Plaintiff v Defendant [2010] VSC 335 | Case summary

Plaintiff v Defendant [2010] VSC 335 | Case summary | Zoe

[86]

PERMANENT PROTECTION FOR BROWN MOUNTAIN AREA

Friday, 21 August 2009

The Brumby Labor Government will protect a further 400ha of the Brown Mountain area, including the mountain summit, as part of the establishment of old growth and icon reserves in East Gippsland, Environment Minister Gavin Jennings said today.

Mr Jennings said that the inclusion of the large area around Brown Mountain would form part of a significant, unbroken link between the Errinundra and Snowy River national parks.

'This area of Brown Mountain contains significant natural values, including old growth forests, that will now be protected forever,' Mr Jennings said.

Mr Jennings said the Brumby Labor Government would finalise the establishment of more than 41,000ha of new conservation reserves in East Gippsland, providing an unprecedented level of protection for old growth and icon forests in Victoria.

The 400ha of new protected area at Brown Mountain would be in addition to the 100ha already protected as part of The Gap Scenic Reserve, incorporating the northern slopes of the Mountain.

'This will be a wonderful outcome for the protection of these magnificent forests. However, the Government also recognises that, with the new levels of protection, comes a responsibility to ensure the timber industry has a sustainable supply of timber into the future,' Mr Jennings said.

Mr Jennings said an area containing a number of contentious timber harvesting coupes around Brown Mountain Creek, to the east of Brown Mountain, would remain available to harvesting as they did not meet the standard of old growth warranting inclusion in the reserve.

He said VicForests would be allowed to recommence timber harvesting at Brown Mountain under modified conditions designed to provide greater protection to the area.

Mr Jennings said the significant additional habitat protection measures, including extra wide 100 metre streamside buffers and the protection of hollow-bearing habitat trees identified by biodiversity officers, would be put in place at Brown Mountain Creek area even though no threatened species were found during fauna surveys of the area.

'Biodiversity experts conducted a series of surveys in the area to determine if any threatened species were present', he said.

'The surveys conducted by DSE staff included specific surveys for Long-footed Potoroo and Orbost Spiny Crayfish. They found no threatened species, despite claims to the contrary.'

Mr Jennings said the biodiversity teams did locate a high-density population of Greater Gliders and Yellow-bellied Gliders along Brown Mountain Creek.

'These species are both common across Victoria - and extend throughout the eastern States up to Queensland - and suitable habitat is well represented in conservation reserves in Victoria,' he said.

Mr Jennings said the gliders' presence triggered a DSE review to determine the need for the creation of a Special Protection Zone to protect the species' habitat.

This review was required, under the East Gippsland Forest Management Plan, to consider whether adequate protection is already provided to the gliders' habitat within the existing reserve system.

'In this case DSE found that suitable habitat for the gliders was already adequately protected and that creating a Special Protection Zone was not required,' Mr Jennings said.

'I am confident that the extra streamside buffers, which represent a five-fold increase in the usual buffer width will provide significant protection to the populations identified by the surveys as the majority of animals were found within 100 metres of the creek.'

Mr Jennings acknowledged that, more broadly, the system of conducting pre-logging surveys in proposed harvesting coupes in Victoria needed to be improved and that DSE was working with VicForests - the agency responsible for conducting the surveys - to significantly improve its processes.

'Put simply, there is not enough pre-logging assessments being done and I am committed to doing what I can within my responsibilities to see that situation improve,' he said.

The Brown Mountain Survey Report can be found at: www.dse.vic.gov.au/forests.[\[10\]](#fn10)

[147]

SUMMARY

Publicly owned forest in East Gippsland covers approximately 1 million hectares in a vast, contiguous tract stretching from Bass Strait to the Australian Alps and from south-eastern New South Wales to Central Gippsland. State forest comprises 640 000 ha of this land and has an important role in complementing the management of national parks and other reserves for conservation, recreation and a growing tourism industry. State forest also supplies a third of Victoria's annual sawlog harvest and protects catchments from which local communities draw clean water supplies.

