Plaintiff v Defendant

1 Warburton Environment Inc (ABN 28 781 873 830) ('Warburton') seeks injunctions and declarations against VicForests to enforce the environmental protections relating to Tree Geebung (Persoonia arborea) set out in the Code of Practice for Timber Production 2014 (as amended 2022) ('Code') and in Schedule 1: Management Standards and Procedures for timber harvesting operations in Victoria's State forests ('Standards'). The Standards form part of the Code.[1]

2 The Code and Standards took their present form by an amendment in June 2022. The prior version of the Code was the Code of Practice for Timber Production 2014 (as amended November 2021) ('2021 Code'). The 2021 Code incorporated the prior version of the Standards ('2021 Standards').[2]

3 The Code and the Standards, including their predecessor versions, are the primary instruments for regulating timber harvesting in Victoria's State forests. VicForests is required by law to comply with the Code and the Standards.[3]

4 Warburton contends that in the past VicForests has not complied with the predecessors of the Code and Standards when harvesting timber in the Central Highlands of Victoria, and that it will not in the future comply with the Code and Standards in relation to Tree Geebung unless injunctions or declarations are granted.

5 On 19 November 2021, VicForests approved an amended Special Management Plan for Tree Geebung ('2021 SMP'). On 18 July 2022, VicForests approved a further version of the Special Management Plan for Tree Geebung ('SMP'). It contends that compliance with the SMP is sufficient to satisfy the relevant requirements of the Code and the Standards.

6 The principal issues in the case are whether compliance with the SMP by VicForests is sufficient to meet the requirements of the Code and Standards, and, if it is not, what relief (if any) should be granted by the Court.

7 Since it was issued in June 2020, this proceeding has been heavily contested coupe by coupe. Prior to the commencement of the trial, there had been about 40 interlocutory orders made, and 18 interlocutory judgments or rulings given.[4]

8 The Tree Geebung is a large shrub or small tree growing to about 10m in height. It is a long lived component of the Wet Forest understorey. Tree Geebung individuals require about 100 to 150 years to mature and be capable of any significant contribution to the soil seed bank. Plants estimated to be 250 years old have been found to produce large quantities of seed.

9 Tree Geebung are endemic to Victoria and are found only in the Central Highlands. The habitat of the Tree Geebung is typically moist with high cover in net gullies and streamsides. The species is threatened by fire, forestry operations, regeneration burning and rodents, resulting in seed bank depletion.

10 The Tree Geebung is listed as 'Endangered' under the Flora and Fauna Guarantee Act 1988 (Vic) ('FFG Act') threatened species list. The listing as 'Endangered' reflects past estimated declines due to habitat loss, and future projected declines attributed to elevated bushfire frequencies below the tolerable fire interval as a result of climate change, and the high level of endemism and restricted range of the Tree Geebung.

11 In 1998, Victoria and the Commonwealth entered into the Central Highlands Regional Forest Agreement ('RFA'). The RFA established the broad framework for the management of the forests of the Central Highlands. While much of the RFA is not intended to create legally binding relations,[5] I will mention some of its provisions.

12 In cl 39 of the RFA, the parties agreed that ecologically sustainable forest management was an objective which required a long term commitment to continuous improvement. Achieving the objective involved, among other things:

(a) providing for the long term stability of timber and forestry products industries;

(b) an integrated and strategic forest management system that actively generates and is capable of responding to new information; and

(c) ensuring that harvested areas of native forest on public land are successfully regenerated, maintaining the natural floristic composition.

13 Under cl 40A, the parties recognised that the Victorian forest management system is designed to produce effective outcomes for fauna and flora, and provides a sound basis for implementation and continual improvement to achieve ecologically sustainable forest management.

14 Under cl 41B(a), the parties recognised that the forest management system was enhanced by adaptive management and continuing mechanisms to monitor, report and evaluate the sustainability of forest management policies and practices.

15 Under cl 25G, Victoria agreed to ensure that the components of its forest management system that relate to listed species and communities would, among other things:

(a) provide for their conservation and recovery;

(b) be based on the best available science;

(c) provide for the active management of native forests in order to build their resilience and diversity; and

(d) take into account public comment.

Relevant legislation and subordinate instruments

Conservation, Forests and Lands Act 1987 (Vic)

16 The Conservation, Forests and Lands Act 1987 (Vic) ('CFL Act') provides for the approval by the Minister of Codes of Practice.[6]

17 Part 5 of the CFL Act contains the relevant provisions. Section 31 provides:

(1) The Minister, in accordance with this Part, may make Codes of Practice which specify standards and procedures for the carrying out of any of the objects or purposes of a relevant law.

(2) A Code of Practice may apply, adopt or incorporate any matter contained in any document, standard, rule, specification or method, formulated, issued, prescribed or published by any person whether -

(a) wholly or partially or as amended by the Code of Practice; or

(b) as formulated, issued, prescribed or published at the time the Code of Practice is made or at any time before then.

18 Section 39 deals with compliance with Codes of Practice, and provides:

Compliance with a Code of Practice is not required unless the Code of Practice is incorporated in or adopted by -

(a) a relevant law; or

(b) a condition specified in an authority given under a relevant law.

Sustainable Forests (Timber) Act 2004 (Vic)

19 Timber harvesting is conducted by VicForests under the Sustainable Forests (Timber) Act 2004 (Vic) ('Act').

20 The main purposes of the Act are found in s 1, and relevantly include:

(a) to provide a framework for sustainable forest management and sustainable timber harvesting in State forests;

(ab) to provide for the granting of long-term access to timber resources in State forests; and

(ac) to foster investment in, and returns from, timber resources in State forests ...

21 Section 5 of the Act sets out the principles of ecologically sustainable development. It provides as follows:

(1) In undertaking sustainable forest management in accordance with this Act, regard is to be had to the principles of ecologically sustainable development set out in this section.

(2) Ecologically sustainable development is development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.

(3) The objectives of ecologically sustainable development are -

(a) to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations;

(b) to provide for equity within and between generations;

(c) to protect biological diversity and maintain essential ecological processes and life-support systems.

(4) The following are to be considered as guiding principles of ecologically sustainable development -

(a) that decision making processes should effectively integrate both long-term and short-term economic, environmental, social and equity considerations;

(b) 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;

(c) the need to consider the global dimension of environmental impacts of actions and policies;

(d) the need to develop a strong, growing and diversified economy which can enhance the capacity for environment protection;

(e) the need to maintain and enhance international competitiveness in an environmentally sound manner;

(f) the need to adopt cost effective and flexible policy instruments such as improved valuation, pricing and incentive mechanisms;

(g) the need to facilitate community involvement in decisions and actions on issues that affect the community.

22 Part 3 of the Act sets out the process by which State forest timber resources are allocated to VicForests.

23 Section 12A confirms that timber resources are Crown property, and provides:

(1) All timber resources in State forest are the property of the Crown.

(2) Property in timber resources only passes from the Crown -

(a) to VicForests in accordance with section 14(1); or

(b) otherwise in accordance with this Act.

24 Section 13 provides for the Minister to make allocation orders:

The Minister, by order published in the Government Gazette, may -

(a) allocate timber in State forests to VicForests for the purposes of harvesting and selling, or harvesting or selling, timber resources; and

(b) permit VicForests to undertake associated management activities in relation to that allocated timber including -

(i) preparation of sites for timber harvesting;

(ii) construction of access roads to coupes;

(iii) site rehabilitation;

(iv) forest regeneration;

(v) any other activities specified in the order.

25 Section 14 vests property in allocated timber in VicForests, and provides:

(1) On the publication of an order under section 13, property in the timber allocated by the order is vested in VicForests.

(2) VicForests may only harvest and sell, or harvest or sell, vested timber resources in accordance with the order.

(3) Subject to this Act and to the allocation order, VicForests is entitled to retain the revenue received from harvesting and selling, or harvesting or selling, vested timber resources.

26 Section 15 deals with the contents of an allocation order, and provides:

(a) in relation to the timber resources allocated -

(i) a description of the forest stands to which the order applies;

(ii) references to, or details of, the extent and location of the forest stands to which the order applies;

(iii) a description of the total area available for harvest in each forest stand;

(b) a list of the activities (if any) additional to those referred to in section 13(b) that VicForests is permitted to undertake in the areas to which the order applies.

(2) An allocation order may include any condition, limitation, matter or specification that the Minister thinks fit.

(3) Without limiting subsection (2), an allocation order may include a condition, limitation, matter or specification as to the area that may be harvested during a period specified in the order.

(4) Without limiting subsection (2), an allocation order may include the following in relation to the preparation of a plan under section 37, or the changing of a timber release plan under section 43 -

(a) a specification as to the persons or bodies with whom or with which VicForests must consult in relation to timber harvesting operations proposed in any coupes specified in a plan;

(b) a condition as to the manner in which that consultation must occur.

(5) A specification or condition referred to in subsection (4) that relates to the changing of a timber release plan under section 43, may differ according to the kind of change proposed to be made to the plan.

27 Section 16 deals with VicForests' functions under an allocation order, and provides:

On the making of an allocation order, VicForests must carry out its functions in accordance with that order, in so far as those functions relate to timber resources or the area to which the order applies.

28 Part 5 of the Act deals with the management of timber resources by VicForests.

29 Section 37 requires VicForests to prepare a plan in respect of an area of timber resources allocated to it, and is in these terms:

(1) VicForests must prepare a plan in respect of an area to which an allocation order applies for the purposes of -

(a) harvesting and selling, or harvesting or selling, timber resources; and

(b) undertaking associated management activities in relation to those timber resources.

(2) In preparing a plan under this section, VicForests must comply with any condition relating to consultation that is specified in the allocation order to which the plan relates.

(3) VicForests must ensure that a plan prepared under this section is consistent with -

(a) the allocation order to which the plan relates, including any condition, limitation, matter or specification in the order; and

(b) any relevant Code of Practice relating to timber harvesting.

30 Section 38 lists the matters to be included in the plan, and provides:

(1) A plan prepared under section 37 must include -

(a) a schedule of coupes selected for timber harvesting and associated access road requirements;

(b) details of the location and approximate timing of timber harvesting in the proposed coupes;

(c) details of the location of any associated access roads.

(2) A plan prepared under section 37 may include any other matters necessary or convenient to be included in the plan.

31 Section 41 provides for VicForests to publish notice of the plan in the Government Gazette, and to make the plan available to be viewed.

32 Under s 43 of the Act, VicForests can review and change its timber release plan at any time. Section 43 relevantly provides:

(1) VicForests may review a timber release plan at any time.

(2) VicForests may change a timber release plan at any time if the change is not inconsistent with -

(a) the allocation order to which the plan relates, including any condition, limitation, matter or specification in the order; and

(b) any relevant Code of Practice relating to timber harvesting.

(3) In changing a timber release plan, VicForests must comply with any condition relating to consultation that is specified in the allocation order to which the plan relates.

(6) If a timber release plan is changed under this section, VicForests must cause a notice of the change to the plan to be published in the Government Gazette.

(7) On publication of a notice under subsection (6), the changed timber release plan takes effect in accordance with its terms.

33 Section 44 requires VicForests to carry out its functions and powers under the Act in relation to vested timber resources, or in relation to an area to which an allocation order applies, in accordance with any timber release plan.

34 Part 6 of the Act is concerned with the management of timber harvesting.

35 Section 46 requires compliance with Codes of Practice by VicForests and its contractors, and relevantly provides:

The following persons must comply with any relevant Code of Practice relating to timber harvesting -

(a) despite anything to the contrary in section 67(1) of the [CFL Act], VicForests;

(b) a person who has entered into an agreement with VicForests for the harvesting and sale of timber resources or the harvesting or sale of timber resources ...

36 Under ss 45 and 45A of the Act, VicForests may be found guilty of specified offences committed by one of its contractors.

37 Section 3(1) of the FFG Act defines the term 'biodiversity' to mean:

[T]he variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems) and includes -

(a) diversity within species and between species; and

(b) diversity of ecosystems;

38 Section 4 lists the objectives of the FFG Act, which include:

(a) to guarantee that all taxa of Victoria's flora and fauna ... can persist and improve in the wild and retain their capacity to adapt to environmental change; and

(b) to prevent taxa and communities of flora and fauna from becoming threatened and to recover threatened taxa and communities so their conservation status improves; and

(c) to protect, conserve, restore and enhance biodiversity, including -

(d) to identify and mitigate the impacts of potentially threatening processes to address the important underlying causes of biodiversity decline; and

(e) to ensure the use of biodiversity as a natural resource is ecologically sustainable ...

39 Section 4A sets out the underlying principles of the FFG Act:

It is a principle of this Act that a decision, policy, program or process gives proper consideration to the following -

...

(b) the potential impacts of climate change;

(c) the best practicably available information relevant to biodiversity;

(d) the precautionary principle, such 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;

(f) supporting collaboration between government, the community and partner agencies.

40 VicForests is a body corporate and a State business corporation under Orders in Council made pursuant to ss 14 and 17 of the State Owned Enterprises Act 1992 (Vic).[7]

41 Section 3 of the Order in Council made under s 14 relevantly provides:

(2) The particular purpose of establishing VicForests is to create a statutory body to undertake the management and sale of timber resources in Victorian State forests on a commercial basis.

(3) The functions of VicForests are to:

(a) undertake the sale and supply of timber resources in Victorian State forests, and related management activities, as agreed by the Treasurer and the Minister, on an commercial basis;

(b) develop and manage an open and competitive sales system for timber resources; and

(c) pursue other commercial activities as agreed by the Treasurer and the Minister.

...

(5) VicForests must operate its business or pursue its undertakings as efficiently as possible consistent with prudent commercial practice.

(6) VicForests must be commercially focused and deliver efficient, sustainable and value for money services.

(7) VicForests must operate in a framework consistent with Victorian Government policy and priorities.[8]

42 Allocation orders for the harvesting of timber resources by VicForests were made in 2013 and 2019.[9] Under the 2019 order, an area of 228,000ha dominated by specified eucalyptus Ash species, and an area of 1,587,000ha of mixed species, were allocated to VicForests giving a total available area for harvesting of 1,815,000ha.

43 The five year harvest area limit imposed on VicForests for the period from 1 July 2018 to 30 June 2023 is 13,700ha for the Ash species area and 70,500ha for the mixed species area. This gives a total of 84,200ha available for harvest over five years, or an average of 16,840ha per annum.

44 The 2019 order also imposes a harvest area limit for the five year period commencing from 1 July 2023. This limit is the same as for the previous five year period.

45 It is a matter for VicForests to plan and select the areas and coupes to be harvested from the available area. This is done by the preparation of a timber release plan under s 37 of the Act.

46 Clause 4 of the 2019 order provides that the objectives of the order are:

(a) to allocate specified timber in State forests to VicForests for the purposes of harvesting and selling, or harvesting or selling, timber resources;

(b) to permit VicForests to undertake associated management activities in relation to that allocated timber;

(c) to specify the conditions and limitations that apply under the allocation order.

47 The 2019 order requires VicForests to comply with important conditions. They include compliance with all relevant laws and codes of practice including the Code, the Standards, and the Code of Practice for Bushfire Management on Public Land 2012.

48 In the Minister's foreword to the Code, the Hon. Lily D'Ambrosio, Minister for Energy, Environment and Climate Change stated in part:

As Victoria heads toward 2030 and transitions away from native forest timber harvesting, it is important to ensure the regulation of the industry is clear and enforceable so the environment benefits.

Clarity and enforceability are not only important features of the Code but they enhance environmental protection outcomes by enabling the duty holder, regulator and stakeholders to focus on material priorities, rather than the architecture of the regulatory regime itself.

The Code of Practice for Timber Production 2014 (as amended 2022) ... is the primary instrument for regulating timber harvesting operations in Victoria's publicly owned State forests, private native forests and plantations. It is pivotal to delivering environmental protection, ecologically sustainable forest management and certainty for forest-based industries, ensuring our public forests are protected for the benefit of all Victorians.

Ensuring the Code is responsive to change is an ongoing process. Regular reviews and updates are important to ensure that the Code remains fit for purpose and reflects contemporary science ...

49 The Code contains the following relevant definitions:

'biodiversity' has the same meaning as in the [FFG Act].

...

'buffer' means a protective margin of vegetation which may be applied to a feature or value, and is generally excluded from any timber harvesting operations. Buffer width or radius is defined as the horizontal distance from which various timber harvesting operations are excluded.

...

'mature' means a growth stage of trees. Mature Ash species have the following characteristics, in order of assessment priority. Note that no single characteristic defines maturity on its own, although the first characteristic (apical dominance) holds the most significant assessment weight:

i. Lack of clear apical dominance within the upper crown

1. Presence of permanent shaping branches with diameters at least one third of the bole diameter at their junction with the bole (clear of collar)

2. Shaping branches are not related either to the presence of long-term natural gaps in the canopy, or to an open grown tree position. In the case of a natural gap, such branches often occur only on one side of the tree, and the 'assessment weight' given to this characteristic may need to be downgraded (i.e. the need for other indicators increases as part of the overall assessment)

3. The shaping branches contribute significantly to lateral crown shape and may be competing with other shaping branches for tree height position, creating a rounded crown appearance (related to (i) above)

4. Apical dominance will also cease at the shaping branch level (having reached maximum length), and can induce secondary (epicormic) branch development along shaping branches, and

5. Some branch death (dieback) and breakage is typical, but not a dominant feature. This loss of leaf area (photosynthetic capacity) can also induce secondary (epicormic) growth to replace lost photosynthetic capacity.

