Plaintiff v Defendant

2 On 30 August 2021, EEG filed a summons seeking an interlocutory injunction to restrain VicForests from harvesting timber in coupe 801-511-0006 (known as Tiger) in State forest north of Lakes Entrance, Victoria. The application was prompted by VicForests posting an operations map for the coupe on its website on about 26 August 2021. I heard the application in the Practice Court on 31 August 2021, and made orders in the form sought by EEG. These are my reasons for making those orders.

3 The Timber Act provides a framework for sustainable forest management and sustainable timber harvesting in Victoria's State forests.[1] Section 46(a) of the Timber Act requires VicForests to comply with the Code of Practice for Timber Production 2014, which incorporates the Management Standards and Procedures for timber harvesting operations in Victoria's State Forests 2014. The current Allocation Order made under s 14(1) of the Timber Act also requires VicForests to observe the Code and the Management Standards.

4 Chapter 2 of the Code applies to State forests. It begins by setting out the expectations for forest management planning for State forests, including the use of the Forest Management Zoning Scheme or FMZS:[2]

Sound planning ensures that the full range of State forest values are managed sustainably for current and future generations. These values include ecological diversity, cultural heritage, landscape, provision of recreation and educational opportunities as well as a range of renewable forest products. It is important to ensure that forest management is responsive to changing community expectations, expanding knowledge of forest ecosystems and techniques to improve planning approaches.

Long-term (strategic) forest management planning is undertaken in accordance with legislation and processes such as regional forest agreements and includes outputs such as policies relating to specific forest values such as threatened species and forest management plans.

The Forest Management Zoning Scheme (FMZS) is a long-term planning tool that spatially represents all of the known values that are managed in Victoria's State forests. The FMZS seeks to achieve a balance between a range of value inputs including the timber harvesting rules stated within the Planning Standards appendix to the Management Standards and Procedures.

The FMZS identifies three management zones within State forest: the Special Protection Zone (SPZ); the Special Management Zone (SMZ); and the General Management Zone (GMZ).

SPZs are managed for particular conservation values, forming a network designed to complement the formal conservation reserve system. Timber harvesting operations are excluded from SPZs. SMZs are managed to conserve specific features, while catering for timber harvesting operations under special conditions specified in SMZ plans and the Planning Standards. GMZs are managed for a range of uses and values, but timber harvesting operations will have a high priority.

5 Part 2.2 of the Code recognises that appropriate planning and management can minimise the impact of timber harvesting operations on environmental values such as biodiversity. To that end, the Code sets out 'requirements that must be observed during planning, roading, harvesting, tending and regeneration of native forests'.[3] In relation to conservation of biodiversity, the Code sets out both operational goals and mandatory actions.[4] In this proceeding, EEG relies on the following mandatory actions:

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.

2.2.2.2 The 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.

2.2.2.3 The 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, modified harvest timing, modified silvicultural techniques or retention of specific structural attributes.

6 Part 2 of the Management Standards deals with planning and record keeping, commencing with 'FMZ and planning information' at 2.1.[5] Clause 2.1.1.3 of the Management Standards provides:

Where evidence of a value that requires protection via the establishment or amendment of an SPZ or SMZ is found in the field application must be made to the Secretary or delegate prior to commencement of the timber harvesting operation to create or amend an SPZ or SMZ in accordance with Appendix 5 the Planning Standards. SMZ applications must be accompanied by an SMZ plan and must be complied with during timber harvesting operations.[6]

7 Appendix 3 to the Management Standards provides 'in field prescriptions for values', which are set out in a number of tables. Table 13 sets out the prescriptions for rare or threatened fauna and invertebrates, by reference to forest management area and species. For the yellow-bellied glider in the East Gippsland forest management area Table 13 provides:

Where evidence of this value is found in the field follow clause 2.1.1.3 of this document using table 4 in Appendix 5 the Planning Standards for information.

8 Appendix 5 to the Management Standards is a document titled Planning Standards for timber harvesting operations in Victoria's State forests 2014. Its role is explained in the introduction:

The Planning Standards for timber harvesting operations in Victoria's State forests 2014 are an appendix to the Management Standards and Procedures which are incorporated into the Code.

Throughout this document the planning standards can be categorised as either fixed zoning requirements or detection based zoning requirements.

Fixed zoning requirements are the responsibility of DEPI[7] to represent spatially in the corporate FMZ scheme.