The major challenges addressed in this Plan are to meet a number of conservation and resource use requirements, including the Flora and Fauna Guarantee Act 1988, the National Forest Policy Statement, current sawlog licence commitments to the timber industry and the sustainable yield requirements of the Forests (Timber Harvesting) Act 1990. The strategy used to address these challenges has three main strands:

Conservation guidelines specify minimum levels of planned protection to be provided for natural values in State forest, taking into account the extent of those values in national parks and conservation reserves. They provide a systematic basis for zoning decisions in State forest and therefore introduce stability into the process for balancing conservation with timber production goals.

Forest management zones set priorities and permitted uses in different parts of State forest. The Special Protection Zone will be managed for conservation, and timber harvesting will be excluded. The Special Management Zone will be managed for specific features while catering for timber production under certain conditions. The General Management Zone will cater for a range of uses with timber production as a high priority.

A process for reviewing management strategies and zones will enable progressive refinement of the Plan in response to new information and developments in natural resource management.

This strategy provides a network of protected areas that complements the system of national parks and conservation reserves in East Gippsland, a framework for sustainable use of the forest for timber production and other purposes, and a process for adapting to change in a systematic, orderly manner. In doing so, this Plan will fulfil the major requirements of the National Forest Policy Statement.

Specific initiatives

Conservation of biodiversity

[148]

Minimum levels of protection of 30% to 90% have been set for each of 44 vegetation classes according to their rarity in the landscape. Where conservation reserves do not meet these targets, areas of State forest have been protected to fill the gap.
All heathlands and buffering vegetation of 40 m width have been included in the Special Protection Zone. Potentially species-rich vegetation mosaics, which include the hinterlands of many heathland areas, have also been included in this Zone.
All rainforest stands are protected, the level of protection increasing according to the significance of different rainforest areas. The minimum standard is provided by timber harvesting prescriptions which require that buffers be retained between logging coupes and rainforest. A higher level of protection is provided by linear reserves which include many significant rainforest stands on major rivers and streams. The highest level of protection is provided in sub-catchment areas. Overall, at least 59% of rainforest, including the most significant stands, will be protected by buffers of 100 m width or larger.
Formal reservation is provided for at least 90% of the Mixed Forests identified in the FMA. Mixed Forests are the forest stands where a eucalypt canopy is emergent above an understorey of rainforest species.
A strategy for conserving rare and threatened plant species is established.
Formal protection is provided for 67% of the total area of old-growth forest, including at least 60% within each Ecological Vegetation Class. Outside formally protected areas, an additional 18% of old-growth forest is protected by virtue of it being unsuitable for timber production. Provision is made for recruitment of old-growth forest so that its total area will increase in the long term.
Conservation guidelines have been established for key threatened and sensitive faunal species in State forest. These include protection of Long-footed Potoroos in accordance with the management strategy for this species, and planned protection for at least 100 pairs of Powerful, Sooty and Masked Owls. Specific strategies are also established for a range of other forest fauna including the Spot-tail Quoll, high density populations of arboreal mammals, forest bats, diurnal raptors, threatened frog species, significant fish populations, rare butterflies and crayfish.
A network of linear reserves of 200 m average width has been designed to maintain resident populations of sensitive fauna such as arboreal mammals, forest bats and hollow-nesting birds across the landscape. These will also facilitate the re-colonisation of areas that are harvested for wood production or burnt by wildfire.
A number of areas in the Special Management Zone will be managed to supply timber while retaining high wildlife values.
The system of sites of biological significance identified by pre-logging flora and fauna surveys between 1983 and 1993 has been reviewed and incorporated into the zoning scheme according to the significance, sensitivity and representation status of values in each site.

[243]

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

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

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

Legal Requirements identifies some of the laws of the State of Victoria or the Commonwealth that may be particularly relevant to an activity. To assist the forest owner and manager, this Code of Practice identifies legislation, regulations and codes that must be observed. The list may not be comprehensive, and obligations may change during the life of this Code. It is the responsibility of the user to ensure that all relevant legal requirements are met.

Guidance provides possible means for achieving Operational Goals or Mandatory Actions, including reference to documents that may assist forest managers. Forest managers and operators are not obliged to conduct any of the actions covered under Guidance. This allows for innovation and advances in technology to provide continual improvement in addressing the requirements of the Code. Failure to undertake any Guidance action does not in itself constitute non-compliance with the Code, however it should be noted that Guidance generally supports or expands upon Mandatory Actions.