6. Diameters of early mature trees may occur between 90 to 200 cm DBHOB, with typical heights of 50 to 100 m. Diameters of full mature trees may be expected between 150 to 300 cm, with typical heights of 60 to 100 m. This overlap of ranges between trees in different stages indicates why diameter and height are not good indicators of growth stage.

...

'population' means a group (2 or more) of individuals of the same species that are demographically, genetically, or spatially distinct from other groups of individuals.

...

'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).

...

'rare' in so far as it relates to biodiversity, means a group of species that are scarce, infrequently encountered, or very uncommon.

...

'regeneration' in relation to forestry means the renewal or re-establishment of native forest flora by natural or artificial means following disturbance such as a timber harvesting operation or fire.

...

'stand' means a group of trees in a forest that can be distinguished from other groups on the basis of age, species composition, condition, etc. Usually at least 1 ha in size.

...

'understorey' means the layer of vegetation that grows below the canopy formed by the tallest trees in a forest.

...

The purpose of the Code is to provide direction to the managing authority, harvesting entities and operators to deliver sound environmental performance when planning for and conducting commercial timber harvesting operations in a way that:

• permits an economically viable, internationally competitive, sustainable timber industry;
• is compatible with the conservation of the wide range of environmental, social and cultural values associated with forests;
• provides for the ecologically sustainable management of timber harvesting operations in native forests within State forests until 2030 when timber harvesting operations in native forests will cease; and
• enhances public confidence in the management of timber production in Victoria's forests and plantations**.**

51 The status and history of the Standards is described in cl 1.2.8 of the Code in these terms:

Historically, the Management Standards and Procedures was a separate document that was incorporated into the Code in accordance with the [CFL Act]. The Management Standards and Procedures are no longer an incorporated document to the Code and instead form part of the Code itself.

Transitional provisions - Management Standards and Procedures

As of the commencement of the amendments to the Code that inserted Schedule 1 to the Code:

Any thing (including any action, process, right or obligation) commenced but not completed, lapsed or discharged under or in reliance on a provision of the Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2021 prior to the date at which the variation to the Code which inserted Schedule 1 takes effect, is taken to continue under or in reliance on the equivalent provision in Schedule 1. Any approval, authorisation, exemption or temporary variation granted or issued under the Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2021 which has ongoing effect immediately prior to the date at which the variation to the Code which inserted Schedule 1 takes effect, is taken to have been granted or issued under the equivalent clause in Schedule 1 on the same terms as it was issued or granted.

52 The Code uses terminology in a structured way. The mandatory actions required by the Code are important. Clause 1.2.10 defines key expressions used in the Code in these terms:

The following terms are used in the Code to provide a structure for the Code's intended outcomes and the mechanisms within the Code to achieve these. The glossary provides further definitions.

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 harvesting operations, to meet the Code Principles.

Mandatory Actions are actions to be conducted in order to achieve each operational goal. The managing authority, harvesting entities 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.

53 Clause 1.3 of the Code contains six Code principles. Relevantly they are:

1. Biological diversity and the ecological characteristics of native flora and fauna within forests are maintained.
2. The ecologically sustainable long-term timber harvesting capacity of forests managed for timber harvesting is maintained or enhanced.

...

1. Planning is conducted in a way that meets all legal obligations and operational requirements.

Timber production must always be planned and conducted according to knowledge developed from research and management experience so as to achieve the intent of the Code Principles. Application of this knowledge will ensure that timber can continue to be utilised while ensuring that impacts on soil, water, biodiversity, forested landscapes, historic places and Aboriginal cultural heritage are avoided or minimised.

54 Table 1 in cl 1.3 describes the relationship between the Code Principles and the Operational Goals:

Biological diversity and ecological characteristics of native flora and fauna within forests is maintained.

Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and implementation.

...

2.2.2 and 3.2.2 Conservation of Biodiversity

...

Harvested native forest is managed to ensure that the forest is regenerated and the biodiversity of the native forest is perpetuated.

The natural floristic composition and representative gene pools are maintained when regenerating native forests by using appropriate seed sources and mixes of dominant species.

2.2.2 and 3.2.2 Conservation of Biodiversity

2.6.1 and 3.5.1 Regeneration

The ecologically sustainable long-term timber production capacity of forests managed for timber harvesting operations is maintained or enhanced.

Timber harvesting operations are planned and conducted to maintain a long-term ecologically sustainable timber resource.

Harvested native forest is managed to ensure that the forest is regenerated and the biodiversity of the native forest is perpetuated.

Timber harvesting operations are conducted in a manner appropriate to the site, and manages the impact on soil, water and other values, including biodiversity...

Timber harvesting is conducted in a manner appropriate to the site, to manage the impact on soil, water, and other values, including biodiversity...

2.5 Timber Harvesting

3.4 and 4.5.2 Timber Harvesting

Planning is conducted in a way that meets all legal obligations and operational requirements.

Long-term forest management planning maintains an ecologically sustainable timber resource that mitigates the impacts on all forest values.

Effective and inclusive planning processes are used for timber harvesting operations to meet the requirements of this Code.

55 Clause 2.2.2 sets out operational goals for timber harvesting in State forests intended to conserve biodiversity. They include:

Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and management.

Harvested State forest is managed to ensure that the forest is regenerated, and the biodiversity of the native forest is perpetuated.

The natural floristic composition and representative gene pools are maintained when regenerating native forests by protecting long-lived understorey species and using appropriate seed sources and mixes of dominant species.

Forest health is monitored and maintained by employing appropriate preventative, protective and remedial measures ...

56 Clause 2.2.2 also specifies mandatory actions to be taken to address biodiversity conservation risks considering scientific knowledge. They include:

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.

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).

2.2.2.3 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, protection areas, management areas, modified harvest timing, modified silvicultural techniques or retention of specific structural attributes.

2.2.2.5 Protect areas excluded from harvesting from the impacts of timber harvesting operations.

57 Clause 2.2.2 also specifies mandatory actions to be taken to perpetuate the biodiversity of harvested native forests. They include:

2.2.2.10 Retain and protect habitat trees or habitat patches and long-lived understorey species to provide for the continuity and replacement of hollow bearing trees and existing vegetation types within each coupe.

Where Chapter 4 of the Management Standards and Procedures contains prescriptions for a particular type of habitat tree, habitat patch or long-lived understorey species that are applicable to the timber harvesting operations in a coupe and the requirements of all applicable prescriptions in Chapter 4 have been complied with, compliance with the applicable prescriptions is taken to be compliance with this clause in respect of that habitat tree, habitat patch or long-lived understorey species.

58 The second paragraph of cl 2.2.2.10 was added in 2022 and is not found in previous versions of the Code.

59 The Standards apply to commercial timber harvesting in State forests where the Code applies. Clause 1.2 outlines the role of the Standards in the following terms:

1.2.1.1 This Schedule provides standards and procedures to instruct managing authorities, harvesting entities and operators in interpreting the requirements set out in the main body of the Code.

1.2.1.2 These Management Standards and Procedures are in addition to the mandatory actions set out in the main body of the Code**.**

60 Clause 4 of the Standards is concerned with biodiversity. Clause 4.2 addresses fauna and flora. Under the heading of 'Detection-based management', cl 4.2.1 provides:

4.2.1.1 Detection based management obligations apply in any area that may be affected by current or planned timber harvesting operations, and in any area in which an obligation may affect the conduct of such timber harvesting operations (for example, if a protection area would include an area within which timber harvesting operations are proposed).

...

4.2.1.3 If evidence of the presence of a value listed in Table 13 Rare or threatened fauna and invertebrate prescriptions or Table 14 Rare or threatened flora prescriptions is verified, apply and undertake any associated management action specified in the Table.

61 Table 14 is headed 'Rare or threatened flora prescriptions'. For the Tree Geebung, the table describes the value to be protected in Central Highlands forest management areas ('FMAs') as the 'Individual tree' and the 'Management Action' as:

Protect individual trees with a DBHOB of at least 10 cm from disturbance where reasonably practicable.

('Management Action')

62 The acronym 'DBHOB' is defined in the Glossary of the Standards to mean diameter at breast height (1.3m) over bark. A Tree Geebung with a trunk of this magnitude is considered to be a mature tree.

63 Prior to the 2022 amendments, Table 14 described the value to be protected for Tree Geebung in Central Highlands FMAs as the 'Mature Individual' and the 'Management Action' as: '[p]rotect mature individuals from disturbance where possible.'

64 The Forest Management Plan for the Central Highlands, published by the Department of Natural Resources and Environment in May 1998 ('1998 FMP'), was the precursor of the 2014 and 2021 versions of the Code. The plan described 'Tree Geebung' as a rare species. Under Appendix J to this plan, the management prescription for Tree Geebung was:

Protect mature specimens where possible. Investigate methods of regeneration which maintain levels of abundance.

65 When a prior version of the Code was introduced in 2014 ('2014 Code'), the Explanatory Memorandum stated that the 2014 Code and incorporated documents had:

• consolidated the regulatory framework for timber harvesting operations, to make it less complex;

• incorporated rules governing the industry that previously existed across 80 different documents; and

• made forestry regulations clear and transparent for industry and the community, while continuing to protect forest values.

66 The Explanatory Memorandum described the purpose of the 2014 Code as:

to provide direction to timber harvesting managers, harvesting entities and operators to deliver sound environmental performance when planning for and conducting commercial timber harvesting operations in a way that:

• permits an economically viable, internationally competitive, sustainable timber industry;
• is compatible with the conservation of the wide range of environmental, social and cultural values associated with forests;
• provides for the ecologically sustainable management of native forests proposed for cyclical timber harvesting operations; and
• enhances public confidence in the management of timber production in Victoria's forests and plantations.

67 This proceeding was commenced by a writ filed 5 June 2020. On 9 June 2020, Macaulay J made an interim injunction restraining the felling or cutting of trees in the Pat's Corner coupe in the Central Highlands.[10] Other applications and injunctions relating to Tree Geebungs followed - first for the coupes known as Ben 10, Fireman Sam, Gaboon, Myrrh, Flagstaff, Maxibon, Frankincense, and Fishernak, and ultimately for coupes generally in the Central Highlands area.

68 By 9 October 2020, VicForests' Environmental Performance Team had prepared a draft Special Management Plan for Tree Geebung. By a letter sent on Friday 9 October 2020, VicForests' Chief Executive Officer sought urgent endorsement of the plan by the Chief Conservation Regulator within the Department of Environment, Land, Water and Planning ('DELWP').

69 In a letter dated 12 October 2020, the Chief Conservation Regulator responded in these terms:

I am writing in response to your letter of 9 October 2020, which provided an amended Special Management Plan ... regarding the Tree Geebung (Persoonia arborea) for the Conservation Regulator's review.

The Conservation Regulator has reviewed the amended Special Management Plan (SMP) and consider that the Conservation Regulator's feedback contained in the letter from the Chief Conservation Regulator to the CEO of VicForests on 9 October 2020 has been adequately incorporated.

Specifically, the amended SMP:

• Stipulates that each identified mature Tree Geebung in a given coupe must be assessed to determine reasonably practicable protection, and that any decision to disturb mature Tree Geebung is to be formally documented;

• Identifies under what circumstances pre-harvest surveying for Tree Geebung will occur; and

• Revises the position that no more than 10% of any harvestable area should be excluded to protect Tree Geebung, with the identification of this 10% figure acting as a trigger for engagement with the Environmental Performance Team so as to consider what is reasonable and practicable.

It is the Conservation Regulator's position that implementation of the SMP would comply with the regulatory requirements for Tree Geebung as contained in the Code of Practice for Timber Production 2014 and Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2014 (MSP) - in particular, the requirement to "protect mature individuals from disturbance where possible" (MSP clause 4.3.1.1 and Appendix 3, Table 14).

While I understand the pressure VicForests is under with current court cases, I do not intend to make it standard practice for the Conservation Regulator to respond to requests for review of documentation outside standard work hours or in unreasonable timeframes. Please ensure you factor in enough time for the Regulator to review and respond to future requests.

70 On 28 April 2021, the Timber Harvesting Compliance Unit ('THCU') and the Office of the Conservation Regulator ('OCR') published Interim Position Statement No. 1 in relation to Tree Geebung. The position statement included the following:

THCU field experience has found that the protection of individual Tree Geebung dispersed across the net harvest area of a forest coupe is not reasonably practical or proportionate, because:

• Single Tree Geebung retained in the net harvest area outside of protective buffers have frequently been observed to succumb to the effects of wind and solar radiation, become uprooted by wind, and exposed to regeneration burning. Retaining the individual specimens in the open harvest is not effective for their short to mid-term protection/survival.

• Tree Geebung largely occupy the understorey of Wet Forest, and retaining single Tree Geebung in isolation often results in their damage and death as a result of the lawful felling of canopy trees in their vicinity.

• The creation of many islands of retained vegetation across a harvest area to protect individual Tree Geebung or applying a blanket rule of creating an exclusion or buffer is not proportionate and is inconsistent with the prescribed management action as outlined in the MSPs.

• Directing for survey effort to find each mature Tree Geebung and to effectively protect it (necessitating an exclusion area), is not proportionate given the absence of a prescription requiring surveys and exclusion.

Interim Position and Interpretation

The prescription for Tree Geebung and the associated management action do not mandate an absolute prohibition on disturbance but requires timber harvesting mangers (THMs) to avoid and minimise adverse impacts. Mature Tree Geebung specimens are not required to be protected in each and every case to avoid injury. Rather, there is an obligation on THMs to protect mature Tree Geebungs to the extent reasonably capable of being done in the circumstances. Relevantly, the circumstances are that the management of mature Tree Geebung is in the context of:

• the objectives of forest management (to balance values protection with timber harvesting) which include ensuring that timber harvesting takes place while environmental values are provided appropriate protection to a reasonably practicable standard; and

• the absence of a requirement to create an exclusion area or buffer or any other similarly prescriptive protection such is applied to other values that are specified by the Code and MSPs.

The THCU has made the following determinations in relation to mature Tree Geebung:

• Any live Tree Geebung with a diameter at breast height of 10cm or more is considered a mature Tree Geebung. This determination is based upon ecological advice and field observations of specimens of this size bearing fruit.

• Planning for and implementation of protection measures is not considered proportionate or practical for isolated individuals or pairs of mature Tree Geebung that are not located in reasonable proximity (within 20m) to an exclusion area into which they could be incorporated.

THMs should have regard to the following considerations in assessing how to protect mature Tree Geebung, as the THCU has taken the position that they are practical and proportionate management actions:

• for individual mature Tree Geebung, the proximity to an exclusion area or buffer that could be extended to protect the specimen

• for multiple mature Tree Geebung in close proximity to each other:

• the proximity to an exclusion area or buffer that could be extended to protect the specimens; or

• the establishment of an exclusion area within the net harvest area where the specimens will be protected from disturbance by timber harvesting operations, and the potential side effects of exposure to wind and solar radiation and regeneration burning are reduced.

A failure to consider the above advice, or a failure to document how the protection of mature Tree Geebung has been considered, will inform the THCU's assessment of THMs compliance with the prescription.

The THCU also advises that it has taken the position that the prescription is not satisfied if protections that can be taken are not taken, or those that are taken do not go towards protection to a reasonable standard.

This interim position or regulatory interpretation will remain in place until such time that any changes to relevant law come into effect, or a Regulatory Guidance Note (or equivalent) is published by the Conservation Regulator. Upon such a change to law or publication of regulatory guidance, this position shall be formally revoked by Director, Strategic Operations.

71 Following changes to the then versions of the Code and Standards in 2021, VicForests prepared the 2021 SMP. This was amended on 18 July 2022, following approval of the current Code and Standards. The SMP includes the following background:

Tree Geebung, Persoonia arborea F.Muell (Proteacaea), is a small tree species that occurs in the wet eucalypt forests east of Melbourne. The species is endemic to Victoria inhabiting an area of about 700 km² within the Central Highlands. While considered rare on a statewide basis, Tree Geebung is locally abundant throughout its range. In Viridans Biological Database, Paul Gullan states, "When a plant species exhibits such defined specificity for habitat it is often well-adapted to that habitat and is successful within it. This is the case with Persoonia arborea. It is one of the most common shrubs in the central highlands wet forests and responds well to disturbance. It is often found in dense thickets along roads which have been cleared through the forest, sometimes to the exclusion of all other species."

The extensive formal and informal reserve system provides the first level of protection for this species. About 40% of its habitat lies within the Yarra Ranges National Park, with the remaining 60% on other public land.

In May 2021 Tree Geebung was listed as Endangered under the Flora and Fauna Guarantee Act 1988 threatened species list. This listing reflects past estimated declines attributed to habitat loss and future projected declines attributed to elevated bushfire frequencies below the tolerable fire interval as a result of climate change. It also reflects the high level of endemism and restricted range of Tree Geebung (DELWP 2021). In the short-term, timber harvesting and associated activities are identified as a disturbance within its range that may contribute to decline.