Detection based zoning requirements are also the responsibility of DEPI to represent spatially in the corporate FMZ scheme however where evidence of a detection based value (as outlined in this document) is found in the field and it isn't already included in the FMZ scheme, application must be made by the managing authority to the Secretary or delegate prior to commencement of the timber harvesting to amend the FMZ scheme.

9 Table 4 in the Planning Standards sets out detection based FMZ rules for fauna. The table prescribes both 'zoning management actions' and 'management actions'. For the yellow-bellied glider in the East Gippsland forest management area it requires the following zoning management action:

Establish a SPZ of approximately 100 ha of suitable habitat where verified records report more than 0.2 individuals per hectare, more than 5 individuals per km or more than 7 individuals per hour of spotlighting, or where substantial populations are located in isolated or unusual habitat.

No 'management action' is prescribed in Table 4 of the Planning Standards in relation to the yellow-bellied glider.

10 It was common ground that yellow-bellied gliders have been detected in Tiger coupe, in sufficient numbers to require the establishment of a Special Protection Zone or SPZ. In January 2021, VicForests prepared a map of the area, identifying an area of 109.48 hectares that it proposed should be set aside for the protection of the yellow-bellied glider.

Figure 1: VicForests map VFSMP393_Yellow-bellied Glider (Petaurus australis)

11 The black stars in the centre of the map represent yellow-bellied glider detection sites. The green hatched area is the proposed Special Protection Zone. The pink hatched area in the top right corner is an existing Special Protection Zone.

12 A forester with VicForests provided a draft of this map to the Department of Environment, Land, Water and Planning (DELWP) on 18 January 2021, in an email addressed to DELWP's Natural Environment Programme (NEP) Officer for the Gippsland region. Some explanation of the map was provided in the email, as follows:

Although only the Yellow-bellied gliders meet prescription (DELWP Planning Standards, 2014) to trigger a 100ha Reserve in 801-511-0006 coupe, other detections of other Arboreal mammals and Large Forest Owls will also benefit from the reserve area created within catchment coupes. (Please note only the detections that meet prescriptions are shown and attached in spatial data for clarity)

The proposed plan takes into account findings from relevant spatial GIS layers and meets the conservation requirements and prescriptions outlined in the DELWP Planning Standards, 2014.

Please note Additional areas identified throughout coupe areas will have retained patches of suitable habitat excluded from harvest to maintain connectivity throughout the area also for these species as the forest regenerates.

13 VicForests asked DELWP to 'consider the plan in terms of suitability for species protection and compliance with existing management prescriptions'. On 8 February 2021, the DELWP NEP officer replied:

In response to your request regarding VFSMP393 - Yellow-bellied Gliders (Petaurus australis) 801-511-0005/801-511-0006/801-511-0007

NEP are satisfied that the proposed VFSMP39[3] created for the detection of Yellow-bellied Gliders (Petaurus australis), meets the species habitat requirements and prescriptions outlined in the DELWP Management Standards and Procedures and Planning Standards, 2014 (Appendix 5) for timber harvesting in Victoria.

NEP are also satisfied that the other values identified have been addressed. We also note the connectivity to SPZ (Special Protection Zone) P-801-01-04.

Please submit this draft plan along with any other required supporting documentation to the Gippsland Region Values and Assets Team Leader prior to commencement of timber harvesting to initiate a zoning amendment for this value.

14 On 16 February 2021, VicForests submitted the 'Special Management Plan VFSMP393 for Yellow-bellied Glider (Petaurus australis)' to DELWP, with associated zoning amendment requests linked to Tiger and neighbouring coupes. The information provided with the request included the map shown at Figure 1 above. The request has not yet been actioned by DELWP, and the proposed Special Protection Zone does not appear in DELWP's Forest Management Zoning Scheme.

15 The email from VicForests to DELWP of 18 January 2021 referred to yellow-bellied glider detection records between July 2017 and December 2020. The evidence before me on 31 August 2021 indicated that yellow-bellied glider detection sites in and around Tiger coupe were more widespread than shown in the map at Figure 1 that was submitted to DELWP.

16 As mentioned, in August 2021, VicForests prepared and published on its website an operations map for Tiger coupe:

Figure 2: VicForests Operations Map for Coupe 801-511-0006 (Tiger) dated 12 August 2021

Yellow-bellied glider 'species observations' are marked with yellow stars. There are more detection sites in Figure 2 than were shown on Figure 1, and a number of those sites are outside the boundary of the proposed Special Protection Zone.

