, conservation managers can improve effectiveness of restoration programs.
Numerous reptiles and frogs are dependent upon CWD for shelter and habitat. These include at least five species of reptile (i.e., Four-toed Skink - Hemiergis peronii, Mountain Dragon - Rankinia diemensis, Samphire Skink - Morethia adelaidensis, and Woodland Blind Snake - Anilios Proximus, and Mountain Skink - Liopholis montana) in the Midlands FMA.
[46]General report, [32]–[35].
At present the evidence indicates that the planned timber harvesting operation in Silver Queen involves the wholesale removal of logs from windthrown timber in the area to be harvested. The nominated silvicultural system in the coupe plan is ‘Clearfelling — Salvage’, and the harvesting requirements stipulated in the plan are ‘to ensure that all saleable timber is extracted from the treatment area’.[47] The coupe plan does not appear to require the retention of any coarse woody debris in the harvest area, and the photographs taken in the coupe on 3 September 2023 suggest that little if any is being retained.[48] This evidence conflicts with Mr Gunn’s general statement that ‘VicForests’ operations do not remove all the logs from a site and leave a range of coarse woody debris in situ’.[49]
[47]See [11]–[12] above.
[48]See Figure 2 at [17] above.
[49]First Gunn affidavit, [156].
Associate Professor Wardell-Johnson was asked to provide his opinion as to whether windthrown tree removal operations, as shown in the photographs above, should be conducted if the surveys he recommended had not been conducted. His opinion was as follows:[50]
In short, windthrown tree removal operations as depicted in the photographs provided to me should not be conducted if surveys of the kind recommended in response to Question one (in relation to reptiles), and in the Expert reports provided on 12th September 2023 (in relation to Quolls and Owls) are not first conducted so that appropriate retention levels can be determined both of CWD and of retained remnants.
Compaction because of operations carried out under moist soil conditions can lead to severe and irreversible environmental damage to these and other species and their habitat (see Wardell-Johnson and Horwitz 2000). Small areas of such damage have in the past been tolerated because of the perceived large areas of relatively intact forest. However, high levels of recent fragmentation (see Wardell-Johnson and Robinson 2022) because of extensive and intensive logging over the last 50 years have changed this situation to one where all remnants and CWD are valuable habitat or habitat components to threatened species. They should not be disturbed if serious and irreversible environmental damage to these species and their environments are to be avoided.
Reptiles (and several species of frogs) use a variety of substrates and shelters, and particularly favour CWD. Hence, windthrows provide valuable habitat for a wide range of reptiles and frogs and should be retained – particularly where it is relatively scarce at the landscape scale.
Given the high levels of fragmentation because of intensive logging and large areas where severe and irreversible damage has been reported, it would not be appropriate to carry out windthrown tree removal operations as depicted in the photographs provided to me, until effective survey has been conducted for the Threatened species that are likely to occur in the area.
The precautionary principle should be enacted when considering surveys, suitable habitat (and hostile environments), and set asides for Threatened species in highly fragmented landscapes. The precautionary principle suggests that management must be aware of whether (or not) there is a high probability of the occurrence of particular Threatened taxa within any remnant areas that are foreshadowed to be salvaged. This implies adequate survey to determine the presence or absence of species with a high degree of certainty. Suitable survey methodology is available for all threatened species to enable an appropriate protocol for pre-logging surveys (see above, and DSEWPC 2011a, b).
[50]General report, [75]–[79].
Earlier in his General report, Associate Professor Wardell-Johnson outlined the likely effects of the timber harvesting operations depicted in the photographs on any large forest owls that might be present in the coupe.[51] He summarised these effects as follows:[52]
In short, the removal of windthrow trees, particularly under moist soil conditions (where the substrate also becomes compacted – compounding the impact of nest sites) is highly likely to cause serious and irreparable damage to large forest owls and their environment in the context of the high level of fragmentation created by the last 50 years of intensive logging carried out extensively in the area. There is a high level of importance of retaining any remaining remnants and CWD components for these species (see Wardell-Johnson and Robinson 2022 for reasoning).
[51]General report, [52]–[66].
[52]General report, [66].
At present, the only evidence available to me is Associate Professor Wardell-Johnson’s opinion that continuing timber harvesting operations in Silver Queen in the absence of adequate surveys for threatened forest owls and reptiles is likely to cause irreparable harm to those species, should they be present. This is a significant consideration in favour of granting interlocutory injunctions for a short period, during which VicForests may arrange for further surveys to be carried out in the coupe and the surrounding area.
I have given careful consideration to VicForests’ contention that it is important for the timber harvesting operation in Silver Queen to continue, in order to mitigate fire risk in the Wombat State Forest. The evidence currently available to me does not support that contention. I note the following:
(a) Coarse woody debris is a naturally occurring component of a forest. Associate Professor Wardell-Johnson’s evidence is that its presence improves thermal conditions, ‘by moderating temperature extremes and raising micro-scale moisture levels’.[53]
[53]General report, [32].
(b) The Fuel Hazard Assessment Guide referenced in the Code focuses on fine fuels as the primary determinant of fire hazard rating, for the reasons explained in the following passage:[54]
[54]Fuel Hazard Assessment Guide, 2.
This guide is for assessing fine fuels that burn in bushfires. Fine fuels are the fuels that burn in the continuous flaming zone at the fire’s edge. They contribute the most to the fire’s rate of spread and flame height. Typically, they are dead plant material, such as leaves, grass, bark and twigs, thinner than 6mm thick, and live plant material thinner than 3mm thick. Once ignited, these fine fuels generally burn out within two minutes.
The Guide does not assess coarse fuels such as logs.[55]
[55]Fuel Hazard Assessment Guide, 7.
(c) The coupe plan and the photographs at Figure 2 indicate that the timber harvesting operations in Silver Queen will extract only logs from windthrown timber. It appears that bark, twigs and leaves from the tree canopies — that is, fine fuels — are removed from the logs before extraction, and will be left behind in the coupe. If that is the case, it is hard to see that the recovery operation will reduce the fine fuel load in the coupe.
(d) The storms that caused higher than usual levels of windthrown timber in the Wombat State Forest occurred two years ago. The fact that the Silver Queen coupe plan was not approved until May 2023, and that work did not commence for another three months, does not indicate that any urgency is associated with the recovery operation.
(e) The injunction will be in force for a period of only five weeks, during which VicForests will have an opportunity to put forward evidence to support its contention that extracting logs from windthrown timber in Silver Queen will mitigate fire risk.
I accept that cessation of timber harvesting operations in Silver Queen will probably cause disruption and inconvenience to the businesses of Tiley Industries and the Kirbys, and may involve some cost to them. Against that, I take into account that the evidence indicates that the Silver Queen operation is outside their usual areas of operation, and is only one aspect of their respective businesses.[56] Indeed, Mr Gunn said that Mr Tiley’s agreement to undertake the work was ‘at some additional cost to himself’ in order to ‘assist in good forest management outcomes’.[57]
[56]First Gunn affidavit, [52]–[60].
[57]First Gunn affidavit, [56].
Overall, I have come to the view that there is a lower risk of injustice involved in granting injunctions to restrain timber harvesting operations in Silver Queen for a short period, during which further surveys may be undertaken. In weighing the balance of convenience, I have had regard to the precautionary principle that is enacted in the Code. I consider that the risk of irreparable harm to threatened forest owl and reptile species outweighs the cost and disruption that may result from ceasing timber harvesting for five weeks.
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