Tree Geebung flowers in summer/autumn with immature fruit developing over autumn/winter/spring. Mature fruit is ready for dispersal in spring/summer (French, 1992). The species is fire sensitive and is likely to be killed if exposed to regeneration burns. Individuals are also prone to defoliation and windthrow when left exposed.

Research is being undertaken to learn more about the ecology and population dynamics of Tree Geebung. Preliminary work (Fedrigo et al., 2019) suggests slow growth and a transient soil seed store (Sabine Kasel, University of Melbourne pers. comm.).

Recent observations by VicForests' staff and scientists from the University of Melbourne indicate promising potential for post-timber harvesting regeneration, with significant numbers (>20) of germinants and new recruits of Tree Geebung observed across disturbed areas, including on harvested coupe landings and snig tracks. Findings from DELWP Forest Protection Survey Program flora surveys undertaken in 1990s timber harvesting areas in Noojee have also indicated that Tree Geebung has capacity to readily regenerate following timber harvesting operations. Observations are also being made in areas that have been subjected to multiple disturbances over the past 100 years, from both fire and harvesting. These observations suggest the inferred generation length of 80 years may be high.

72 The SMP includes the following on VicForests' guidance on the operational interpretation of requirements:

The Management Standards and Procedures for timber harvesting in Victoria's State Forests 2021 prescription was amended in 2022 to identify maturity for a Tree Geebung specimen and to replace the words "where possible" to "where reasonably practicable".

For the purposes of this VFSMP, VicForests' position is that "where reasonably practicable" means ensuring that the protection of Tree Geebung is operationally practicable and will meet the objectives/intent of this VFSMP as detailed below; for example, it may not be practical or proportionate to protect all mature Tree Geebung as individuals scattered across the coupe because of risk of damage from weather, harvesting and regeneration activities. Further, consistent with the purpose of the Code (as given in 1.2.2), "where reasonably practicable" means that protection of mature Tree Geebung must consider any impacts on other social, economic, environmental or biodiversity values and avoid forced undesirable operational approaches; for example constructing a side-cut snig track or building a new road to avoid Tree Geebung, which would otherwise be necessary, rather than using an existing footprint. This is particularly pertinent given the propensity for Tree Geebung to grow in mechanically disturbed areas, such as old road footprints, snig tracks and landings. In these instances, the abundance and distribution of Tree Geebung across the coupe must inform the approach taken to protecting Tree Geebung from disturbance, in context with other values requiring protection or management. For example, if there are very few mature Tree Geebung identified elsewhere in a coupe, the priority to protect these individuals is greater and may require trade-offs with other values.

Although it is not required to protect all mature Tree Geebung from damage, each mature Tree Geebung that has been identified in a coupe must be assessed, either in field or by desktop analysis, to determine if it is reasonably practicable to protect that tree. If identified individuals cannot be protected, the reason must be recorded in the forest coupe plan or coupe diary.

The understanding of "where reasonably practicable" has been considered in context with the broad range of prescriptions for flora contained within the Code and MSPs. These prescriptions vary across a range, from those that may be applied with some flexibility to those that have clear and definitive actions to implement. To protect "where reasonably practicable" is a prescription that has inherent flexibility and as such necessarily requires an element of assessment as to its application. Such prescriptions are not absolute and do not mandatorily require the protection of every individual ...

73 Under the heading 'Management Prescriptions', the SMP states:

DESKTOP ASSESSMENT:

During initial coupe planning, the following datasets must be interrogated to determine the likelihood of Tree Geebung presence at a coupe and inform the priority of the coupe for targeted survey:

• Habitat Distribution Model for Tree Geebung

• Records of Tree Geebung in the Victorian Biodiversity Atlas

• Records of Tree Geebung in VicForests Species Observation layer (which includes DELWP Forest Protection Survey Program detections)

• VicForests Species Risk Matrix

A Targeted Species Survey for mature Tree Geebung will be triggered when:

• Mature Tree Geebung records exist within the coupe, or within 500m of the coupe (unless forest type and aspect is unsuitable, if so, consult with Biodiversity team).

• The coupe overlaps with high quality habitat as mapped in the Habitat Distribution Model for Tree Geebung

PRE-HARVEST FIELD SURVEY

Sightings of mature Tree Geebung made during any field visit to coupes covered by this VFSMP must be recorded. These field visits may include both formal and informal surveys, including:

• Coupe Reconnaissance Transects

• Habitat and Hollow Bearing Tree Surveys

• Targeted Species Surveys

• Coupe Marking.

When individual Tree Geebung are found, the following information must be recorded:

• locations of individuals or groups of individuals (both mature and immature) using GPS

• maturity information, such as size (diameter and height) and/or presence of seed and fruit (note: >10cm diameter at breast height are deemed mature)

• number of individuals present at the GPS point.

Targeted Species Surveys for Tree Geebung are to occur on the following basis:

• Surveyors must target and confirm existing detection records in the field

• Surveys for Tree Geebung will be undertaken where a Targeted Species Survey is triggered (see above)

• Surveys will be undertaken on transects no greater than 100m apart. All Tree Geebung observed along and between transects are to be recorded. Each traverse must be recorded as a transect line with GPS

• Surveys may be carried out in conjunction with VicForests hollow-bearing tree pre-harvest surveys which operate on a 100m by 100m grid basis. Surveyors are to search for Tree Geebung when traversing between hollow-bearing tree survey grid points

• Where a mature Tree Geebung is recorded, surveyors must search beyond the planned transect, within 15m of the detection to identify other Tree Geebung close by. This is for the purpose of determining whether the mature individual may form part of a cluster of individuals.

Note:

• Provided that a Targeted Species Survey occurs in accordance with the above specifications, it is not a precondition to harvesting that every mature individual Tree Geebung within a coupe has been identified and recorded. However, all Tree Geebung detections made within a coupe, regardless of survey method, must be recorded

MANAGING FOR TREE GEEBUNG DURING PRE-HARVEST DESKTOP COUPE PLANNING

Tree Geebung Exclusion Areas

• A "Tree Geebung Exclusion Area", for the purposes of this VFSMP, means any area excluded from timber harvesting for the protection of Tree Geebung, identified in accordance with the below method. This includes: (a) a cluster of mature individuals; (b) an individual identified for protection otherwise than in a cluster; (c) an area generated by extending the original planned harvest boundary, or the boundary of an existing harvesting exclusion area, to protect a cluster or individual.

Clusters

• Clusters of three or more mature Tree Geebung are to be identified as part of pre-harvest desktop planning, using the following method:

○ Using GIS, place a 10m radius circle over each field-verified record of a mature individual Tree Geebung.

○ Where 3 or more of these circles overlap or touch, this constitutes a cluster (noting that a cluster must contain at least 3 mature trees).

○ Ensure the count number for each observation record is checked. Some observation records are for multiple individuals in close proximity to each other. If a single GPS point denotes the presence of 3 or more mature individuals, this must also be designated as a cluster. If a single GPS point denotes the presence of 2 mature individuals, and the circle placed on that point overlaps with one other circle, then this must also be designated as a cluster.

○ For the avoidance of doubt, the cluster includes the area of the 10m radius circle placed over the mature Tree Geebungs included in it.

• Where a cluster is identified using the above method, the following protection measures should be applied:

○ Where the cluster is within 10m of the original harvest unit boundary or other mapped timber harvesting exclusion areas, extend the boundary of the harvest unit or exclusion area to encompass the cluster.

○ Otherwise, protect the area of the cluster from harvesting, unless it is not reasonably practicable to do so due to safety considerations or a conflicting prescription in the Code or the MSPs, or where mature Tree Geebung are prolific throughout the coupe, and this has been approved by the Environmental Performance team (see below).

• Where it is not considered reasonably practicable to protect a cluster, due to safety considerations or a conflicting harvesting prescription, advice must be sought from the Environmental Performance team to confirm that assessment, before a decision is made to not protect that cluster.

• Where mature Tree Geebung are prolific throughout the coupe, reasonable and practical protection of mature Tree Geebung must be considered in context with other values requiring management and protection and with regard to impacts on economic factors. In such instances, advice from the Environmental Performance team must be sought, before a decision is made to not protect any cluster.

Individuals

• For individuals (mature or immature) that are not part of an identified cluster, the following protection measures apply:

○ Where an individual is within 10m of the original planned harvest unit boundary or other mapped timber harvesting exclusion areas, extend the boundary of the harvest unit or exclusion area to encompass the Tree Geebung individual.

○ Individuals that are not part of a cluster or adjacent to existing boundaries or other exclusion areas should be protected where it is reasonably practicable to do so. Particular consideration is to be given to whether the following types of individuals can be protected:

• unique, e.g. very large (>30cm DBH), isolated individuals in accordance with processes for type 1 hollow-bearing trees;

• isolated mature individuals to promote seed development and regeneration post-harvest;

• isolated mature individuals in coupes where Tree Geebung occurs infrequently, by placing in a protectable exclusion area.

○ The specific conditions of a coupe must be considered in assessing whether it is reasonably practicable to protect individual mature Tree Geebung, including the location and context of the individual(s) and their risk of exposure, for example from prevailing wind direction that may result in windthrow, and the practicalities of conducting regeneration activities.

○ Immature individuals or stands of immature individuals do not require exclusion from timber harvesting impacts. However, where high numbers of immature individuals are observed in what would be a cluster were they mature individuals, these should be considered for protection as part of multi-value habitat patches.

• Protection of Tree Geebung should adhere to the principles of VicForests' High Conservation Value planning and variable retention harvesting approaches.

TIMBER HARVESTING

• Trees should not be felled into or within a Tree Geebung Exclusion Area. If this does occur, reasons must be recorded in the coupe diary (e.g. safety considerations, accident).

• Machines must not enter a Tree Geebung Exclusion Area. If this does occur, reasons must be recorded in the coupe diary (e.g. safety considerations, accident).

• Slash and harvesting debris must not be allowed to accumulate within 3m of a Tree Geebung Exclusion Area. Mineral earth breaks are to be in place around Tree Geebung Exclusion Areas. These protect Tree Geebungs within such areas from the impacts of regeneration burning.

• Tree Geebung Exclusion Areas may be modified or impacted upon for the purposes of landing or snig track construction where it is not reasonably practicable to avoid doing so (e.g. where other available options are likely to lead to negative impacts on other Code values, cause environmental degradation or require duplication of infrastructure). In these cases, permission to impact the relevant Tree Geebung Exclusion Area must be sought in writing from the relevant Senior Forest Officer.

...

SILVICULTURE AND REGENERATION

• In coupes, or sections of coupes, containing a Tree Geebung Exclusion Area, broadcast high-intensity regeneration burns are to be avoided where reasonably practicable. Modified burning techniques, such as low intensity head and slash burns or mechanical disturbance are to be prioritised.
• Where mechanical disturbance is used for regeneration purposes, protected Tree Geebung individuals and other Tree Geebung Exclusion Areas must be clearly identified for machine operators so that impacts can be avoided.
• Seed collection is permitted within Tree Geebung Exclusion Areas.

74 The 'Bushfire Management Manual 3 - Fuel Management' is a document produced by DELWP with input from Forest Fire Management Victoria ('Bushfire Management Manual'). Part 3.5.1.2 is a work instruction which concerns Planned Burning Control Line Preparation Standards.[11]

75 The manual sets out principles of planned burn boundary location and design, and lists fifteen different classes of burning control lines depending on the expected severity of the controlled burn.

76 Class 1 is entitled 'Major Fuel Break', and is described as a permanent slashed fuel break with an included or adjoining mineral earth vehicle track. It is greater than 20m in width, but not more than 40m. Class 2 is entitled 'Minor Fuel Break', and is described as a permanent slashed fuel break with an included or adjoining mineral earth vehicle track. It has a width of up to 20m.

77 Class 8 is entitled 'Rough Line', and is described as bare ground of 3m width, too rough or steep (>23 deg) for vehicle access, or vehicle access may be one-way only. A 3m mineral earth fire break is prescribed for this class.

78 Where burns are classified as 'High Intensity Slash Burns', a broader range of minimum boundary standards applies. If a slash burn is assessed as having a significant risk of a breach of control lines becoming a bushfire, further requirements apply.[12]

79 Appendix 3 of pt 3.5.1.2 provides technical notes, including as to Fuel Breaks. It provides:

The distinction between a fuel break and a planned burning boundary is important as planned burning boundary construction and maintenance is fully exempt from Native Vegetation Retention planning constraints while fuel breaks greater than 6m wide are not.

80 Throughout the course of the proceeding, interlocutory injunctions were made or undertakings given on a number of occasions. They are listed in the table below with the substance of the injunction stated in brief terms:

Except to remove timber already harvested or to fell or cut a tree or part of a tree that is a safety hazard, the defendant be restrained until further order from felling or cutting trees or parts of trees within specified areas of the Coupe.

Specified areas extended, and a minimum 10 metre buffer imposed for every mature tree geebung within a specified zone.

Undertaking given by defendant to enable it to fell or cut trees to create an access road.

Specified areas further extended, increase of buffer size required for some trees.

Defendant (including its servants, agents or contractors) must not carry out timber harvesting in the coupes until certain exclusion zones have been established and updated maps provided to contractors to show the exclusion zones. Personnel working in relevant coupe must be instructed to not carry out timber harvesting in exclusion zones.

Defendant (including its servants, agents or contractors) must not carry out timber harvesting in the coupes until a person experienced in identification of tree geebungs has appropriately surveyed the coupe, exclusion zones have been marked out, updated maps have been provided to contractors, and personnel have been instructed.

Defendant (including its servants, agents or contractors) must not carry out timber harvesting in the coupes until a person experienced in identification of tree geebungs has appropriately surveyed the coupe, exclusion zones have been marked out, updated maps have been provided to contractors, and personnel have been instructed.

Defendant undertakes to cease timber harvesting in coupe from 5:00pm on 1 February 2021, and will not resume in that coupe until the hearing and determination of the plaintiff's summons filed 1 February 2021.

Coupes in the Central Highlands region of Victoria on which a mature tree geebung has been identified by DELWP ('specified coupe')

Defendant is to send a letter to the Court at least 14 days prior to harvesting in a specified coupe, advising of surveys conducted and protection measures. The defendant must not carry out timber harvesting in a specified coupe until a person experienced in identification of tree geebung has surveyed the coupe, exclusion zones have been marked out, updated maps have been provided to contractors, and personnel have been instructed.

81 Warburton said in submissions that its prescription had been applied by VicForests across at least 35 coupes.

82 The issues in the proceeding are set out in an agreed further amended statement of issues filed 2 August 2022 pursuant to s 50 of the Civil Procedure Act 2010 (Vic). The agreed further amended statement of issues is relevantly as follows:

In this document:

...

"FFASOC" means the Fifth Further Amended Statement of Claim filed 20 July 2022.

...

"Wet Forest Coupe" has the meaning given in paragraph 41N(a) of the FFASOC.

For the purposes of s 50 of the Civil Procedure Act 2010 (Vic), the key issues in dispute in the proceeding are:

1. Does the plaintiff have standing to bring the proceeding?

2. In carrying out timber harvesting operations in:

(a) Pat's Corner; or

(b) alternatively, Wet Forest Coupes in the Central Highlands

in order to effectively comply with cl 2.2.2.4 of the Code and/or cll 4.2.1.1 and 4.2.1.3 and Appendix 1 Table 14 of the Standards as they apply to Tree Geebung and/or cll 2.2.2.2 and/or 2.2.2.10 of the Code, is VicForests:

(c) required in relation to Tree Geebung to implement:

(i) the measures set out in paragraph A of the prayer for relief in the FFASOC; or

(ii) the measures set out in paragraphs AA and AAA of the prayer for relief in the FFASOC; or

(iii) the measures set out in paragraphs AB and AC of the prayer for relief in the FFASOC; or

(iv) any other measures, and if so what measures; or

(d) able to meet those obligations by implementing VicForests' Tree Geebung Special Management Plan.

83 Warburton relies on a Fifth Further Amended Statement of Claim ('statement of claim') filed 25 July 2022. VicForests relies on a Defence to the Fifth Further Amended Statement of Claim ('defence') filed 27 July 2022.

84 In the statement of claim, Warburton defined 'Wet Forests' as that part of the Central Highlands that the spatial data sets provided by DELWP identify as containing Ecological Vegetation Class 30 or 31 or are included within DELWP's habitat importance model for Tree Geebung.

85 In further and better particulars provided to an earlier version of the statement of claim, Warburton sought to include within the definition of Wet Forests:

(a) forest located within 5km of a recorded sighting of a Tree Geebung; and

(b) forest located within 1km of any area that the spatial data sets provided by DELWP identify as containing Cool Temperate Rainforest (Ecological Vegetation Class 31).

86 Warburton relied on expert evidence from Stephen Mueck, Principal Botanist of Biosis Pty Ltd, and from Michael Feller, Emeritus Associate Professor, Forest and Conservation Sciences Department, Faculty of Forestry, University of British Colombia. It also relied on affidavits as to its standing to bring this proceeding and affidavits from persons who had observed or recorded the impact on Tree Geebungs of VicForests' operations in the Central Highlands.

87 VicForests relied on evidence from James Gunn, Manager Forest Practices and Matthew Brown, Forester, of VicForests, and Aaron Organ, Director and Principal Ecologist of Ecology and Heritage Partners Pty Ltd.