17 In addition, the co-ordinator of EEG exhibited to her affidavit a map of yellow-bellied glider sightings, prepared by Gippsland Recreation Outdoors Pty Ltd for EEG on the basis of data from:

(a) the Victorian Biodiversity Atlas (VBA), a publicly available resource accessible on the internet;

(b) the Forest Protection Survey Program (FPSP), available from a Victorian Government website; and

(c) a citizen science survey prepared by Goongerah Environment Centre (GECO) and Gippsland Environment Group Inc.

Figure 3: Yellow-bellied glider sightings recorded in the VBA, FPSP, and by GECO

The detection sites plotted on this map, marked with coloured circles and triangles, are far more numerous than those shown on Figure 1. There are also a number of sightings outside the proposed Special Protection Zone, which is hatched in green on this map.

18 EEG relied on a report of Associate Professor Grant Wardell-Johnson, an environmental biologist, dated 27 August 2021. Professor Wardell-Johnson had been provided with a number of maps, including those reproduced above, and his attention had been directed to the sightings on 22 October 2020 marked on Figure 3. He was asked, on the basis of those maps, what part if any of Tiger coupe should be included in the Special Protection Zone to be established in response to the 22 October 2020 sightings. His opinion was:

To support the apparently high sustainable population of YBGs,[8] a minimum necessary consideration is to trace the boundary of the retained forest beyond any groups of sightings, and to consider the shape of the retained vegetation. Thus, in the context of timber harvest, a square or round area of retained mature vegetation has more value than a linear corridor of the same vegetation for species such as YBGs. That is because mature-forest dependent species are disadvantaged by the edge effect created by the harvesting operation for several to many decades.

Thus, to provide the best opportunity for a sustainable population of YBGs in the general area of timber harvest of [coupes] 801-511-0005-0007, existing sightings should be well-within the boundary of an SPZ (i.e., more than 20 m). There is a low likelihood of the long-term retention of populations of YBGs where there are significant edge effects (i.e., retained vegetation of a linear or semi-linear shape). An SPZ for YBGs which minimises edge effect (i.e., a square or round shape) will provide greater opportunity for a biodiversity safety net for this mature-forest dependent species.

Based on the seven maps provided to me, I consider that an SPZ that takes account of the observed sightings of YBG to the immediate north of Casey Creek should include the entire proposed [coupe] 801-511-006 as well as 801-511-007. It should also have included 801-511-0005. This is because these sightings, while clumped, appear generally throughout the three coupes at the scale provided to me. Anything less than this level of protection is likely to have serious consequences for this population.

20 VicForests has designated Tiger coupe as a TAFE training coupe, to be used by TAFE colleges for training purposes for TAFE courses. Any timber harvested will be retained by the relevant TAFE, and VicForests does not intend to undertake commercial timber harvesting in the coupe. Presently the relevant TAFE intends to train 270 students in forestry and associated skills by Christmas 2021. Those students include first responders and essential services workers from DELWP, the State Emergency Service, Country Fire Authority and Victoria Police.

21 As VicForests submitted, an interlocutory injunction should only be granted if EEG establishes that:[9]

(a) there is a serious question to be tried that VicForests will, unless restrained, conduct timber harvesting operations in contravention of the Timber Act, the Code, or the Management Standards; and

(b) the balance of convenience favours granting the injunction.

22 The main issue in dispute at the hearing of EEG's application for an interlocutory injunction was whether there was a serious question to be tried.

23 EEG submitted that the verified records of sightings of yellow-bellied gliders in and around Tiger coupe triggered the requirement in cl 2.1.1.3 of the Management Standards for VicForests to apply to the Secretary of DELWP to create a Special Protection Zone in accordance with the Planning Standards, before commencing timber harvesting operations. The Planning Standards in turn require the establishment of a Special Protection Zone of approximately 100 hectares of 'suitable habitat', within which logging is not permitted.

24 Based on Professor Wardell-Johnson's opinion, EEG submitted that the Special Protection Zone proposed by VicForests in Special Management Plan VFSMP393 was not suitable habitat for the identified population of yellow-bellied gliders. It argued that, in order to be suitable habitat, the Special Protection Zone should be square or round in shape. The linear shape proposed by VicForests was unlikely to support the sustainability of yellow-bellied gliders in the area. An SPZ that did not include Tiger coupe was 'likely to have serious consequences for this population'.