DSE has prepared Management Procedures for application on public land, providing practical, detailed operational instructions for specific forest types across Victoria. These Management Procedures are consistent with the Operational Goals and Mandatory Actions of this Code and must be complied with for operations on public land. The Management Procedures are publicly available and are reviewed annually. They incorporate the outcomes of new research or findings of Code audits.[51]

[256]

At the coupe planning and harvesting level, the retention of habitat trees or patches and long-lived understorey elements in appropriate numbers and configurations, and provision for the continuity and replacement of old hollow-bearing trees within the harvestable area, must be allowed for.

Legal requirements

The Catchment and Land Protection Act 1994 requires all landholders to control pest animals and noxious weeds on their property.

The Environment Protection and Biodiversity Conservation Act 1999 includes provisions to protect matters of national environmental significance, including listed threatened species and endangered ecological communities.

The Wildlife Act 1975 contains provisions to protect wildlife and includes requirements relating to control of wildlife species causing damage.

The Flora and Fauna Guarantee Act 1988 includes provisions relating to the handling of protected flora, the determination of Critical Habitat and the making of Interim Conservation Orders.

Guidance

The objective of habitat retention measures is to facilitate the continued occupation or recolonisation by all species that are likely to have occurred in the area prior to timber harvesting through protection of the ecosystem that supports them. Thus, no part of the harvested area will become permanently unsuitable for any species likely to have been resident or a regular visitor to the area before it was harvested.

Opportunities to improve the protection of threatened species or habitat values may include reserving further strategic areas from harvesting, or modifying harvesting and silvicultural techniques to achieve specific conservation objectives.

Where vegetation is retained, consideration should be given to the protection of retained vegetation during harvesting and subsequent management, and the effect of retained vegetation on the growth of future crop trees.

Streamside buffers may both protect water quality and act as a wildlife corridor. However, the need for corridors along or across other topographic features will arise and should be considered in relation to the forest type and fauna present.

When planning and undertaking regeneration burning operations, minimising slash near any retained vegetation (eg. buffer strips, habitat trees or patches or shelterwood one trees) will assist with its survival.[55]

[471]

When Parliament imposes on a functionary a broad duty involving the development and application of policy, to be performed nationally, the fulfilment of which must be subject to many constraints and may be achieved in many different ways, according to the measure allowed to those constraints, but cannot be achieved absolutely, if only because it involves an ideal, detailed supervision by the courts of the manner of performance of the duty is not likely to have been intended. In Wade on Administrative Law, 6th ed, 1988, p 614 it is stated:

A power enables an authority to do what would otherwise be illegal or ineffective. It is always subject to legal limits, and it is safe to assume that Parliament did not intend it to be exercised beyond those limits. A duty, on the other hand, may or may not be legally enforceable. Parliament has recently become fond of imposing duties of a kind which, since they are of a general and indefinite character, are perhaps to be considered as political duties rather than as legal duties which a court could enforce. Many such duties may be found in statutes concerned with social services and nationalisation. Thus the opening words of the National Health Service Act 1977 are: 'It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service... .'

Wade goes on to refer to the statutory duty of the Coal Board of "making supplies of coal available". This is remarkably similar to the language of s 27, with its obligation laid upon Telecom to "ensure... the service is reasonably accessible". Wade gives other examples, and comments (p 615): "Only in the unlikely event of its making total default would any of the above-mentioned authorities be at risk of legal compulsion in respect of its general duties."

The words of Brennan J in Re Citizen Limbo (1989) 92 ALR 81 at 82; 64 ALJR 241 at 242, though written in a different context, are apposite:

But when one comes to a court of law it is necessary always to ensure that lofty aspirations are not mistaken for the rules of law which courts are capable and fitted to enforce. It is essential that there be no mistake between the functions that are performed by the respective branches of government. It is essential to understand that courts perform one function and the political branches of government perform another. One can readily understand that there may be disappointment in the performance by one branch or another of government of the functions which are allocated to it under our division of powers. But it would be a mistake for one branch of government to assume the functions of another in the hope that thereby what is perceived to be an injustice can be corrected. [121]

[684]

Within Victoria only 26 adult frogs, one juvenile frog and three groups of tadpoles have been recorded at 24 localities (Atlas of Victorian Wildlife 1993) scattered over a large area of central and eastern Gippsland. At the majority of sites only a single adult has been found.