88 Mr Mueck and Mr Organ met in a joint conference on 19 and 28 January 2022 and prepared a joint report dated 14 February 2022.

89 All expert witnesses were cross-examined. Lay witnesses were not cross-examined.

90 Mr Mueck prepared five expert reports, and a joint report with Mr Organ. He also gave oral evidence.

91 In his first report, Mr Mueck stated that the Tree Geebung was a species targeted for research by his team of botanists when he was head of the Forest Flora Unit in the Department of Conservation and Environment (now DELWP). His team collected specimen material for carbon dating and regularly inspected populations of Tree Geebung to evaluate flowering and fruiting cycles as well as other aspects of the ecology of the species, such as seed viability and population dynamics. He considered that the information available as to the ecology of the Tree Geebung was substantially greater than was the case with many other rare or threatened species. However understanding of the species was far from comprehensive and a precautionary approach was required when making decisions as to its management and protection.

92 Mr Mueck described Tree Geebung as a large shrub or small tree growing to a height of about twenty metres. It has alternate, oblanceolate and minutely hairy leaves to 10cm long and 16mm wide. It produces cream flowers in summer which develop into an ovoid drupe to about 14mm long and 12mm wide. The seed is encased within a hard seed coat.

93 Plants thought to be up to about 150 years old will flower but only produce small numbers of flowers each year. Only relatively large specimens, thought to be older than 150 years flower prolifically producing thousands of flowers per plant. Over 80% of the fruit produced by each plant may be parasitised by a wasp which destroys the seed.

94 Tree Geebung is fire sensitive, and is generally killed by bushfire. It is understood to be an obligate seed regenerator with seeds stored in a soil seed bank. The longevity of the soil seed store is unknown, but is considered to persist for considerable periods of time, at least in the order of decades. Seedlings have been observed in association with soil disturbance and after fire.

95 Tree Geebung is endemic to the Central Highlands of Victoria and its potential habitat covers much of the Central Highlands Forest Management Area.

96 The predominant natural disturbance within the Wet Forests of the Central Highlands is the occurrence of wildfire. While mature Tree Geebung are typically killed by fire, low intensity fire which does not girdle the tree is survivable. The soil stored seed bank for Tree Geebung is stimulated by the disturbance of the low intensity fire and subsequently germinates to establish new individuals. As long as the fire frequency and intensity is such that individuals can survive fire and seedlings mature to replenish the soil seed store before being impacted by the next disturbance, a population of Tree Geebung can persist in an area.

97 Timber harvesting is a very different disturbance from fire. Harvesting removes the overstorey and has a significant impact on the understorey. Harvesting is generally associated with extensive significant soil disturbance and can occur over many weeks or months.

98 After harvesting, there are additional disturbances associated with rehabilitation works for internal roads, snig tracks and preparation works for the regeneration burn. These additional disturbances combined with the timber harvesting can have a significant impact on understorey species and result in significant species compositional changes.

99 Another disturbance event is the regeneration burn, which can occur many months after the coupe has been prepared for this event. The burn is capable of destroying any regeneration of understorey species.

100 The harvesting of Tree Geebung provides different triggers for its soil stored seed while resulting in the loss of existing plants outside of protected areas. Any seed or seedling that survives the regeneration burn is free to grow and become part of the new understorey.

101 In summary, Mr Mueck said that an individual Tree Geebung requires about 150 years to mature and to be capable of any significant contribution to the soil seed bank. As harvest rotation periods in these forests are designated as between 80 and 120 years, any second rotation harvest would likely result in the local extinction of Tree Geebung unless a proportion of the population was protected in unharvested areas. Additional risk was posed by other environmental modifications such as edge effects to retained forest environments surrounding harvesting and climate change.

102 Documenting the presence of a threatened species is a common requirement for regulatory compliance in biodiversity related matters. There are often specific guidelines based on variables such as seasonal observability (e.g. flowering) and the visibility of the target within its environment. Search requirements detail the intensity of a search, which is generally done systematically using more than one observer and walking at regular intervals across the habitat of the target. The spacing of transects is based on how far an observer can confidently detect individuals from their transect path.

103 Mr Mueck said that VicForests considered the application of the management standards and procedures for threatened species when there is a database record within 500m of the relevant coupe. However, survey data identifying the locations of threatened species was far from comprehensive. The absence of a record within 500m of any area of Wet Forest within the Central Highlands did not imply that Tree Geebung is not likely to be present. DELWP's habitat importance model was a better guide to the potential presence of a threatened species.

104 Tree Geebung is a species found in association with the Wet Forests of the Central Highlands. A Tree Geebung could occur in any of the vegetation types within this region as identified by the habitat importance model. It was possible that Tree Geebung could occur in most, if not all, coupes within the Central Highlands. It was appropriate to conduct a targeted survey for Tree Geebung in all areas of Wet Forest to be harvested within the Central Highlands.

105 Mr Mueck said that the detection of Tree Geebung is difficult in their typical habitat, because the observer is generally hindered in viewing their surrounds by a dense understorey of shrubs and tree-ferns. Visibility in a Wet Forest environment for an observer on foot is typically restricted and even large shrubs can easily be overlooked. Any systematic survey in what is difficult terrain can be equally difficult. With a maximum of 30m transect spacing, an experienced observer should be able to detect Tree Geebung within about 15m in most instances.

106 Mr Mueck said that once detected, mature Tree Geebung need to be protected. Protection implied that the mature individuals detected would not be impacted by harvesting operations or lost to the regeneration burn or subsequently impacted by windthrow of trees during 'regeneration' of the coupe. There could be direct windthrow of individuals and indirect impacts from damage caused by windthrown retained eucalypts.

107 Mr Mueck said that no individual Tree Geebung within the harvest area of a coupe could be considered protected. The likelihood of physical damage by machinery or tree movements during harvesting was relatively high. The likelihood of death or damage during the regeneration burn was also high. Individual Tree Geebung could only be considered protected if they were contained within harvesting exclusion areas.

108 Mr Mueck considered that the extent of harvesting exclusion should be reasonably conservative and provide a high degree of confidence that protection would be achieved. The vulnerability of the edge of retained areas to tree fall, particularly windthrow, and the potential for impacts from the regeneration burn should be considered.

109 A 15m harvest exclusion buffer failed to consider the risk associated with damage from windthrown eucalypts. Most windthrow to understorey trees occurs well within this distance of the forest edge created by clearfelling operations.

110 The inclusion of Tree Geebung within a broader expanse of harvest exclusion zone where individuals are at least 15m from the exclusion zone edge provided a theoretically robust protection area. However prescriptions needed to be written in a manner which requires little if any interpretation or room for confusion.

111 To conservatively manage the risks, Mr Mueck recommended a harvest exclusion buffer of at least 50m from any individual Tree Geebung. This was based on the approximate height of the canopy trees, the vulnerability of trees on the edge of the retained forest to windthrow and the potential damage windthrown eucalypts can do to the retained understorey. Such a prescription was unambiguous and could be universally applied and audited while also achieving the required result of providing a high level of confidence that mature Tree Geebung would be protected. Mr Mueck considered that this level of protection was important to secure populations of this vulnerable species within its restricted Central Highlands habitat and provided a clear precautionary approach to the management of biodiversity assets within a forest designated for timber protection.

112 Mr Mueck confirmed that any Tree Geebung within the general area available for harvest within a coupe was in an extremely vulnerable position and was unlikely to survive the harvesting and coupe regeneration process. If an individual was identified as mature, it needed to be protected.

113 Mr Mueck again recommended a conservative approach to the management of risk to retained individuals of Tree Geebung within a coupe with harvesting to be excluded from within 50m of individuals. This was largely based on the approximate height of the trees being harvested within a Wet Forest Coupe in the region and the need to create a protected area capable of withstanding the exposed conditions prevalent in the early stages of post-harvest regeneration. Protection of an area of 50m of an isolated Tree Geebung within the harvest area of a coupe would exclude up to about 0.8ha of forest from harvesting.

114 The shape of any retained area supporting Tree Geebung is critical in evaluating buffer requirements. Where an individual Tree Geebung was contained within the horizontal plane at 50m radius circle and was at least 15m horizontally within the perimeter of that circle, it could be considered protected.

115 A prescription needed to be a simple process universally applied to avoid misunderstanding, discretion and poor decision making. The simplest, most effective and precautionary outcome was to provide a 50m buffer for any individual Tree Geebung to be protected.

116 Mr Mueck said that mature individuals of Tree Geebung have been aged at between 320 to 510 years old. Tree Geebung were long lived components of the Wet Forest understorey. Tree Geebung individuals require about 100 to 150 years to mature and be capable of any significant contribution to the soil seed bank. DELWP's Forest Regulation Unit had determined that all Tree Geebung individuals with a diameter at breast height ('DBH') of 10cm are classified as mature individuals. This was a reasonable and precautionary threshold.

117 Tree Geebung is generally killed by wildfire and has not been observed to survive timber harvesting operations without local protection measures to exclude the impacts of this disturbance. The reestablishment of the species after disturbance was from seed only. The movement of seeds up to 100m from an existing mature individual was considered optimistic.

118 Where a juvenile Tree Geebung was observed in the absence of a local mature parent plant, it can only be assumed that the parent plant was lost as part of the disturbance event. A subsequent disturbance event before the juveniles mature would likely result in the localised extinction of the species requiring a prolonged period of time before that habitat could be recolonised. Such contractions in the occupation of suitable habitat leave the species more vulnerable to broader extinction events.

119 In this report, Mr Mueck examined 548 folders containing videos and photos recorded at numerous coupes in the Central Highlands, giving his opinion as to whether the tree depicted was a Tree Geebung, and commenting as to the condition of the trees depicted in the videos and photos.

120 Mr Mueck considered it likely that many of the Tree Geebungs identified using 30m transect surveys would not have been identified if the transect survey width had been 100m, even with localised searches around any individuals detected by a targeted survey. It was important to know where individuals were located, so that reasonable decisions can be made regarding their protection.

121 Mr Mueck observed that while both the OCR and the 2021 SMP saw the protection of mature individuals as an objective both appeared to be prepared to do so without adequate information on the location of individuals. Even in a situation where it was not considered necessary to protect every individual, there could be no understanding without adequate survey data as to what proportion of the existing population was actually protected from timber harvesting. The biodiversity value of a population should be analysed in the context of the impact of the proposed harvest on this endangered species rather than the potential area lost to timber harvesting.

122 Mr Mueck noted that it was accepted by the OCR that mature Tree Geebung were unlikely to survive within the harvest area of a coupe as they would invariably succumb to the effects of exposure or the impact of regeneration burn. No individual Tree Geebung could be considered protected unless it is within an unharvested buffer. A buffer of 15m in the middle of a coupe would be ineffective as the trees would likely succumb to windthrow and be difficult to protect from the regeneration burn.

123 The application of a 10m buffer appeared to emanate from the 2021 SMP. Mr Mueck said that the 2021 SMP provided contradictory advice on the application of buffers for Tree Geebung. Pre-harvest desktop protection planning in the 2021 SMP indicated that buffers are not required in exclusion areas established for Tree Geebung as the requirement is only to protect clusters of mature individuals from the effects of timber harvesting and regeneration burning. The 2021 SMP also indicated that protecting all Tree Geebung within the harvest area was not required and that protecting multiple Tree Geebung specimens in excluded areas is an effective management action. Retention of mature Tree Geebung outside of exclusion areas was not a priority. However, the 2021 SMP also stated that Tree Geebung should not be felled into or within exclusion areas established for the protection of Tree Geebung which appeared to contradict the statement that buffers were not required for mature Tree Geebung.

124 Mr Mueck said that if 10m buffers were applied to Tree Geebung, it was likely that such areas would support few if any eucalypt trees. Any eucalypts present were likely to be windthrown as the surrounding forest was harvested. Mature Tree Geebung would also perish.

125 Mr Mueck said that it was unlikely that a Tree Geebung could survive timber harvesting outside of a substantial protective buffer. Localised mass germination had been observed after timber harvesting and regeneration works. Within areas subject to timber harvesting, the potential rotation time of 80 to 120 years for successive harvests is considered a threat to the species. Harvesting effectively removes all mature individuals from the impacted area. While seed may germinate in response to the disturbance associated with harvesting, seedlings may not have enough time to mature before the next harvest rotation or other disturbance, such as wildfire. When the next disturbance arrives, all individuals would again be lost without a soil stored seed bank from which the Tree Geebung could regenerate with the result that the species would become locally extinct.

126 If this sequence of events occurred over a substantial proportion of the species, the population would suffer a significant decline making it far more vulnerable to extinction. Given the time taken to reach maturity, the vulnerability of the species to exposure and fire, its limited dispersal capability and the predation of seed, the Tree Geebung had significant vulnerabilities. Disturbances such as timber harvesting were a significant threat to the survival of the species. The protection of mature individuals was an essential part of its conservation.

127 Mr Mueck was of the opinion that the 2021 SMP would not cater for the ongoing persistence of Tree Geebung populations for the following reasons:

(a) implementation of the actions proposed in the 2021 SMP would not achieve its objectives as it would undoubtedly fail to ensure the continuity and replacement of long-lived understorey species including Tree Geebung within coupes;

(b) application of the 2021 SMP would result in mature individuals of Tree Geebung being confined to pre-existing buffers (e.g. stream buffers) provided within a coupe;

(c) while some buffers may be expanded to envelop individuals where they are in close proximity to an existing buffer, this is unlikely to include a significant proportion of the population of mature plants;

(d) mature individuals within 15m of the edge of buffers will be subject to a level of mortality as a result of harvesting while relatively small isolated buffers were likely to be ineffective;

(e) individuals will be unable to survive the exposed conditions provided within the harvested environment;

(f) the disturbance associated with harvesting and regeneration is likely to result in the exhaustion of the soil seed bank which cannot then be replenished until seedlings that survive the harvesting and regeneration process mature - about 100 years after that disturbance; and

(g) the decline in the local abundance and distribution of mature plants was a significant threat to the continuity and replacement of Tree Geebungs in coupes in the Central Highlands to be harvested. The smaller population is likely to have a significantly lower reproductive potential and greater overall vulnerability to other disturbance events.

128 Mr Mueck considered that while timber harvesting and the subsequent regeneration burn would likely stimulate the soil stored seed bank established by mature plants, the loss of mature plants within the harvest area would mean that this seed bank could not be replenished until seedlings mature. Germination of the Tree Geebung occurred within coupes supporting a seed bank and the survival of those seedlings was uncertain. Once germination has occurred, subsequent disturbance has the potential to eliminate newly germinated plants.

129 As Tree Geebung is an obligate seed generator, if individuals are impacted by disturbance events, they have no capacity to regenerate from a lignotuber (underground trunk) or epicormics buds (growth buds present in the bark). Standing individuals are typically lost as a result of a disturbance event. Their replacement is dependent on seed germination.

130 Tree Geebung seed does not remain on the tree itself. It falls to the ground and is incorporated into the soil as a seed bank. While the persistence of Tree Geebung's soil stored seed bank is unknown, its thick, hard seed coat and the difficulties in getting seed to germinate suggest that it may live for a decade or more.

131 Contributions to the seed bank are made by mature individuals. As maturity in this species is apparently confined to individuals estimated to be 100 years old or more, a population consisting of only immature individuals is vulnerable to extinction from any disturbance likely to impact the entire population in the absence of a soil stored seed bank.

132 Timber harvesting is a series of disturbance events likely to eliminate all mature individuals within the harvest area and potentially within at least 15m of that impact area. Each disturbance event is potentially capable of stimulating the soil stored seed bank and potentially exhausting it.

133 Mr Mueck concluded that timber harvesting was highly likely to contract the distribution of mature plants to areas which were well buffered from that series of disturbance events, and, at best, create a localised population of immature plants. There was also scope for the series of disturbances associated with timber harvesting to exterminate Tree Geebung from the harvest area depending on the timing of the different disturbances associated with the harvesting.

134 A precautionary approach to the management of Tree Geebung should seek to protect mature individuals in appropriate buffers wherever that was possible.

135 Mr Mueck said that the Yarra Ranges National Park provides about 40% of the known habitat for Tree Geebung. The area is a significant reserve for Victoria's mountain forests and simultaneously for Tree Geebung. The level of abundance of Tree Geebung within the National Park was unknown and assumed to be the same as outside the park. However, the majority of habitat was within areas managed for timber harvesting.

136 The management of 60% of the population (the area of Tree Geebung habitat outside the National Park) of Tree Geebung is very significant for the ongoing persistence of the species. A significant impact to Tree Geebung within the area of land managed by VicForests will result in significant environmental damage and have a significant impact on the long-term survival prospects for the species.

137 If the presence of national parks was adequate for the conservation of threatened species, then State Governments would not provide conservation oriented prescription for timber harvesting in State forests. However, it was universally accepted that State forests had an important part to play in biodiversity conservation management and the persistence of rare and threatened species was dependent on sound forest management practices, which protect the species in the long term.

138 The 2021 SMP outlines survey requirements to identify the presence of mature Tree Geebungs. However, it does not require surveys to identify all mature individuals and targeted surveys are only required where records exist within 500m of a coupe or the coupe overlaps with high quality habitat as mapped in the relevant habitat distribution model. While other parameters are identified for recording the presence of this species, the 2021 SMP concentrates on what is not required more than what is required.