25 Accordingly, EEG submitted, VicForests had not met its obligation under cl 2.1.1.3 of the Management Standards, read with Table 13 in Appendix 3, and Table 4 in the Planning Standards, to apply to the Secretary of DELWP to create or amend a Special Protection Zone of 100 hectares of suitable habitat for the yellow-bellied gliders detected in and around Tiger coupe. The area that VicForests had proposed was 'unsuitable habitat' for the recorded yellow-bellied gliders.

26 EEG argued that the legislative scheme places the responsibility on VicForests to identify 100 hectares of 'suitable habitat' in its application to create or amend a Special Protection Zone. The Management Standards apply to VicForests as the body carrying out timber harvesting operations in State forests, rather than to DELWP.

27 VicForests' primary argument was that there was no serious question to be tried, because it was clear that it had complied with its obligations under cl 2.1.1.3 of the Management Standards. The evidence demonstrated that, in February 2021, it had applied to DELWP for the establishment of a Special Management Zone of more than 100 hectares for the protection of the yellow-bellied gliders detected in Tiger coupe. Its proposed Special Management Plan had been endorsed by DELWP's NEP officer, who was satisfied that it met the species habitat prescriptions of the Management Standards. Although DELWP had not yet changed the Forest Management Zoning Scheme to include the proposed Special Management Zone, VicForests did not intend to harvest any timber within the area it had identified for protection.

28 VicForests contended that the 'management action' required of VicForests was to apply to the Secretary of DELWP to create or amend a Special Protection Zone. Table 4 of the Planning Standards did not specify any management action for VicForests to take in relation to yellow-bellied gliders detected in State forest in East Gippsland. Rather, it specified a 'zoning management action', which was the responsibility of DELWP. Hence, the suitability of the proposed Special Protection Zone was a matter for the Secretary of DELWP to determine, as the entity responsible for amending the Forest Management Zoning Scheme. VicForests said that EEG could take up with the Secretary its grievance about the configuration of the proposed Special Protection Zone.

29 Having applied to create or amend a Special Protection Zone, for which it had obtained preliminary approval from DELWP, VicForests submitted that there was nothing more for it to do. It was therefore lawfully entitled to harvest timber in Tiger coupe in a manner consistent with Special Management Plan VFSMP393.

30 VicForests also queried whether the interlocutory injunction sought by EEG was within the case pleaded in its amended statement of claim. It said that the pleading does not at present allege that VicForests must include certain matters in an application under cl 2.1.1.3 of the Management Standards.

31 I was satisfied that there was a serious question to be tried whether VicForests had complied with its obligation under cl 2.1.1.3 of the Management Standards in respect of the detected population of yellow-bellied gliders in and around Tiger coupe. The serious question for trial concerns at least three issues.

32 First, there is evidence that suggests that the 'value that requires protection' is more numerous and widespread than the detection sites plotted on the map prepared by VicForests as part of its Special Management Plan VFSMP393.[10] Both VicForests' operations map for Tiger coupe and the map of yellow-bellied glider sightings prepared for EEG indicate that a number of gliders have been spotted in forest outside the Special Protection Zone proposed by VicForests.[11] It was not clear to me how VicForests had determined that the additional sightings did not 'meet prescriptions' - that is, 'more than 0.2 individuals per hectare, more than 5 individuals per km or more than 7 individuals per hour of spotlighting, or where substantial populations are located in isolated or unusual habitat' as specified in Table 4 of the Planning Standards.

33 I note the opinion of Professor Wardell-Johnson that 'existing sightings should be well-within the boundary of an SPZ (i.e., more than 20 m)'. It is arguable that the Management Standards require VicForests to identify 100 hectares of habitat that is suitable for the yellow-bellied gliders that have in fact been sighted, based on verified records of where the gliders have been seen.

34 Second, I considered that there was a serious question to be tried whether cl 2.1.1.3 of the Management Standards, read together with Table 13 in Appendix 3, and Table 4 in the Planning Standards, obliges VicForests to apply to create or amend a Special Protection Zone of 100 hectares of habitat that is objectively suitable for the detected population of yellow-bellied gliders.

35 VicForests' entitlement to harvest timber in State forest where rare or threatened fauna have been detected is conditional on it making an application to amend the Forest Management Zoning Scheme before it commences harvesting. The Code and Management Standards place responsibility on VicForests, as the relevant managing authority, to propose suitable protective zones where rare or threatened wildlife is detected in an area that it proposes to log. As this case demonstrates, there can be a significant delay between when VicForests makes an application to DELWP and when DELWP updates the relevant spatial layer in the Forest Management Zoning Scheme. It is conceivable that VicForests might start and finish harvesting a coupe before DELWP has taken the 'zoning management action' contemplated in Table 4 of the Planning Standards. The practical operation of the scheme means that VicForests' selection of the area to be set aside as a Special Protection Zone will often be determinative.