During the last decade[166] 25 flora and fauna surveys have been conducted by CNR and its predecessors within the known range of the Giant Burrowing Frog. Only nine individuals have been recorded during these surveys, demonstrating the rarity of the species (Gillespie 1990). Given this level of survey effort it is unlikely that the lack of records is simply due to an inability to detect the species, even with an animal as cryptic as the Giant Burrowing Frog. The species may prove to be widely spread at very low densities or conversely to occur in small isolated colonies.

Gillespie (1990) considered the Giant Burrowing Frog may be adversely affected by current silvicultural practices and fuel reduction burning. These activities may damage potential breeding sites, diminish water quality and remove the litter and groundcover layers which harbour the species' food items. However, several individuals have recently been recorded near Nowa Nowa in a forest area with a history of disturbance from harvesting and fuel reduction burning. Given the lack of knowledge of the species' habitat requirements it is inappropriate to re-evaluate the effects of disturbance, particularly fuel reduction burning, at this stage. Consequently a conservative management strategy has been adopted. The research proposals contained in this action statement should result in a better understanding of the frog's ecology and may allow modification of the management prescriptions outlined in the Intended Management Action section.

Giant Burrowing Frogs use small flowing streams as breeding sites. Their tadpoles are likely to be adapted to the natural fluctuations in stream flow, chemical composition and sediment yield of these streams. Fluctuations of stream conditions caused by human activities such as timber harvesting and roading may not be within the tolerance ranges of these tadpoles resulting in reduced recruitment to the adult population.

In its recommendation for listing under the Flora and Fauna Guarantee the Scientific Advisory Committee (1991) found that the Giant Burrowing Frog was very rare in terms of abundance. [167]

[708]

There is no biological or scientific significance that I am aware of for the 100m buffer width described on page 3 of the Action Statement. Based upon the known biology of the Giant Burrowing Frog, Penman et al. (2008b) suggest that a 100m buffer width is inadequate to protect non breeding habitat of females, which readily disperse and occupy forest further from streams than 100m. Studies on other stream-breeding amphibians in Victoria and subsequent development of forest management prescriptions have identified 300m buffers around all potential habitat (not just known records) as the requirement, based upon an assessment of requirements to effectively manage hydrological values and off-stream habitat. Multi species studies from over seas have suggested that buffer zones of a minimum of 300 m around breeding sites will protect a significant proportion of a number of species' populations.

There is similarly no biological or scientific basis for the 1km buffer up and down stream of records of frogs. This presumes that such a distance is adequate for protecting the local population. However, no information is available from any Victorian localities on population density, population size, distribution of the population in the local area, or specific sections of streams important for breeding. Whilst a distance of 1km will protect some catchment values and non-breeding habitat, evidence suggests that important non-breeding habitat away from riparian zones will not be adequately protected. Furthermore impacts to tributaries upstream of the 1 km zone may still adversely affect stream flows and water quality within the zone which may adversely effect breeding habitat.

...

The figure of 50 ha block around a record is intended to provide protection from habitat disturbance around specific records of individuals. It assumes that this area is adequate to conserve not only the territory of this individual but also the local population. Penman (2005) found that the Giant Burrowing Frog has a non breeding home range of on average 0.05 ha. Theoretically, 50 ha could support 1000 non-overlapping Giant Burrowing Frogs, but this assumes that all the habitat is suitable and that all the suitable habitat is actually occupied. The 50ha does not specifically provide any protection for breeding requirements of the local population, or connectivity with other local populations. Penman et al. (2008b) has suggested that many of the current prescriptions for the Giant Burrowing Frog are inappropriate.

My understanding of an 'equivalent area of suitable habitat nearby' is an area that is assessed to meet the habitat requirements of the species, and is close enough to the sight [sic] to offer adequate refuge for an adequate representative sample of that local population. For this to be assessed and identified would require the following knowledge:

[751]