139 Overall Mr Mueck said that he had little to no confidence that the application of the 2021 SMP would protect a significant proportion of the mature Tree Geebungs present within a coupe even if they were all detected. The 2021 SMP was reluctant to implement the application of buffers while acknowledging that even where protective areas are put in place, they would be inadequate for the protection of mature individuals.

140 Application of the 2021 SMP would likely result in the disturbance of mature Tree Geebungs within a coupe. Harvesting would not provide for the continuity and replacement of the species within the coupes as the areas of unoccupied habitat created by harvesting could only be recolonised by Tree Geebung over many centuries.

141 As the 2021 SMP would be applied within areas covering about 60% of the known habitat of the Tree Geebung, the 2021 SMP had significant negative implications for the ongoing conservation of the Tree Geebung.

142 Mr Mueck said in cross-examination that the provision of a buffer of 50m provided a reasonable probability of survival for an individual Tree Geebung. Smaller buffers in isolation would not be effective.

143 Mr Mueck said that the buffer for different flora had to be viewed in the context of the ecology of the species to be protected. What was necessary to protect a mature Tree Geebung depended on its location within a coupe. A mature Tree Geebung right on the edge of a buffer zone or an unharvested area was vulnerable to the indirect impacts of harvesting through windthrow or regeneration burn. It was not fully protected even though located in an unharvested area.

144 Mr Mueck observed that the application of parameters such as aspect, slope and prevailing wind direction to determine buffer protection involved the assessment of too many variables. A more beneficial and precautionary approach was to provide a 50m buffer universally. In a high proportion of cases that level of protection would be appropriate. A prescription needed to be a simple process and universally applied to avoid misunderstanding, discretion and poor decision making. It was a risk management process. Even with a 50m buffer, Mr Mueck said that he would not expect every individual to survive.

145 The absence of recorded Tree Geebungs within 500m did not imply that a Tree Geebung was unlikely to be present. A better guide to the potential presence or absence of a Tree Geebung was whether it was in or out of DELWP's habitat importance model.

146 As to the width of transect surveys required to locate mature Tree Geebungs, Mr Mueck said that in a wet forest or damp forest coupe, visibility tended to be poor. A 30m separation gave the highest probability of detection for mature individuals as opposed to 100m. While there can be some situations where things are more visible, that will tend to be in areas that you can move through relatively quickly. Changing the transect width will not offer any great saving in time or detection of individuals. It was better to have standard procedures rather than allow too much variability.

147 Mr Mueck said that the 2021 SMP did not provide designated buffers and only protected clusters. It did not offer a huge amount of confidence.

148 Mr Mueck agreed that in some coupes where there were many Tree Geebungs, the provision of protection to the majority would leave the coupe largely unharvestable. This was an appropriate outcome given the presence of a high density of a threatened species.

149 Mr Mueck said that during his research into the flowering and fruiting of Tree Geebungs, it was obvious that relatively young individuals offered no or very little flowering. Mature individuals produced thousands of flowers and copious amounts of fruit. The reproductive success of the species was dependent on mature individuals at least in the order of 100 years old. The evidence suggested that there was a reasonable degree of scientific certainty. It was quite clear that Tree Geebung were endemic to the Central Highlands. Assuming there is a moratorium on commercial timber harvesting in Victoria after 2030 there would not be the same threat of local extinction as would be the case if the coupe was harvested again in 80 to 120 years. Timber harvesting remained a local threat wherever it occurred, as the seed of a mature Tree Geebung was unable to readily move beyond a 100m perimeter without assistance within the lifetime of the mature plants. The application of the 2021 SMP left a significant proportion of the population within any area that is harvested highly vulnerable.

150 It was assumed that 40% of the population of Tree Geebungs was located within national parks.

151 A 10m buffer as suggested by the 2021 SMP was unlikely to be effective. Harvesting around that area left a very exposed area of understorey with not much protection. It was hardly precautionary and not very protective.

152 Mr Mueck said that if you take a pessimistic view of the future of forests in a climate change scenario, timber harvesting in forests is such that it makes their species composition look as if it's from a dryer community and therefore more vulnerable to bushfire. Tree Geebung would be listed as critically endangered almost immediately. Tree Geebung must grow back from seed whereas other plants can grow from the tree trunk or a trunk underneath the ground.

153 Professor Feller is a highly qualified teacher of forest fire science and management courses over 28 years, and has conducted research as to the ecological effect of regeneration burns for over 40 years. He prepared two expert reports.

154 Professor Feller said that regeneration burns pose risks for vegetation within buffers either within or adjacent to the harvest zone. This occurs either when the burn escapes its planned designated area or when heat from the burn damages the vegetation in the buffers.

155 Professor Feller advised that prescribed burns do escape in Victoria, with 71 escapes recorded between 2005 and 2015.

156 Vegetation adjacent to regeneration burns may be killed or damaged by heat from the burn. The likelihood of plant tissue being killed by fire depended on the burn temperature and the duration of exposure. When the temperature of cells in vegetation is raised to 40°C or more, the cells can be killed. Generally a duration of less than three minutes at 50°C will kill plant cells. Certain plant tissues, such as meristems (growing cells) or buds, are more sensitive to heat when they are growing. Plant mortality depended on the amount of meristematic tissues killed. Tree and shrub stems may be protected from heating by bark, with the degree of protection primarily determined by bark thickness. Tree Geebungs are thin-barked, and relatively sensitive to heat from fire.

157 Even if lethal temperatures are not reached, heating to temperatures of 30°C to 60°C can stress plants and impair their growth or reproduction. Where unlogged patches are left within clearfelled coupes, adverse effects may not be completely eliminated. Even carefully conducted logging and burning operations can cause adverse effects and damage to islands of unlogged forests.

158 Professor Feller advised that the boundaries of an area to be logged and burned should be chosen so as to avoid as many Tree Geebungs as possible. Buffers and Tree Geebungs are more likely to be affected by fire if they are island patches, rather than at the edge of an excluded area. Tree Geebungs and their buffers may not be able to be protected against regeneration burns in areas of steep terrain, requiring careful location of coupe boundaries.

159 Professor Feller proffered the following principles or guidelines to prevent regeneration burns from disturbing vegetation within Tree Geebung buffers:

(a) conduct a field assessment of a proposed logging coupe and adjacent areas looking for endangered species such as Tree Geebungs and opportunities for firebreak construction around buffer areas;

(b) use the field assessment to adjust the coupe boundaries to minimise patches to be protected within the coupe and maximise the patches at the edge of the coupe;

(c) construct large firebreaks of 10m width around buffers to be protected;

(d) minimise slash load near firebreaks;

(e) keep slash out of buffers, and avoid machinery use in buffers;

(f) remove any cull trees or stags left within 1-2m of a buffer edge;

(g) use an ignition pattern which draws fire away from buffers;

(h) use a lower intensity fire;

(i) burn when the dead fine fuel moisture is not too low; and

(j) ensure that there is no fire burning near the edges of the firebreaks before crews leave at the end of the day.

160 Professor Feller noted that VicForests created mineral earth firebreaks around regeneration burns, and that the size of these was variable depending on the specific site conditions. Retained trees within a burn area were typically provided with a 3m wide firebreak.

161 Professor Feller observed that the guidelines for firebreak construction within the Bushfire Management Manual allowed a wide range in firebreak widths from 3m to 40m. The manual described class 8 firebreaks (of only 3m width) as common around regeneration burns, while indicating that approval was required for firebreaks greater than 6m. No guidance was given by the manual for the width of firebreaks designed to protect vegetation in buffers from regeneration burns. Professor Feller considered that narrow 3m firebreaks would only be sufficient to protect Tree Geebungs if there were a relatively low intensity regeneration burn. This required burning low amounts of slash under higher fuel moisture conditions.

162 As regeneration burns had killed vegetation even with 10m wide firebreaks, it would require considerable skill to burn slash without damaging Tree Geebungs using only 3m wide firebreaks. He considered that firebreaks wider than the 3m minimum width were needed to increase protection of Tree Geebungs from regeneration burns.

163 Professor Feller noted that class 8 ('Rough Line') of planned burning control lines in Pt 3.5.1.2 of the Bushfire Management Manual provided for 3m firebreaks. The manual described this class of firebreak as commonly seen on slash burn boundaries.[20] This was effectively the width of a bulldozer blade. The manual stated that the distinction between a fuel break and a planned burning boundary was important as planned burning boundary construction and maintenance was fully exempt from Native Vegetation Retention Planning constraints while fuel breaks greater than 6m were not.

164 Professor Feller said that while he accepted that class 8 was appropriate for some burns, it was not appropriate for all of them. It depended on the amount of fuel, the topography, and other things. While VicForests used variable firebreak widths, the typical firebreak width was 3m.

165 For High Intensity Slash Burns, the manual provided that these burns had a broader range of minimum boundary standards, including classes 8 and 14. However, if a slash burn were assessed as having a significant risk of a breach of control lines becoming a bushfire, it was required to be prepared to the minimum standard for a broad area low intensity burn (classes 1 to 7) or have the risk and any mitigation measures clearly identified in the Planned Burn Risk Assessment. This basically covered all of the classes for slash burns.[21]

166 Professor Feller considered that a 10m firebreak was consistent with the Bushfire Management Manual which allowed for firebreaks of up to 40m. In practice, a little hidden damage may be tolerated to an adjacent forest (as opposed to a buffer) as long as the fire did not escape. The closer the fire was to adjacent vegetation, the hotter the vegetation would be. At times, adjacent vegetation could be killed. To protect adjacent vegetation, something wider than 3m was required. A 10m firebreak increased the likelihood of protecting adjacent vegetation, and was used in Tasmania.

167 Professor Feller considered that if a slope were very steep, rocky or inaccessible to a bulldozer, it might not be possible to provide a 10m or 3m firebreak because it may be unsafe to put people there. With advance planning of coupe boundaries, it should be possible to avoid a situation where a 10m firebreak was not possible.

Affidavits filed 30 November 2021 and 21 February 2022

168 Mr Gunn prepared coupe maps for coupes where Tree Geebung are found showing the differences between the configurations and harvestable areas available under Warburton's methodology and that found in the 2021 SMP.

169 The differences in coupe harvestable areas are shown in Table 1 below.

Harvestable area under Warburton methodology (ha)

170 Mr Gunn noted that VicForests was unable to harvest four particular coupes due to the restrictions imposed by my injunction of 8 February 2021, either because the available harvest area was too small and not viable, or because the requirements caused an obstruction to access points, landing locations or the construction of snig tracks.

171 The differences in harvestable areas for the four coupes are set out in Table 2 below.

Harvestable area under injunction of 8 February 2021 (ha)

172 Mr Gunn said that in addition to the areas of State forest allocated to VicForests by the allocation orders, VicForests was able to harvest other areas of forest in Victoria under forest produce licences.

173 Preparation of a timber release plan involved identifying coupes in the State forest. The plan mapped the coupes and provided spatial data. It was a matter for VicForests to determine the boundaries of coupes. The plan showed the estimated net area for harvesting. Areas within Special Protection Zones were unavailable for harvesting.

174 Mr Gunn said that VicForests conducted coupe reconnaissance surveys and targeted species surveys. Reconnaissance surveys typically involved an initial planning walk to check a range of model values, timber resources and access. The reconnaissance survey was informal and based on the initial desktop data. Targeted species surveys sought to record the extent and location of the selected species in each coupe.

175 Mr Gunn estimated that the total area harvested annually by VicForests in the Central Highlands region was likely to be under 1500ha. He understood that harvesting of timber in the Central Highlands region was to be phased out by 2030, with the volume of timber to be supplied to be stepped down until 2030. He had heard that a step-down was to occur in 2024, although he was unaware of its magnitude.

176 Mr Gunn said that there were exclusion or protection areas in most coupes. Waterways were provided with buffers or filter strips, depending on the stream classification. A buffer would not be harvested except for a crossing. There might also be protection areas, for example for the Leadbeater's Possum, and areas of non-merchantable timber would not be harvested. Practical measures would be taken to avoid impacts on exclusion and protection areas as required by the Code.

177 Mr Gunn said that the 2021 SMP was developed internally within VicForests by three senior personnel, including himself, supported by a consultant forester. Clusters were identified under the 2021 SMP by placing 10m radius circles around each Tree Geebung. If three or more of those circles around mature trees touched or overlapped, that would constitute a cluster.

178 When pressed in cross-examination as to why a 10m radius was adopted, Mr Gunn identified the need to provide guidance to staff on how to identify clusters, but could not recall any specific discussion concerning buffers or the size of buffers. He could not recall any meeting or conversation where the susceptibility of Tree Geebung to windthrow was discussed.

179 In a further affidavit filed 18 July 2022, Mr Gunn stated that it was necessary to revise the 2021 SMP following the approval of the Code and Standards. In revising the 2021 SMP, it was considered appropriate not only to take account of the recent regulatory changes but also to update the 2021 SMP to ensure that it adequately set out the intended operational effect. This included the removal of unnecessary or duplicative text. Mr Gunn said that VicForests' position was that the 2022 changes to the text of the Code and Standards are consistent with VicForests' understanding of what was required before those changes.

180 Mr Gunn also deposed that he would intend and expect the operational implementation of the SMP as revised to produce the same results as those about which he gave evidence in his earlier affidavit and at the trial in respect of the 2021 SMP. VicForests did not intend to alter the way in which it gave operational effect to the Tree Geebung prescriptions. However, it sought to express the intended operational prescriptions more clearly in the 2022 version of the SMP.

181 In cross-examination, Mr Gunn confirmed that the SMP was written with the intention of providing guidance to VicForests' staff as to operational requirements. He acknowledged that the reference in the 2021 SMP to circumstances where Tree Geebung exclusion areas exceeded 10% of the harvestable areas had been removed in favour of the use of the term 'prolific'. He said that the term 'prolific' was intended to apply to the situation where Tree Geebungs were prolific throughout a coupe. A decision whether an individual Tree Geebung not found in a cluster ought to be retained involved a matter of judgement. Where it was not reasonably practicable to protect a cluster, due to safety considerations or a conflicting harvesting prescription, advice must be sought from VicForests' Environmental Performance team. Where individual mature Tree Geebungs were prolific throughout a coupe, advice had to be sought from the same team before a decision was made not to protect a cluster.

182 Mr Gunn stated that VicForests did not take the position that all Tree Geebungs must be retained. Retention of mature individuals outside of exclusion areas was probably a lower priority. He considered that individual trees retained in the harvest area may survive windthrow, defoliation and exposure.

183 Mr Organ prepared an expert report, and a joint report with Mr Mueck.

184 Mr Organ stated that there were approximately 16,093 records of individual Tree Geebungs recorded across the Central Highlands. Of the documented records, 7,583 were mature Tree Geebungs and 8,510 juvenile. Over 98% of these records had come into existence in the last three years as a direct result of targeted surveys by DELWP and VicForests.

185 Approximately 1,584 out of 16,093 documented records of Tree Geebungs (9.8%) were located in protection areas. Additional Tree Geebungs were likely to be present in areas that were protected from timber harvesting.

186 The total potential area of State forest available for timber harvesting in the Central Highlands was approximately 290,215ha, excluding 2,962.75ha of regenerating coupes.

187 Mr Organ said that the Tree Geebung was not present across the entire Central Highlands timber harvesting area, and was essentially confined to the area described in DELWP's Habitat Importance Model. The total potential area of State forest available for timber harvesting where the Tree Geebung was predicted to occur was 100,035ha.

188 To estimate the potential reduction in area available for timber harvesting across the Central Highlands covered by the species' Habitat Importance Model if 50m buffers were provided around all Tree Geebungs, Mr Organ undertook an analysis of 40 coupes where Tree Geebung occupancy data was available. This led him to predict that if a 50m buffer were provided around all mature Tree Geebungs, with the Tree Geebungs located at least 15m horizontally from the perimeter of the buffer area, the total reduction in the potential area available for harvesting expressed as a total surface area would be approximately 1,234.03ha, or about 1.2% of the total area of 100,035ha in the Central Highlands where Tree Geebungs were predicted to occur. If additional Tree Geebungs were recorded, the reduction in available area may be greater.

189 Where Tree Geebungs were scattered across a coupe, and after buffers had been applied, residual areas may not be available for harvesting operations as machinery access may be prohibitively restricted or insufficient timber may be available for harvest.

190 If VicForests were to adopt a 10m buffer around a cluster of three or more mature trees, the reduction in the potential area of the Central Highlands available for timber harvesting would be approximately 36.62ha. Again, Mr Organ observed that a significantly larger area might be unavailable for harvesting if a large number of additional Tree Geebungs were recorded during pre-harvest surveys.

191 Mr Organ reviewed 40 coupes where detailed evidence of Tree Geebungs was available. He concluded that a 50m buffer around all Tree Geebungs, where the Tree Geebungs were located at least 15m horizontally from the perimeter of the buffer area, would result in a 17,516.13ha (17.51%) decrease in the 100,035ha area available for timber harvesting within the Habitat Importance Model area. By contrast, compliance with the 2021 SMP would only result in a 980.3ha (0.98%) reduction of the same area based on an extrapolation of the results of the 40 coupe study.

