Wotch Inc v VicForests (No 8) - [2021] VSC 268

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 00373

WOTCH INC	Plaintiff
v
VICFORESTS	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2021
DATE OF RULING:	19 May 2021
CASE MAY BE CITED AS:	WOTCH Inc v VicForests (No 8)
MEDIUM NEUTRAL CITATION:	[2021] VSC 268

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PRACTICE AND PROCEDURE — Application to vary interlocutory injunctions — Timber harvesting operations in State forests — Material change of circumstances — Whether regeneration burning contemplated when orders made — Obligation to regenerate harvested coupes under Code of Practice for Timber Production 2014 — Risk of regeneration burning to threatened species and habitat — No material change of circumstances — Enforcement of orders not unjust — Sustainable Forests (Timber) Act 2004 (Vic), s 3.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Watson and C Mintz	Environmental Justice Australia
For the Defendant	F Hudgson	Russell Kennedy Lawyers

HIS HONOUR:

This proceeding concerns the legality of timber harvesting operations by VicForests in native forest coupes inhabited by species listed as threatened under the Flora and Fauna Guarantee Act 1988 (Vic) (‘FFG Act’) which may affect those species.

The bushfires which occurred during the 2019/20 fire season caused significant population and habitat losses for some threatened species. WOTCH alleges that State and Commonwealth bushfire biodiversity responses that are currently underway will contain information and make findings which VicForests must take into account in planning and conducting its timber harvesting operations, and that it is unlawful for VicForests to conduct timber harvesting operations in coupes known by it or the Department of Environment, Land, Water and Planning (‘DELWP’) to contain or be likely to contain threatened species or the habitat of threatened species affected by the bushfires until the impact of the bushfires on those species is fully understood.

Orders have been made in the proceeding which restrain VicForests from conducting timber harvesting operations in certain identified forest coupes. Those interlocutory injunctions were to remain in place until the trial of the proceeding, which is listed to commence on 20 September 2021.

By summons dated 29 March 2021, VicForests has applied to amend two of the orders to allow it to undertake regeneration burning in three coupes.

VicForests argued that when the orders were made WOTCH was seeking to restrain harvesting of timber in the coupes, and that regeneration burning was not expressly canvassed in the applications; under the regulatory regime it is obliged to undertake regeneration activities to ensure biological and ecological characteristics of native flora and fauna within the forests is maintained; and that the regeneration burning which is proposed in the three coupes will meet that obligation and will be undertaken in a way that adequately protects the threatened species and habitat. WOTCH opposed the application and argued there had been no material change of circumstances which rendered enforcement of the earlier orders unjust; and the evidence supported maintenance of the current…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wotch Inc v VicForests (No 8)

Details

AGLC: Wotch Inc v VicForests (No 8) [2021] VSC 268
Case: [2021] VSC 268
Decision Date: 19 May 2021

CaseChat Overview and Summary

In Wotch Inc v VicForests (No 8), Wotch Inc sought to have interlocutory injunctions varied to permit regeneration burning in harvested areas of state forests in Victoria. The injunctions were in place to prevent VicForests from conducting timber harvesting operations that could harm threatened species and their habitat. The dispute was heard in the Supreme Court of Victoria. The central legal issues revolved around whether there had been a material change in circumstances since the initial injunctions were granted, and if the enforcement of the orders would be unjust given the obligations under the Code of Practice for Timber Production 2014.

The court considered whether the obligation to regenerate harvested coupes, as stipulated in the Code of Practice, constituted a material change in circumstances warranting a variation of the injunctions. Wotch Inc argued that the original orders did not contemplate regeneration burning, and that such burning was necessary to comply with the Code. The court found that the obligation to regenerate harvested areas did not amount to a material change in circumstances as it was an obligation that existed at the time the original orders were made. Furthermore, the court held that enforcing the orders would not be unjust given the significant risk to threatened species and their habitat.

Consequently, the court dismissed Wotch Inc's application to vary the interlocutory injunctions. The court was satisfied that there had been no material change of circumstances and that enforcing the orders would not result in an unjust outcome. The court emphasised the importance of protecting threatened species and their habitat and the need to balance this with timber production obligations. The final orders of the court were that the interlocutory injunctions would remain in place, prohibiting VicForests from conducting regeneration burning in the specified areas.

Orders