The species appears to be dependent upon forest habitat for its survival.
The types of forest and areas of forest that the species occurs in are subject to timber harvesting.
Most of the known localities of the Brown Tree Frog in Victoria are outside of protected areas, such as National Parks.
With the exception of species with highly generalised ecological requirements, or species that thrive on habitat disturbance, most species are adversely affected by significant changes to their habitats. Based upon what is known about the Large Brown Tree Frog, the adult stage does not have highly generalised ecological requirements and the species does not thrive in disturbed environments. Timber harvesting grossly alters the species' habitat by changing forest structure, light penetration levels, moisture and temperature regimes.
Amphibians are ectotherms, meaning they depend upon the external environment to attain and maintain optimal temperatures for metabolic activity ('cold-blooded'). Amphibians have a moist skin; they exchange oxygen and carbon dioxide through their skin and it plays an important role in water balance and defense. The vast majority of amphibians therefore tolerate relatively narrow temperature ranges compared to other vertebrates, and are more sensitive to levels of environmental moisture. Consequently, factors that significantly alter these regimes will have a detrimental effect on individual survival.
Timber harvesting may also remove or alter sheltering sites, which may be important for avoiding predators. Other arboreal forest frog species exploit tree hollows, exfoliating bark, fallen logs and leaf litter for shelter. Timber harvesting may also affect food availability for frogs and the abundance of predators, as these species are also affected in various ways by changes in habitat brought about by timber harvesting.
Several studies have shown that clear-felling has a long-term detrimental affect on amphibian populations. Populations of the Large Brown Tree Frog may be detrimentally affected by changes resulting from one or more of the above factors. The utility of different successional stages of forest post-logging by Large Brown Tree Frogs is also unknown. At a landscape level, timber harvesting may result in fragmentation of suitable habitat and isolation of non-viable populations over time.
The impact of coupe fires or fuel reduction burning on the Large Brown Tree Frog is unknown. However, frogs have little defense against fire; they are slow and sedentary animals and cannot flee from fire. They also have low tolerance of extreme temperatures and desiccation. Non-burrowing frog species that do survive fire probably do so by sheltering in large logs or patches of unburnt forest. The restriction of the Large Brown Tree Frog to forest types that rarely burn, or typically experience small or cool burns, may reflect their inability to cope with fire. Coupe burns in high elevation wet forest are hot fires, which are likely to destroy any remaining refugia for the Large Brown Tree Frog.
Available information suggests that the Large Brown Tree Frog may have relatively general breeding habitat requirements. This species may be able to temporally exploit breeding habitats created by forest management practices, such as fire dams and road side-ditches. However, the comparative reproductive success between natural and artificial water bodies is unknown. Artificial water bodies may serve as ecological traps through elevated drying rates or predation rates. Other ecological generalist species may also be able to exploit these habitats more successfully and out-compete the large Brown Tree Frog. Increased water temperatures and evaporative rates in newly logged areas may reduce viability and availability of natural breeding pools.[184]

[887]

The Action Statement for the Sooty Owl specifies a target of 131 nesting sites - has this been reached? If not how many sites are there? If it has been reached, is there anything further required under the Action Statement when a new nestign [sic] site is found?

...

Steve Henry advised that we have work to do to revise the Sooty Owl protection system, especially to account for the new records found by Rohan Bilney in his Ph D [sic] project and to account for the new election promise reserves. We will do this as part of the FMA plan review process. However we have a couple of hundred sites - again many of these are in clusters so don't represent separate SOMAs, and it is hard to judge sometimes which records represent separate SOMAs. However I estimate that we have about 100 separate SOMAs, which I think is fairly conservative. The rest of the target is made up of modelled sites (which is really just habitat within the reserve system). Thus, new sites that do not fit into an existing SOMA should be substituted for modelled sites until we get to the 133 SOMAs[224] based just on records. Once we get to 133 sites based on records, priority is to be given to sites based on breeding records. At the very least, nest or roost sites get a 3 ha SMZ and a 250-300m radius SMZ if these sites are not otherwise protected area. We had very few of these before Rohans project.

The Action Statement for the Powerful Owl specifies a target of 100 nesting sites - has this been reached? If not how many sites are there? If it has been reached, is there anything further required under the Action Statement when a new nesting site is found?

...