192 As to the 2021 SMP, Mr Organ was of the opinion that although not all Tree Geebungs would be identified or protected as part of timber harvesting operations, the 2021 SMP would cater for the ongoing persistence of the Tree Geebung population and would provide for the continuity and replacement of Tree Geebungs in coupes in the Central Highlands in which timber harvesting occurs. In this regard, Mr Organ made the following points:

(a) Tree Geebungs were widespread and locally abundant within the Central Highlands;

(b) Tree Geebungs are well represented in protected areas that are not subject to timber harvesting;

(c) a large number of individual Tree Geebungs have been recorded since 2018, and it is likely that the species is present at similar densities across other coupes within the Habitat Importance Model area that have yet to be surveyed;

(d) appropriate operations carried out in accordance with the 2021 SMP would provide ongoing protection of Tree Geebung clusters;

(e) individual trees located in a coupe are at greater risk of being killed by harvesting operations and are more prone to fire and windthrow due to exposure. Under the 2021 SMP, clusters are prioritised over the protection of individual isolated trees;

(f) the application of a 10m buffer around clusters of three or more trees would in many cases protect islands of habitat that support the species;

(g) larger clusters of Tree Geebungs containing the highest density of mature trees, and the protection of clusters within habitat patches which accommodate multiple ecological values, were prioritised under the 2021 SMP;

(h) trees would not be felled into or within exclusion areas established for mature Tree Geebungs, and machines should not enter exclusion areas; and

(i) there should be sufficient fuel reduction (mineral earth break) around the perimeter of protection areas, and the fire intensity of regeneration burns should not result in the mortality of retained trees.

193 Mr Organ recommended ongoing audits of harvested areas where Tree Geebung protection measures had been implemented to ensure that management prescriptions adequately met the 2021 SMP and complied with the 2021 Standards.

194 In cross-examination, Mr Organ confirmed that an area of approximately 190,180ha of State forest in the Central Highlands was available for timber harvesting where Tree Geebungs did not occur. An additional 100,035ha of State forest in the Central Highlands was available where Tree Geebungs were predicted to occur. Even when his most extreme calculation of the effect of 50m buffers was adopted, 77,697ha would still be available for timber harvesting in the Central Highlands where Tree Geebungs were predicted to occur.

195 Additionally, many Tree Geebungs were in wholly or partly protected areas which could not be harvested.

196 Mr Organ was pressed in cross-examination about the need for a buffer of 50m to protect Tree Geebungs from the effects of windthrow and exposure. He did not identify any evidence-based published research to the effect that a 10m buffer would provide adequate protection for Tree Geebungs from windthrow and exposure.

197 Mr Organ was confident that a Tree Geebung could be reliably identified more than 15m from a transect. Tree Geebung was not a small shrub and was conspicuous in a coupe. He acknowledged that there would be variations in the understorey and in visibility across the coupe.

198 Mr Mueck and Mr Organ met in video conference on two occasions. They agreed that the Tree Geebung was a long-lived component of the understorey, as acknowledged in the 2021 SMP. They also agreed that Tree Geebungs were associated with wet forests in a broader sense.

199 The experts agreed that Tree Geebungs were likely to have been lost from the landscape in areas harvested for timber, and that additional Tree Geebungs were present and were likely to be detected in both protected areas and unprotected areas available for timber harvesting. They also agreed that while the Tree Geebung population size is greater than the 16,093 records identified by Mr Organ, the species' distribution is largely confined to the area shown on DELWP's Habitat Distribution Model. Tree Geebung is not a common species when compared with other understorey tree species, and there is no total population estimate.

200 The experts agreed that the frequency and distribution of Tree Geebungs within the Yarra Ranges National Park is unknown. It can only be presumed that the National Park and State forest support approximately the same proportion of the total population as they do proportion of habitat. On this basis, 40% of the Tree Geebung population is within the National Park, with the remaining 60% in the State forest.

201 Mr Mueck and Mr Organ agreed that transect surveys were effective in identifying the locations of Tree Geebungs as part of pre-harvest surveys. They also agreed that in the habitat of wet forests and dense understorey in which Tree Geebungs occur, some trees (particularly juvenile specimens) were unlikely to be detected in targeted transect surveys. Given the requirement under the 2021 Standards to protect mature individuals where possible, it was important to know where individuals were located so that reasonable decisions could be made regarding whether those individuals could be protected.

202 Mr Mueck and Mr Organ differed as to how pre-harvest surveys should be conducted. Mr Organ considered that field surveyors could be expected to use their professional discretion when undertaking targeted surveys. If visibility on either side of a transect was low or obscured, the distance between transects should be less than 100m. He considered that the direction in the 2021 SMP for surveyors to search beyond the planned transect within 15m of a detection to identify other mature Tree Geebungs was adequate to protect a high proportion of Tree Geebungs.

203 Mr Mueck stated that when a maximum transect distance was stated in a survey guideline, the default was often for a surveyor to survey at that distance. In his view, a survey with 100m transects would significantly underestimate the total number of individual Tree Geebungs in a coupe. He was not confident that the majority of plants would be detected, with the result that undetected Tree Geebungs would be lost during timber harvesting. The use of 30m transects was more appropriate, as many individuals were likely to be overlooked if 100m transects were used.

Total surface area to measure the availability of State forest for timber harvesting

204 Mr Organ stated that he had calculated the total potential area of State forest available for timber harvesting in the simplest possible way using two-dimensional areas. He agreed with Mr Mueck that the calculation of an accurate total potential area of State forest available for timber harvesting would require a three-dimensional model. This would take into account physical features such as terrain, slope, the presence of waterways, and rocky outcrops. Both experts agreed that the area available for timber harvesting provided by Mr Organ was an estimation, and was likely to be increased if three-dimensional modelling were used.

205 Mr Mueck questioned the figure of 2,962.75ha for coupes under regeneration after harvesting used by Mr Organ. This amounted to only 1% of total forest cover. The experts agreed that further explanation was needed as to what was defined as regenerating forest across the potential area of State forest available for timber harvesting.

Protection of Tree Geebung as part of timber harvesting operations across State forests

206 The experts agreed that the prescribed Management Action for Tree Geebung required forestry activities to protect mature individuals from disturbance where possible. They also agreed that a mature individual of Tree Geebung had a DBH of 10cm.

207 Mr Mueck questioned Mr Organ about whether his area calculations included areas already protected by special protection zones and species protection buffers. Mr Organ said that pre-existing protection areas were not accounted for as part of his calculations.

208 The experts agreed that a strategic approach to the protection and conservation of Tree Geebungs across the species' distribution, including population and area protection targets and specific management actions at a population level, was required.

209 Both experts also agreed that the following requirements/statements in the 2021 SMP were somewhat ambiguous and contradictory, and may require clarification to prevent uncertainty as to the application of the Tree Geebung protection measures within coupes:

(a) timber harvesting exclusion areas for clusters that exist as islands from boundaries or other exclusion areas if the clusters cover an area greater than 0.03 hectares, consistent with VicForests' retention harvesting [principles]; and

(b) buffers are not required on exclusion areas established for Tree Geebung - the requirement is only to protect clusters of mature individuals [from] the effects of timber harvesting and regeneration activities.

210 Both experts agreed that where Tree Geebungs occur in high densities across specific coupes and where there is insufficient protection of the forest through special protection zones or other protective measures, the application of Tree Geebung protection buffers or timber harvesting exclusion areas would result in timber harvesting being significantly restricted or impractical across a large proportion of the relevant coupes. There may be situations where timber harvesting may need to be abandoned, or the harvestable area significantly reduced, in a specific coupe.

211 Mr Mueck and Mr Organ disagreed about the extent of the buffer required to protect mature individuals. Mr Mueck recommended the universal application of a 50m buffer to protect mature individuals, which was easy to interpret and avoided the potential for confusion. Mr Organ stated that the objective and protection measures outlined in the 2021 SMP for the protection of clusters of mature trees adequately catered for the future protection and persistence of the species in the landscape.

212 Mr Mueck had little confidence that a 10m buffer would adequately protect Tree Geebung from windthrow and other environmental factors. In his view, a 50m buffer should be applied to every mature Tree Geebung which was identified in a coupe to maximise the potential for survival of this endangered species.

213 Mr Organ stated that ongoing audits of harvested areas where Tree Geebung protection measures had been implemented were recommended to ensure that the management prescriptions adequately met the objectives of the 2021 SMP. Mr Mueck agreed but considered that the prescriptions in the 2021 SMP were insufficient to protect Tree Geebungs.

214 The experts agreed that there was no Tree Geebung population protection target across the species' range. Protection was based on a site specific coupe level assessment, and not on a population wide approach. There was no defined target for the protection of the Tree Geebung in the 2021 SMP.

215 Mr Mueck and Mr Organ were in agreement as to many matters. Where there are differences between them, I prefer the evidence of Mr Mueck. He has undoubted expertise, and has studied the Tree Geebung over many years. He has a very high level of familiarity with current and previous research into the species. In this proceeding, he has provided a series of expert reports carefully and authoritatively analysing the botanical and ecological issues concerning the application of the 2021 Code and 2021 Standards to the Tree Geebung. Mr Organ was retained more recently, and was not as familiar with research into the Tree Geebung. His opinions were not as well founded as those of Mr Mueck on current scientific knowledge.

216 VicForests relied on evidence from Matthew Brown, an experienced forester with VicForests, who was formerly the Regeneration Coordinator - West Gippsland. Mr Brown is responsible for the regeneration of the forests of West Gippsland following harvesting. This involves the preparation and treatment of harvested areas within coupes through burning or mechanical means, and the establishment of new forest through sowing or planting seedlings.

217 Mr Brown deposed that VicForests' approach to minimising the impact of regeneration burns on forest species took account of the site specific features of each coupe. The methods and measures to be used for each regeneration burn were planned by experienced personnel. Regeneration burns were used to remove slash material to create a site suitable for sowing seed, and where possible to protect any values from the detrimental effects of burning.

218 Regeneration burns involved a detailed planning process designed to identify values, plan burning operations, seek stakeholder engagement and assess risk prior to approval to ignite a burn. Management actions to control regeneration burns included the redistribution of slash, the control of burn conditions, undertaking ignition when conditions were wetter, and the management of fuel ignition within the burn area.

219 Low intensity burns can be difficult to control as they are more responsive to factors outside the control of fire fighters and remain alight for longer periods increasing the risk of fire spotting outside the burn area.

220 Fast ignitions create a high fire intensity that is relatively easy to manage as convection is predictable and the fuel can be burnt quickly, reducing the risk of fire outside the planned area.

221 Large or complex harvested areas can be segmented into smaller and more manageable areas to be treated separately. Sometimes it is not possible to avoid Tree Geebungs being left in isolated patches within a coupe - in these cases mitigating actions would be undertaken to protect values.

222 All regeneration burns had a mineral earth boundary track installed between the slash fuel and the adjacent forest. The mineral earth break is not flammable and is installed to keep the fire within the planned burn boundaries. Individual trees retained within the planned burn area also have a three metre mineral earth break installed around them to reduce the risk of catching alight during the burn. Sometimes the width of a mineral earth break may need to be increased to reduce the risk of fire impacting known values or escaping the planned burn areas. This may be the case where there is a steep slope directly below an identified value, or the fuels outside the planned burn are easily combustible, or the ability to patrol and respond to fire outside the burn boundary is limited. In those cases, mineral earth breaks could be increased up to 50m. Site specific conditions could also hinder the creation or efficacy of fire breaks, such as rocky or steep terrain.

223 Where regeneration burning is planned, restrictions on slash and bark piles are imposed. It is not always appropriate to minimise the quantity of slash in any particular area. Even slash distribution is preferred to assist burn coverage and make sure that the whole burn area is ignited.

224 The fire intensity and convection are closely related. It is very difficult to achieve a low intensity burn with enough convection to draw fire away from a boundary. If site-specific topographic features such as rocky terrain hamper fire breaks, a high intensity burn may be necessary to draw the fire away from the identified value. The features of a site can significantly impact the suitability of the measures available for minimising the impact of regeneration burns on identified values including Tree Geebung.

225 In oral evidence, Mr Brown said that the use of mineral earth breaks wider than 3m had changed over the last two to three years from a rare event to a common practice in regeneration strategies. In prior times, protection of Tree Geebung during regeneration burns had not been as fully on the radar.

226 Mr Brown said that the risk of damage or destruction of a Tree Geebung was dependent on its position in relation to the burns, including the distance between the tree and the burn. In the event that an individual Tree Geebung was inside a burn area with no protection except for a 3m fire break, it was highly likely that there would be some effect of a burn on the tree. Since the imposition of a 50m buffer around Tree Geebungs, there has been an increase in the overall post-harvest abundance of the species in coupes.

227 Warburton relied on evidence from Paul Colcheedas, horticulturist, Jake McKenzie, Wilmars Mikelsons and Alice Hardinge, who conducted inspections of numerous coupes where harvesting by VicForests had taken place. They recorded their observations as to the effect of timber harvesting and regeneration burns on Tree Geebung. VicForests did not cross-examine these witnesses. I accept their evidence.

228 Mr Colcheedas deposed to numerous affidavits. In his first affidavit, he deposed as to an uprooted Tree Geebung inspected by him in the company of Mr McKenzie at the Pat's Corner coupe in May and June 2020. In later affidavits, he deposed as to inspections of the coupes Ben 10, Billowcase, Deadshot, Dragon Ball Z and Fireman Sam in July and September 2020. He tabulated the results of his inspections of the Ben 10, Billowcase, Deadshot and Dragon Ball Z coupes. Of these, only the Billowcase coupe was unburnt.

229 Mr McKenzie also deposed to numerous affidavits. In his first affidavit, he deposed as to the situation of Tree Geebungs at the Pat's Corner coupe. He subsequently deposed as to his inspection of 18 harvested coupes in July 2020, and his later observations of a further eleven coupes.

230 Mr Mickelsons, secondary school teacher, inspected various coupes in the Central Highlands which had undergone regeneration burning. He found numerous burnt, damaged or dead Tree Geebungs.

231 In an affidavit filed on 5 June 2020, Ms Hardinge deposed as to her observations at the Pat's Corner coupe on 4 June 2020.

232 The first issue raised in the agreed further amended statement of issues is whether Warburton has standing to bring the proceeding. It is not in dispute that Warburton has the onus of establishing that it has standing.[22]

233 In an earlier decision, I held that Warburton had established standing on a prima facie basis, and that there was a serious issue to be tried as to whether Warburton had a special interest to support the conduct of the proceeding.[23] VicForests sought leave to appeal from this decision. The Court of Appeal refused the application for leave to appeal.[24] The Court of Appeal observed that the outcome of the decision on standing in Kinglake v VicForests may influence the outcome in this proceeding.[25]

234 In the statement of claim, Warburton pleads that the subject matter of the proceeding is 'the protection of Tree Geebung, a threatened species of tree that is endemic to the Central Highlands and is provisionally classified by [DELWP] as endangered'.

235 Warburton pleads that it has a special interest in:

(a) the preservation of a particular environment, namely the State forests located in the Central Highlands; and

(b) the observance by the defendant of the limitations on its conduct of timber harvesting in the Central Highlands which the legislature has imposed.

(a) are more than a mere intellectual or emotional concern;

(b) go beyond those of members of the public in upholding the law; and

(c) involve more than genuinely held convictions.

237 Warburton provides lengthy particulars of its claims to have the asserted special interests, which may be briefly summarised as relying on Warburton's:

(a) mission statement and values;

(b) membership of the Central Highlands Alliance;

(c) public activities including rallies, meetings, forums, walking tours and educational courses;

(d) publications, submissions, engagement with media and petitions;

(e) preparation and lodgement of numerous forest reports concerning Tree Geebung with the Office of the Conservation Regulator ; and

(f) grants and recognition from local government authorities.

238 Warburton relies on these matters individually and cumulatively.

239 To establish its standing, Warburton relies on numerous affidavits of Nicole Fox, its Vice President, and Jennifer Conway, its Secretary, as to its statement of purposes, mission and activities. More generally, it relies on all of its deponents as to the nature and scope of its activities. VicForests did not adduce any evidence as to Warburton's standing. It did not cross-examine Ms Fox or Ms Conway or other Warburton witnesses apart from expert witnesses. I accept Warburton's evidence as to standing, save for paragraphs of affidavits and exhibits which were successfully objected to by VicForests.

240 In the defence, VicForests generally denied Warburton's allegations as to standing. While in VicForests' prior version of the defence, it had admitted that Warburton had standing in relation to the Pat's Corner coupe, it now gave notice that it would seek leave to withdraw that admission. However, it did not do so at or before the trial. At the trial, VicForests called no evidence which might displace the prima facie finding that Warburton had standing. It accepted that I would be bound by the reasoning of the Court of Appeal in VicForests v Kinglake Friends of the Forest Inc as to matters of standing and would inevitably conclude that Warburton had standing.[26] In view of this concession, the parties did not make substantial submissions as to standing or as to the application of Kinglake to the facts of the present case. However, VicForests formally submitted that Kinglake did not reflect a correct view of the law and was wrongly decided. At the trial, it advised that it had sought special leave to appeal from the High Court of Australia from the decision of the Court of Appeal in Kinglake.