36 DELWP is responsible under the Management Standards for maintaining and updating the Forest Management Zoning Scheme. It is not obvious whether or to what extent DELWP is also responsible for assessing whether a proposed amendment is in accordance with the Planning Standards - in this case, assessing whether the proposed Special Protection Zone is 'suitable habitat' for the detected population of yellow-bellied gliders. To put it another way, I was not persuaded that it was clear beyond argument that EEG's complaint about the suitability of the habitat was a matter between it and the Secretary of DELWP.

37 Third, the opinion of Professor Wardell-Johnson raised a serious question whether the proposed Special Protection Zone is suitable habitat for the detected population of yellow-bellied gliders. Based on his opinion, it is arguable that the semi-linear shape of the selected area, and the fact that it does not encompass a number of locations at which gliders have been detected, is not the 'suitable habitat' required by Table 4 of the Planning Standards. Professor Wardell-Johnson considered that the Special Protection Zone should include all of Tiger coupe, because of the locations of the recorded sightings.

38 For completeness, I was satisfied that EEG's application for an interlocutory injunction was within the case pleaded in the amended statement of claim. I refer in particular to paragraphs 31 to 39, 53A, 53E(a), 53E(g) and 53H(a) of the pleading, and paragraph AA of the prayer for relief.

39 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 who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial'.[12] I accepted EEG's submission that there is a lower risk of injustice in granting an injunction to restrain VicForests from harvesting timber in Tiger coupe pending trial.

40 The proceeding is set down for trial in late March 2022, and the evidence is that VicForests plans to harvest timber in Tiger coupe before the end of this year. If that logging takes place, the timber will have been harvested by the time the proceeding comes on for trial, and the suitable habitat that EEG maintains must be set aside for the protection of the yellow-bellied gliders will be gone. Plainly, damages would not be an adequate remedy. On the other hand, if VicForests succeeds in its case that it has met its obligations under cl 2.1.1.3 of the Management Standards, it will be able to log the coupe at a later date.

41 I considered the circumstance that VicForests intended Tiger coupe to be used as a training coupe for TAFE students. The injunction will require identification of a different coupe for that purpose, which will probably involve some additional work for VicForests. However, there was nothing to suggest that this could not be done in time for the training to go ahead when planned, and the consideration did not tip the balance of convenience.

42 Overall, I gave weight to the balance between competing interests that is struck in the Timber Act, the Code, and the Management Standards, which together seek to ensure that timber production is compatible with the conservation of State forests. In particular, the Code provides that the precautionary principle must be applied to the conservation of biodiversity values. My assessment of the balance of convenience was informed by that approach.

43 For those reasons, I made the following orders on 31 August 2021:

1. Until the hearing and determination of this proceeding or further order the defendant must not, whether by itself, its servants, agents contractors or howsoever otherwise, conduct timber harvesting operations within the meaning of section 3 of the Sustainable Forests (Timber) Act 2004 (Vic), in coupe 801-511-0006 ('Tiger').

2. Order 1 does not prohibit the defendant from felling or cutting trees or parts of trees in order to address a serious risk to human safety.

44 I reserved liberty to apply, and the costs of the application.

[1] Sustainable Forests (Timber) Act 2004 (Vic), s 1(a).

[2] Code of Practice for Timber Production 2014, 31 [2.1.1] - Long-term (Strategic) Forest Management Planning.

[3] Code, 32 [2.2] - Environmental Values in State forests.

[4] Code, 34-5 [2.2.2] - Conservation of Biodiversity.

[5] The acronyms section of the Management Standards _and Procedures for timber harvesting operations in Victoria's State Forests 2014_defines 'FMZ' to mean 'forest management zone'.

[6] The acronyms section of the Management Standards defines 'SMZ' to mean 'special management zone' and 'SPZ' to mean 'special protection zone'.

[7] DEPI, the Department Environment and Primary Industries, has been succeeded by the Department of Environment, Land, Water and Planning or DELWP.

[8] Professor Wardell-Johnson's report defines 'YBG' to mean 'Yellow-bellied Glider'.

[9] Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65, [4]; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J).

[10] See Figure 1 at [10] above.

[11] See Figure 2 at [16] and Figure 3 at [17] above.