Steve Henry advised that the story for Powerful Owls is broadly similar to that for Sooty's We have about 180 records but again many of these are clustered. Some of these are in sub-optimal habitat, so not all are placed in POMAs. My estimate is that the records in good habitat fall into about 80 POMAs, so we are about 20 POMAs short of the target. The balance is made up of modelled habitat in the reserve system. Requirement for treating confirmed nest or roost sites outside the reserve system is the same as for Sooty Owls, and the action statement specifies that preference be given to POMAs based on nesting and roosting sites once the target based on actual records is exceeded.[225]

[959]

Implement a standard habitat protection prescription of a 500 ha Special Protection Zone (SPZ) and a 1000 ha Special Management Zone (SMZ) for all confirmed Quoll records in State forest throughout Victoria, up to targets specified in individual FMPs. The location of the SPZ and SMZ will [be] based on protecting preferred habitat features for Quolls. The SPZ will include known den and latrine sites (protected by at least a 200 m radius), and may include other detection sites, based on habitat quality and the proximity of existing protected habitat. Detection sites not included in the SPZ will generally be included within the SMZ, unless there are compelling reasons for excluding them (eg. a record in a clearly unsuitable location for habitat protection, proximity of existing protected habitat etc). Site protection for Quolls will be prioritised according to habitat quality, current reservation status of the site, linkage to other reserves and the presence of complementary values. Records within 2 km of each other will be generally regarded as the same animal unless proved otherwise. In East Gippsland (the area covered by the FMP), there will be a target of 75 Quoll sites in protected habitat (ie. parks, reserves and State forest SPZ/SMZ). Currently, there are 71 sites of Quoll records protected in East Gippsland, including 21 in State forest (note that this prescription exceeds the target of 50 protected records specified in the East Gippsland FMP). In the North East FMP and Gippsland FMP, there are targets of 10 records in State forest triggering habitat protection.

Periodically review the selection of Quoll records to be afforded protection by the standard prescription outlined in 5.1 in each FMP to which targets apply, to ensure that, once targets are reached and as new records accrue or other information becomes available, the network of protected habitat in each FMA is optimal for Quoll conservation. To assist this review, develop guidelines for the substitution of protected Quoll sites based on the extent and quality of habitat and on the currency, reliability and type of record.

Develop Quoll habitat management guidelines for Special Management Zones, using available information on Quoll and prey habitat preferences and use.

Facilitate the protection of potential Spot-tailed Quoll habitat and sites with or near Quoll records on private land, within existing mechanisms for protection of native vegetation (eg. zoning under local government planning schemes, development of Regional Management Plans by Catchment Management Authorities, Bioregional Plans, regional vegetation plans, voluntary conservation agreements - eg Land for Wildlife, Conservation Covenants). State Government policy restricting the clearing of native vegetation has been in operation for some time, and the shift to 'Net Gain' of native vegetation for Victoria (NRE 1997) is a useful tool for protecting remaining potential habitat on private land.[237]

[1058]

Adequately conserve the values listed in the Forest Management Plan
- Given the lack of surveys in the East Gippsland Forest Management Area to determine the extent of high densities of Greater Gliders and Yellow-bellied Gliders in East Gippsland since the intensive surveying undertaken between 1983 and 1993, it is difficult to determine whether this value is adequately conserved. High density populations of Greater Gliders were located at 5 of about 1200 sites in State forest surveyed between 1983 and 1993.
- Based on analysis of the apparent habitat requirements to support high densities of these species, suitable habitat is well represented within current and proposed additions to the reserve system in the East Gippsland.
Maintain a well distributed, interconnected network of protected areas.
- The existing network of protected areas in the East Gippsland Forest Management Area is well distributed and interconnected. It will be enhanced by the proposed additions to the conservation reserve system.
- The addition of Brown Mountain as a protected area would further enhance this network.
Minimise practical problems for timber harvesting or access to the General Management Zone;
- The exclusion of timber harvesting will result in about 8,000m3 of sawlog being forgone which impact in VicForests' capacity to meet current supply commitments, impacting o[n] the viability of the timber industry in the area in the immediate term.
- There are no obvious alternative sources of sawlog supply to offset the loss of resources from Brown Mountain.
- The creation of a Special Protection Zone at Brown Mountain would result [in] access problems to the General Management Zone left remaining in the area.
Make best use of areas that are unavailable for timber harvesting.
- Similar forest types and well over 100ha of suitable habitat to support high densities of Greater Gliders and Yellow-bellied Gliders is found [in] areas of State forest and national park not available for timber harvesting.
- Due to over 80 percent of old-growth forest in East Gippsland being unavailable for timber harvesting, the creation of a Special Protection Zone at Brown Mountain would not make best use of these areas.
Avoid conflict with strategic burning corridors.
- Brown Mountain is not within a strategic burning corridor.