241 VicForests' application for special leave to appeal against the decision in Kinglake was heard by the High Court of Australia on 8 April 2022, and was refused with costs on the basis that the decision was not an appropriate vehicle for considering the question of standing.[27]

The seminal case: Australian Conservation Foundation Inc v Commonwealth

242 In my decision in Warburton Environment Inc v VicForests (No 2), I set out the principles relating to standing.[28]

243 In Australian Conservation Foundation Inc v Commonwealth, Mason J stated the general principle that:

[A]part from cases of constitutional validity ... a person, whether a private citizen or a corporation, who has no special interest in the subject matter of the action over and above that enjoyed by the public generally, has no locus standi to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty.[29]

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.[30]

245 In 2020, the Court of Appeal in Maguire v Parks Victoria applied ACF, stating that ACF established the rule for standing where a private person or entity sought to commence a proceeding to enforce a public right or duty.[31]

246 In Kinglake, the plaintiff ('Kinglake FF') sought to restrain VicForests from what were alleged to be unlawful logging operations. VicForests contested Kinglake FF's standing. The Court of Appeal undertook an extensive review of relevant authorities, including ACF.

247 The Court of Appeal noted that the forests of the Central Highlands were a place of scientific investigation and the development of knowledge about the natural world, and for the enjoyment of nature, with the result that they were a resource for Kinglake FF as much as for VicForests. The Court considered that a breach of the regulatory controls designed to balance the competing demands on the forests could be said to involve a disadvantage to Kinglake FF which gave rise to more than a sense of grievance.[32]

248 The Court discussed the significance of ACF to the Kinglake case in these terms:

Given the issues in dispute, the distinction between ACF and Kinglake FF is not simply one of scale or geographic coverage but of relevantly different interests. The distinction lies in Kinglake FF's concentration of effort in and commitment to preservation, understanding and enjoyment of the Central Highlands native forests, which underscores its interest in the subject matter of the proceeding, which itself is quite specific. The point can be illustrated by reference to the decision of Davies J in ACF v Minister for Resources considered above. ACF was found to have standing to pursue litigation directed to protecting the environment in one context but not in another. That does not signal the application of a different test, but a recognition that context is critical, which is a matter that cannot simply be explained by the fact that in the Federal Court case the jurisdiction was statutory.[33]

249 The Court noted the importance of identifying the subject matter of the proceeding in its factual and legal context:

[I]t is important that the matters relied on to establish standing relate back to the specific issues in the litigation. In order to consider this matter it is necessary to identify the subject matter of the litigation at the appropriate level of abstraction. Depending on the context, it may be accurate to describe the issues as involving the protection of the environment in the Central Highlands, the preservation of trees in the Central Highlands forests, the lawfulness of logging in that area, or the alleged non-compliance with the specific prescription relating to buffers.

The judge described the subject matter of the proceeding as being "the trees in State forests in the Central Highlands region of Victoria that VicForests proposes to cut down, remove, and sell, and which Kinglake FF seeks to protect". In our view, the description given by the judge was incomplete. It is certainly correct to say that the objective of the litigation is to protect certain parts of State forests in the Central Highlands and that it involves the protection of trees. However, given that the purpose of the proceeding is to enforce a regulatory standard in relation to logging, the central issue raised by the litigation is the lawfulness - and not the merits - of proposed logging operations.[34]

250 In Kinglake, VicForests sought to characterise the subject matter of the proceeding as 'compliance with the buffer restriction', and it submitted that activities carried out by the plaintiff connected to broader issues of environmental protection or involving different prescriptions had no connection with the subject matter of the proceeding. Rejecting VicForests' characterisation, the Court considered that:

For the purposes of considering standing in this proceeding, it is wrong to confine the subject matter of the proceeding in the way proposed by VicForests. The issue in this proceeding can be expressed more generally as being whether there has been compliance with environmental prescriptions and the lawfulness of certain tree removal operations in the Kinglake and Central Highlands forests. In the context of a regulatory regime that imposes multiple requirements at varying degrees of specificity, it would be artificial to approach standing as if each regulatory requirement gave rise to a separate subject matter.[35]

251 The Court of Appeal found that a sufficient connection existed in the case before it:

Whether generally expressed objects of an environmental protection organisation establish a sufficient connection to the actual subject matter of a legal proceeding will involve questions of degree. In ACF, the connection was so generally expressed, by reference to statements of objects, that ACF was really no more than an advocate for the environment generally.

ACF did not plead any particular connection to the specific environment at Farnborough and relied on a general interest in the environment as a whole. Even less did it seek to establish a particular connection to the foreign exchange transaction. The position of Kinglake FF is, again, quite different.

As its activities demonstrate, Kinglake FF has an interest in its local environment, including the lawfulness of logging in the Central Highlands. It is not the case that Kinglake FF seeks to enforce prescriptions unrelated to the preservation of forests in the Central Highlands. It does not seek, for example, to secure compliance with obligations imposed on directors to account for overpaid expenses or with OH&S requirements relating to the use or storage of machinery. The proceeding is directly related to Kinglake FF's special interest in preserving the native forests of the Central Highlands.

In ACF, the connection between the exercise of power by the [Reserve Bank of Australia] and the [Environmental Impact Statements] was attenuated, in that the [Environmental Impact Statements] was only a matter to take into account. In the present context, the prohibitions are direct, mandatory and informed by the protection of threatened species. There is a close connection between the work of Kinglake FF outside of the litigation and the issues in dispute. [36]

252 Relying on the decision of the High Court in ACF, VicForests submits that Warburton cannot demonstrate a 'special interest' in the enforcement of the Tree Geebung prescription in respect of timber harvesting operations in the Central Highlands.

253 VicForests submits that the Court of Appeal in Kinglake incorrectly distinguished ACF, and incorrectly described the subject matter of the proceeding removing the need for Kinglake FF to show that a regulatory contravention of which it complains intersects with the matters founding its claimed special interest. VicForests did not make submissions as to why it was Kinglake incorrectly distinguished the decision in ACF but relied on its written and oral submissions filed prior to the interlocutory judgment as to standing.

254 While much of the evidence in this proceeding dealt with specific measures such as firebreak and buffer sizes, I accept that the subject matter of the proceeding should not be confined narrowly by reference to individual measures. As the Court of Appeal said in Kinglake:

[i]n the context of a regulatory regime that imposes multiple requirements at varying degrees of specificity, it would be artificial to approach standing as if each regulatory requirement gave rise to a separate subject matter.[37]

It is fair to describe the subject matter of this proceeding for the purposes of standing as the protection of Tree Geebung within the Central Highlands from destruction or damage by the harvesting activities and regeneration burning conducted by VicForests.

255 In Kinglake, the Court of Appeal observed that a breach of the regulatory controls designed to balance the competing demands on the forests of the Central Highlands could be said to involve a disadvantage to Kinglake FF which gave rise to more than a sense of grievance.[38] The same can be said of Warburton in the present case.

256 The affidavits of Ms Fox and Ms Conway establish that Warburton was incorporated in 2008. It has been registered with the Australian Charities and Not-for-profits Commission since 3 December 2012. It maintains a Facebook page which sets out its statement of purposes. A central purpose is the protection and restoration of ecosystems in the Central Highlands. As at 4 June 2020, it had 252 members and 1,352 Facebook followers.

257 Warburton has organised many activities in support of the preservation and promoting awareness of the local natural environment. It has attracted two grants from the Yarra Ranges Council, and was invited by that Council to prepare a feasibility study in conjunction with the Council for the re-creation of the Warburton to Walhalla working track. It has provided educational ecological activities for local students, conducted community meetings and forest tours of the Central Highlands, maintained a regular presence in Warburton's main street, conducted an information stall at a community market, provided an active surveying group fully equipped with professional photographers, arranged a pilgrimage to Mt Bride, conducted a Tall Trees festival, participated in a rally on the steps of Parliament House, a vigil at the Pat's Corner coupe, conducted a delegation to meet with VicForests' representatives, and organised a petition to stop logging on Mt Bride canvassing in excess of 2,000 signatures.

258 Warburton's representatives and supporters have attended numerous coupes in the Central Highlands before and after harvesting, and before and after regeneration burning, identified numerous Tree Geebungs or dead or damaged Tree Geebungs, plotted locations using GPS, and prepared and reviewed many maps of locations in the Central Highlands. Warburton has provided guided self-drive tours to highlight the effects of clearfell logging.

259 Of the matters relied on by Warburton to support its claimed standing, the most significant and determinative is the preparation and submission of numerous forest reports concerning Tree Geebung in coupes in the Central Highlands. At the time of my interlocutory judgment in February 2021, Warburton had prepared and submitted 16 such reports.[39] Between December 2020 and July 2021, Warburton prepared and lodged a further 11 forest reports with the OCR. Preparation of the reports involves one or more attendances at coupes or proposed coupes in the Central Highlands, photographic and GPS records, forestry and ecological expertise, compilation of a scientific report, and a considerable investment of time by the authors.

260 The preparation of the forest reports is clearly related to the subject matter of this proceeding, viz the protection of Tree Geebung within the Central Highlands. The amount of time, effort and resources expended in preparing and submitting the large number of forest reports goes well beyond that which would establish a 'mere intellectual or emotional concern'. As was the case in Kinglake, there is a close connection between the activities of Warburton outside of the litigation and the issues in dispute. On this basis, I am satisfied that Warburton has a special interest in the subject matter of the proceeding.

261 For these reasons, I conclude that Warburton has standing to bring this proceeding and seek the relief sought.

262 The principles of statutory construction are well established, and apply to subordinate instruments as well as statutes.[40] In Project Blue Sky Inc v Australian Broadcasting Authority, the majority said:

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[41]

263 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, the majority of the High Court said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[42]

264 The plurality of the High Court emphasised the importance of text, context and purpose in SZTAL v Minister for Immigration and Border Protection:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[43]

265 In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[44]

266 These principles are consistent with s 35(a) of the Interpretation of Legislation Act 1984 (Vic), which requires that when interpreting a subordinate instrument, a construction that would promote the purpose or object underlying the instrument is to be preferred to a construction that would not promote that purpose or object.

267 An important consideration in the interpretation of subordinate legislation such as the Code and the Standards was stated by Lord Reid in Gill v Donald Humberstone & Co Ltd:

... I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence ... They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing sections of an Act of Parliament ... Of course difficulties cannot always be foreseen and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable. But if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.[45]

268 A similar view was taken in Environment Protection Authority v Condon as Liquidator for Orchard Holdings (NSW) Pty Ltd (in liq), a case involving environmental waste regulations, where Leeming JA said:

It is legitimate to have regard to the fact that regulations are less carefully drafted, and less keenly scrutinised, than primary legislation ...

Undoubtedly, there is much less scrutiny of regulations by either chamber than of bills. Regulations must be laid before each chamber and may be disallowed ... but that is quite different from the passage of a bill through the chambers and its receiving assent. It is true that the Legislative Review Committee is to consider and report on both bills and regulations ... but the function of that committee is not primarily to call for improved drafting.[46]

269 In MyEnvironment Inc v VicForests, Tate JA observed that the legislative scheme supporting the Code and the Standards has a multiplicity of purposes. An earlier version of the Code (then in force) established seven principles to achieve a balance between environmental protection and timber production. The principles provided not only for the maintenance of biological diversity and the ecological characteristics of native flora and fauna, but also for the maintenance or enhancement of the ecologically sustainable long term timber production capacity of forests managed for timber production. The principles aimed at managing the multiple roles of forests and plantations in maintaining natural heritage, biodiversity, health, wellbeing and prosperity.[47] The relevant regulatory instruments had multiple purposes and were informed by a preponderance of scientific evidence.[48]

270 The 2007 version of the Code under consideration in MyEnvironment was revised in 2014, 2021 and 2022. The 2007 version contained seven code principles. The Code currently contains six principles, three of which are relevant to the present case.[49]

271 The current Code principles include key principles found in (or relevantly identical to those in) the 2007 Code, such as 'biological diversity and the ecological characteristics of native flora and fauna within forests are maintained', and '[t]he ecologically sustainable long-term timber harvesting capacity of forests managed for timber harvesting is maintained or enhanced'.

272 An important change made in the 2021 Code is the introduction of a sunset date for timber harvesting in native forests within State forests. The third purpose of the 2021 Code was modified so that it now provides for the ecologically sustainable management of timber harvesting operations in native forests within State forests only until 2030 when timber harvesting operations in native forests will cease. Timber harvesting within native forests of State forests is no longer considered an enduring industry but an industry with an eight-year time horizon. This sunset date was left unaltered in the Code. While it is open to a future Government to amend the Code and provide a different sunset date or none at all, VicForests is required by law to act in accordance with the Code as is presently stands.

The use of words in their ordinary and natural meaning

273 The Code and the Standards use many words in their ordinary and natural English meanings, often without definition and sometimes with the benefit of a definition expressed in broad or conceptual terms.

274 Some caution must be displayed when considering the meaning of ordinary English words left undefined in an instrument. A Court should not attempt an absolute or rigid definition of such words. As the Court of Appeal said in Hazelwood Power Partnership v Latrobe City Council:

[I]t is submitted on behalf of Hazelwood that, despite stating that the words "public drain" are used in their common and ordinary meaning, the "trial judge did not state or identify what the common and ordinary meaning is". This threshold criticism is misconceived. The meaning of ordinary English words is a question of fact. A conclusion that the statute uses words in their ordinary meaning does not require (and indeed precludes) a further definition of the words. The words are to be treated in effect as the best words to describe the relevant concept.[50]

275 In Franceschini v Melbourne & Metropolitan Board of Works, Tadgell J pointed to the difficulty of ascribing a precise meaning to words which are themselves no more than concepts, or where there is a definition consisting of words of imprecise meaning:

It is evident, however, that what is within and outside the purpose as described will often depend on questions of fact and degree. Borderline cases will therefore arise on which opinions might legitimately differ ...

A determination of the meaning to be given to ordinary non-technical English words (which, in my opinion, those in the definition of "institutional home" in the ordinance are) involves a matter of fact and not a question of law.[51]

276 In Chopra v Department of Education and Training, the Court of Appeal described the distinction between a question at law and one of fact when applying a statutory provision in these terms:

The principles for distinguishing between questions of law, questions of fact and mixed questions of law and fact are well established. However, those principles are difficult to apply in practice. What is the proper meaning, as a matter of construction, of a statutory provision is usually a question of law. Ordinarily, whether facts fully found fall within a statutory provision, properly construed, is a question of law. However, where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the question whether they do or not is one of fact.[52]

The relevant provisions of the Code and Standards

277 There are four main provisions of the Code and Standards which affect Tree Geebung. They are:

(a) cl 2.2.2.10 of the Code, which requires VicForests to retain and protect long-lived understorey species within each coupe. However, cl 2.2.2.10 also provides that where ch 4 of the Standards contains prescriptions for a particular type of long-lived understorey species that are applicable to the timber harvesting operations in a coupe and the requirements of all applicable prescriptions in ch 4 have been complied with, compliance with the applicable prescriptions is taken to be compliance with cl 2.2.2.10 in respect of that long-lived understorey species;

(b) cl 4.2.1.3 of the Standards relevantly provides that if the presence of a value listed in Table 14 (Rare or threatened flora prescriptions) is verified, VicForests is to apply and undertake any associated management action specified in the Table. The Management Action prescribed in Table 14 in respect of Tree Geebung is to '[p]rotect individual trees with a DBHOB of at least 10cm from disturbance where reasonably practicable';[53]

(c) cl 2.2.2.4 of the Code, which requires VicForests to identify biodiversity values listed in the Standards prior to roading, harvesting, tending and regeneration, and to address risks to these values through management actions consistent with the Standards; and

(d) the precautionary principle, which is to be applied to the conservation of biodiversity values under cl 2.2.2.2 of the Code.

278 Clause 1.2.10 of the Code directs VicForests, as a managing authority, to undertake all relevant mandatory actions to meet the objectives of the Code. Failure to undertake a mandatory action results in a breach of the Code, and of ss 37(3) and 46(a) of the Act. Clause 2.2.2.10 is a mandatory action, and relevantly provides:

Retain and protect habitat trees or habitat patches and long-lived understorey species to provide for the continuity and replacement of hollow bearing trees and existing vegetation types within each coupe ...

279 'Understorey' is defined in the Code as 'the layer of vegetation that grows below the canopy formed by the tallest trees in a forest.' It was not in dispute that the Tree Geebung is a long-lived understorey species. It follows that cl 2.2.2.10 requires VicForests to retain and protect Tree Geebung to provide for the continuity and replacement of Tree Geebung, as an existing vegetation type, within each coupe. Clause 2.2.2.10 has no further effect if ch 4 of the Standards is met. The only applicable prescription in ch 4 is the Management Action.

280 The verbs 'retain' and 'protect' used in cl 2.2.2.10 are ordinary English words. They are not defined in the Code and assume their ordinary and natural meaning.

281 The Macquarie Dictionary defines the word 'retain' to mean:

1. to keep possession of ...

3. to continue to hold or have ...

5. to hold in place or position ...[54]

282 Likewise, the Oxford English Dictionary gives the following relevant definitions for 'retain':

1c. transitive. Originally: to keep in custody or under control; to prevent from leaving. Later usually of an object: to hold (something) fixed in a place or position; to prevent from becoming separated or detached.