[1068]

The intention of the conservation guideline for arboreal mammals is to ensure that suitable habitat is protected to support high density populations, by including it in a Special Protection Zone.
Suitable habitat to support a high density population of Greater Gliders and Yellow-bellied Gliders is extensively represented in areas in close proximity to Brown Mountain that are already excluded from timber harvesting (including in the new and expanded conservation reserves) and the creation of a Special Protection Zone will have a material impact on timber production in the area.
A decision to not create a Special Protection Zone at Brown Mountain (and to allow further timber harvesting) will impact on the high density population of Greater Gliders and Yellow-bellied Gliders. However, it will not affect the conservation status or viability of either species, as both are common throughout East Gippsland.
Considering all relevant matters, the Department does not intend to create a Special Protection Zone at Brown Mountain. In this case, the application of conservation guideline for arboreal mammals would not allow the strategic intent of the East Gippsland Forest Management Plan to be achieved, which is to conserve natural values but allow for a viable timber industry.
To better achieve this balance and minimise impacts on the high density population of Greater Gliders and Yellow-bellied Gliders at the site, the Department intends to allow timber harvesting to occur at Brown Mountain to occur [sic] under modified prescriptions, namely:
- A 100 meter buffer along Brown Mountain Creek, where most animals were found during the survey that was conducted.
- The protection of hollow-bearing habitat trees identified by biodiversity officers of the Department (where it is safe to do so).
Subject to your comment on this decision, the Department intends to:
- Formally advise Environment East Gippsland (as proponents of the survey) and VicForests of the decision.
- Make the survey report available to the public on request.
- Assist VicForests in the development of a process for the conduct [of] pre-harvesting surveys.
- Continue to develop a decision framework to assist in responding to other flora and fauna surveys conducted by members of the public in timber harvesting coupes.
It is anticipated that this decision framework will be prepared in consultation with stakeholders and be made publicly available.[258]

[1146]

Description and occurrence

Hollows that form in trees provide essential breeding and roosting spaces for many native wildlife species. Native Australian trees do not usually develop hollows suitable for use by vertebrates until they are very old. Large hollows, essential for some fauna, do not develop until trees are well over a hundred years old; the development of large hollows being a characteristic feature of tree senescence. Hollows develop in Australian trees largely as a result of natural branch shedding and damage by wind, lightning, fungi and wood-boring insects, particularly termites. Fire can accelerate this damage, but it also accelerates deterioration and collapse of existing hollow trees. In contrast to other parts of the world, where animals like woodpeckers actively excavate holes, the only primary hole-excavating vertebrate animals in Australia are a few species of tropical parrot.

Some eucalypt species (eg River Red Gum Eucalyptus camaldulensis) may survive for many centuries, providing a dynamic supply of hollows that suit different species at different stages of hollow development. Each animal species has its own requirements and preferences for factors such as hollow size, location (branch or trunk), tree species and surrounding vegetation. Old trees may continue to provide hollows for many years between death and eventual collapse and decay.

Hollow-bearing trees are usually the oldest and largest members of their communities. Therefore they often have values beyond the hollows they contain that cannot be provided by younger trees; by virtue of their age, size, form, root development and ability to sequester resources from surrounding vegetation. These include: landscape value; a large and diverse invertebrate fauna, particularly in peeling bark which provides a distinctive foraging substrate; non-hollow nest, roost and perch sites; nest materials; open stand structure; clusters of mistletoes and other epiphytes, and a more regular and prolific flowering and nectar production.

When large trees eventually collapse or fall, they provide a range of resources for different groups of fauna. Large hollow logs on the forest floor are used by ground-dwelling animals, particularly mammals, for shelter and as foraging sites. Branches and trees falling into water provide shelter for fish and other aquatic animals. Rotting wood contributes nutrients and organic matter to the soil, and fungi are used as food by various mammals including possums, bandicoots and potoroos.

Rates of formation and loss of hollow-bearing trees have been affected by European settlement in all Australian states. Usually this has involved accelerated rates of loss (principally through clearing for agriculture) and reduced rates of formation (by preventing regeneration of trees in farmland, or as a consequence of wildfire (eg 1939 fires) or timber harvesting activities in areas of forests); hence numbers of hollow-bearing trees are reduced.[278]

Plaintiff v Defendant

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