...

2a. transitive. To keep in one's own hands or under one's own control; to keep back; to keep hold or possession of; to continue to have ...

2b. transitive. To continue to have or possess (an attribute, quality, etc.).

...

2f. transitive. To allow (something) to remain in place, instead of discarding or removing it; to preserve.[55]

283 The word 'protect' is given the following meanings in the Macquarie Dictionary:

verb (t) 1. to defend or guard from attack, invasion, annoyance, insult, etc.; cover or shield from injury or danger ...

verb (i) 3. to provide, or be capable of providing protection.[56]

284 The Oxford English Dictionary defines 'protect' relevantly as follows:

1 a. transitive. To defend or guard from danger or injury; to support or assist against hostile or inimical action; to preserve from attack, persecution, harassment, etc.; to keep safe, take care of; to extend patronage to; to shield from attack or damage. Frequently with against, from ...

b. transitive. Of a thing; to afford or constitute protection (from or against something); to act as a shield or safeguard ...

5. transitive. To attempt to preserve (a threatened plant or animal species) through legislation controlling collecting, hunting, etc.; to place legal restrictions on access to or exploitation of (a habitat or locality) ...[57]

285 The Code as it currently stands effects a fundamental change to cl 2.2.2.10 from prior versions of the Code. Compliance with the applicable prescriptions in ch 4 of the Standards regarding the Tree Geebung constitutes compliance with cl 2.2.2.10, and cl 2.2.2.10 has no further relevant operation. In this case, compliance with the Management Action is sufficient to ensure that the requirements of cl 2.2.2.10 are met.

286 Clause 2.2.2.4 of the Code, which I have set out above, requires VicForests to identify biodiversity values listed in the Standards at the planning stage, and to address risks to those values through management actions consistent with the Standards. The actions may include the appropriate location of coupe infrastructure, the use of buffers and protection areas, modified harvest timing and silvicultural techniques, and the retention of specific structural attributes.

287 The term 'biodiversity' in the Code has the same meaning as in s 3(1) of the FFG Act, viz. 'the variability among living organisms from all sources', including diversity within species and between species and the diversity of ecosystems.

288 The value sought to be protected under Table 14 of the Standards (Rare or threatened flora prescriptions) for Tree Geebung is the 'Individual tree'. This term is used in contradistinction to 'Population' or 'Occurrence' commonly listed as the values for other rare or threatened flora.

289 As a result, cl 2.2.2.4 requires individual Tree Geebung satisfying the description in the Management Action in Table 14 to be identified at the planning stage, and for the risks to the relevant Tree Geebung to be addressed through management actions consistent with the Standards.

290 The Management Action stands to be construed and applied.[58] The words in the Management Action which are the source of the controversy are plain English words and are used in their ordinary and natural meaning.

291 The Management Action is set out in a table which includes the headings 'Value', 'Applicable FMAs' and 'Management Actions'. Entries under the heading 'Value' for other rare or threatened species are typically 'Population' or 'Occurrence'. These headings are intended to make it clear that the specified management action is directed to populations, or to the occurrence of the species. In the case of the Gully Grevillea, the prescribed management action is directed at mature individuals. In the case of the Yarra Gum, the value to be protected is the 'Individual tree'. Likewise, in the case of the Tree Geebung, the value to be protected is the 'Individual tree'.

292 The value stated in the Standards for Tree Geebung makes it clear that individual mature trees are the subject of the Management Action, and that the Management Action applies to both mature individuals and clusters of Tree Geebung. There is nothing in the Management Action which suggests that it applies only to clusters and not to mature individuals.

293 The Management Action is very different from that found in the 1998 FMP. In 1998, Tree Geebung was not considered to be a threatened species. It was classified as 'rare', but not as vulnerable or endangered. The prescribed management actions were:

Protect mature specimens where possible. Investigate methods of regeneration which maintain levels of abundance.

294 VicForests contended that the Management Action should be confined to 'specimens' rather than to 'individuals'. Such a construction would significantly reduce the scope of the Management Action, and relieve VicForests of the need to protect mature individuals, provided that mature specimens were protected.

295 I reject this construction. As to 'text', the ordinary meaning of 'individual' means much more than a specimen of the species, and extends to single examples of a species. It includes all examples of the species capable of independent existence.

296 The context also points strongly against such a construction. The expression 'mature individual' is used in the Standards to apply to Gully Grevillea, and the term 'individual tree' applies to Yarra Gum. Language used throughout a statutory instrument (in this case, 'individual') should be given a consistent interpretation where possible. It is most unlikely that the drafter of the Standards had in mind that only specimens of Gully Grevillea or Yarra Gum would be preserved. Rather, it was intended that single examples of each species would be protected. This interpretation is confirmed in the case of the Yarra Gum by the associated management action to '[r]etain all individual Yarra Gum trees', which on a plain English reading covers every single Yarra Gum tree rather than a subset of all Yarra Gum trees.

297 The purpose of the Management Action also points against the suggested construction. The clear purpose of the Management Action is to protect mature individuals of the Tree Geebung species from disturbance and not just selected examples or specimens of the species. This purpose is a natural consequence of the need to protect an 'endangered' species. Protection of specimens alone would not address the mischief to which the Management Action is directed - namely, the ongoing threat to the continued existence of the Tree Geebung species, endemic as it is to the Central Highlands.

298 A final obvious difficulty about the suggested construction is its practical implementation. How are the mature specimens to be selected? Where are they to be? How many are to be preserved? Who is to decide?

(a) the action to be taken is to 'protect';

(b) the action applies to mature 'individual trees';

(c) the protection to be provided is from 'disturbance'; and

(d) the action is to be taken 'where reasonably practicable'.

300 Each element is to be taken to assume its ordinary and natural English meaning. Apart from the specification of the trunk diameter of the trees to be protected, the four elements are not defined in the Standards.

301 I have earlier set out the dictionary definitions of the word 'protect'. The end result of 'protection', as it applies to an 'individual tree', would ordinarily be the survival of the tree, and the avoidance of damage to the tree, certainly any serious damage.

302 The Macquarie and Oxford English dictionaries are also helpful in construing 'disturbance'. The Macquarie Dictionary defines 'disturbance' as:

noun 1. the act of disturbing.

2. the state of being disturbed.

3. an instance of this; commotion.

4. something that disturbs ...[59]

verb (t) 1. to interrupt the quiet, rest, or peace of.

2. to interfere with; interrupt; hinder.

3. to throw into commotion or disorder; agitate; disorder; disarrange; unsettle.

4. to perplex; trouble ...[60]

304 The Oxford English Dictionary defines 'disturbance' as:

The action of disturbing or fact of being disturbed.

1 a. The interruption and breaking up of tranquillity, peace, rest, or settled condition; agitation (physical, social or political) ...

1 b. with a and plural: An instance of this ...

3. Interference with the regular or due course or continuance of any action or process; molestation ...[61]

1 a. transitive. To agitate and destroy (quiet, peace, rest); to break up the quiet, tranquillity, or rest of (a person, a country, etc); to stir up, trouble, disquiet ...

1 b. To throw into a state of physical agitation, commotion, or disorder; to agitate ...

1 c. To move anything from its settled condition or position; to unsettle ...

3 a. To interfere with the settled course or operation of; to put out of its course; to interrupt, derange, hinder, frustrate ...[62]

306 Although the words 'reasonably practicable' are ordinary words bearing their ordinary meaning, they have been the subject of much judicial consideration. The question whether a measure is or is not reasonably practicable is one which requires the making a of a value judgement in the light of all the facts.[63]

307 Three general principles are to be found in the decided cases:

(a) the phrase 'reasonably practicable' means something narrower than 'physically possible' or 'feasible';

(b) what is 'reasonably practicable' is to be judged on the basis of what was known at the relevant time; and

(c) to determine what is 'reasonably practicable' it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.[64]

308 While the word 'practicable' has been taken as meaning 'capable of being carried out in action; feasible',[65] 'reasonable' is a relative term, which requires that any measure 'be proportioned to the circumstances of the case considered as a whole'.[66] In this sense, the word 'reasonably' serves to limit or qualify the scope of what would otherwise be an absolute obligation or duty to take particular measures.[67] Despite the coupling of the notions within the term 'reasonably practicable', they are in fact not complementary, but instead appear to operate in conceptual opposition.[68] Whether a measure is reasonably practicable is an objective assessment,[69] which is concerned with the state of knowledge generally possessed by persons engaged in the relevant field of activity, rather than the actual knowledge of a specific person in particular circumstances.[70]

309 There is no general rule or test that can be relied upon to assess reasonable practicability,[71] and it would be undesirable to attempt to rigidly define the term.[72]

310 For reasons that I will come to, it makes no difference to the result in this proceeding whether or not the precautionary principle is engaged as the same results arise through the application of the provisions of the Code and the Standards and particularly the Management Action. Nonetheless as the precautionary principle was argued at some length, it is appropriate to set out my findings as to its application.

311 Section 2.2.2.2 of the Code provides that the precautionary principle must be applied to the conservation of biodiversity values. It also provides that 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.

312 The precautionary principle is defined in the Glossary of the Code to mean 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. It also provides that decisions by VicForests, harvesting entities and operators must be guided by careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and involve an assessment of the risk-weighted consequences of various options.

313 The precautionary principle is a guiding principle of ecologically sustainable development under s 5(4)(b) of the Act and together with climate change a relevant consideration under ss 4A(b) and (d) of the FFG Act.

314 The note to section 2.2.2.2 in the Code provides that it is intended that the precautionary principle and its application to section 2.2.2.2 be understood as it was by Osborn J in Environment East Gippsland Inc v VicForests in relation to the precautionary principle as it appeared in the 2007 version of the Code.[73] In view of the reference in the Code of the Brown Mountain decision, I will set out the principles accepted in this decision in some detail.

315 In Brown Mountain, Osborn J accepted the analysis of the precautionary principle by Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council, where Preston CJ said:

The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate.[74]

316 Osborn J also adopted the relevant factors identified in Telstra which Preston CJ held may include:

(a) the spatial scale of the threat (for example, local, regional, statewide, national, international);

(b) the magnitude of possible impacts, on both natural and human systems;

(c) the perceived value of the threatened environment;

(d) the temporal scale of possible impacts, in terms of both the timing and the longevity (or persistence) of the impacts;

(e) the complexity and connectivity of the possible impacts;

(f) the manageability of possible impacts, having regard to the availability of means and the acceptability of means;

(g) the level of public concern, and the rationality of and scientific or other evidentiary basis for the public concern; and

(h) the reversibility of the possible impacts and, if reversible, the time frame for reversing the impacts, and the difficulty and expense of reversing the impacts.[75]

317 As to the magnitude of the required risk, Osborn J adopted from the reasons of Mason J in Wyong Shire Council v Shirt in another context that the risk must be real and not fanciful or far-fetched.[76]

318 In addition, the threat hypothesised must have a scientific basis and be the subject of direct evidence by witnesses possessing scientific expertise with respect to them.

319 As to the factors involved in determining whether there is a lack of scientific certainty, Osborn J again followed the Telstra case where Preston CJ postulated that they might include the following:

(a) the sufficiency of the evidence that there might be serious or irreversible environmental harm caused by the development plan, programme or project;

(b) the level of uncertainty, including the kind of uncertainty (such as technical, methodological or epistemological uncertainty); and

(c) the potential to reduce uncertainty having regard to what is possible in principle, economically and within a reasonable time frame.[77]

320 Finally, Osborn J adopted a standard of 'substantial uncertainty' relating to the lack of scientific knowledge. In the Brown Mountain case, the alleged uncertainty related to the extent to which the threatened species was present in the Brown Mountain coupes or the optimal form of management areas for the preservation of the species.

321 The question whether the conditions precedent are met is a matter of fact. If the conditions precedent are satisfied, the burden of showing the threat of serious or irreversible environmental damage will not occur shifts to VicForests to show that the threat does not exist or is negligible.[78]

If each of the two conditions precedent or thresholds are satisfied - that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty - the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the treat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.

The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific, certainty of cause and effect is established. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To avoid environmental harm, it is better to err on the side of caution.[79]

323 If the burden is not discharged, VicForests and the court must assume that there will be serious or irreversible environmental damage. The precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threat have been fully known.[80]

324 The precautionary principle is not directed to the avoidance of all risks but is dependent on the seriousness of the threat and the degree of uncertainty. The margin for error in respect of a particular proposal may be controlled by an adaptive management approach.[81]

325 Here the adaptive management approach proposed is the implementation of the SMP. I will analyse and examine the SMP later in some detail.

326 Warburton also submits that a different management approach should be adopted by VicForests, which will much more effectively reduce the risks to Tree Geebung than would occur if the SMP were adopted.

327 The precautionary principle requires a proportionate response. Resources should not be expended beyond what is appropriate and necessary in order to achieve the objective in question. The principle requires the avoidance of serious or irreversible damage to the environment 'wherever practicable', and the assessment of the risk weighted consequences of optional courses of action with a reasonable balance to be struck between the cost burden of the measures and the benefit derived from them. The relevant notion of proportionality is not readily captured by traditional cost benefit analysis and does not necessarily preclude the carrying out of a particular land use or development proposal.[82]

328 Osborn J considered the following matters to be relevant to the question of proportionality;

(a) the seriousness of the threat, and the degree of scientific certainty;

(b) the likely benefits that would flow from adopting the proposed measure including the likelihood that adopting the measure will address the threat or reduce the level of scientific uncertainty;

(c) the cost of the proposed measures;

(d) the time it would take to implement the proposed measure; and

(e) the economic loss that VicForests or its contractors would suffer by implementing the proposed measure.[83]

329 Osborn J considered the precautionary principle by reference to a series of questions:

(a) was there a real threat of serious or irreversible damage to the environment by reason of the proposed timber harvesting operations; and

(b) was the threat attended by a lack of full scientific certainty?[84]

330 If the answer to these questions was 'yes', his Honour considered:

(a) whether VicForests demonstrated the threat is negligible;

(b) whether the threat was able to be addressed by adaptive management; and

(c) whether the management measures proposed by the plaintiff were proportionate to the threat in issue.[85]

331 If the answer to these questions was 'yes', the precautionary principle was engaged, and the court might require VicForests to implement the measures proposed by the plaintiff.

332 Osborn J referred to previous authority as to the underlying notion of the precautionary principle, observing that the underlying notion of the principle was stated by Stein J in these terms:

...the precautionary principle is a statement of commonsense and has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.[86]

333 Osborn J referred to the cautiousness with which Courts approach the principles as articulated in Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management referring to the following observations of Wheeler J:

Adopting for the moment a very broad characterisation of the precautionary approach, a requirement that a decision maker "be cautious" says something about the way in which the decision must be made. There must be some research, or reference to available research, some consideration of risks, and a more pessimistic rather than optimistic view of the risks should be taken. However, such a requirement does not in any particular case specify precisely how much research must be carried out, or when a risk should be considered to be so negligible that it may safely be disregarded. Still less, does such an approach dictate what courses of action must be taken after the possibilities have been cautiously weighed.

No doubt there are extremes at either end of a spectrum, where one would be able to say that a decision maker had or had not been "cautious". Where endangered species are concerned for example, one can see that where readily accessible and unambiguous research material pointed to a serious risk that numbers of the species would be dramatically reduced by a course of action, then the adopting of that course of action, in the absence of any evidence of consideration of alternatives, would seem to point inevitably to a finding that there had been no relevant "caution". At the other extreme, an absence of any action, other than research and study, is clearly cautious but is not the only option available in most cases. Although there has been very little judicial consideration of the precautionary approach or "precautionary principle" (a similar or perhaps identical concept which appears in a number of intergovernmental agreements) the clear thread which emerges from what consideration has been given to the approach is that it does dictate caution, but it does not dictate inaction, and it will not generally dictate one specific course of action to the exclusion of others.[87]

334 The decision in Brown Mountain has subsequently been considered in the context of the precautionary principle on a number of occasions.[88]

335 In MyEnvironment Inc v VicForests, Osborn JA gave extensive consideration to the precautionary principle observing that VicForests was required to apply the precautionary principle having regard to the results of observations, ongoing monitoring and research as they came to light during operations.[89] The decision of Osborn JA was appealed to the Court of Appeal where it was upheld. The appellant did not press an argument that Osborn JA erred in applying the precautionary principle.[90]

336 In the present case, Warburton submitted that the two preconditions for the application of the precautionary principle are met, namely that:

(a) there is a real threat of serious or irreversible damage to the environment; and

(b) scientific uncertainty.

337 As to the risk of serious or irreversible damage to the Tree Geebung, Warburton submitted that:

(a) management of 60% of the population of an endangered species is very significant for the ongoing persistence of the species;

(b) serious environmental damage to the land managed by VicForests will have a significant impact on the long-term survival prospects for Tree Geebung; and

(c) there was a risk of harm caused by the continued conduct of timber harvesting operations as well as by wildfire, climate change and other environmental impacts.

338 As to scientific uncertainty, Warburton submitted:

(a) the joint report recognises that there is no population modelling across the known Tree Geebung distribution area and no population estimate for Tree Geebung;

(b) the abundance of Tree Geebung within the Yarra Ranges National Park is unknown, as is its relative abundance when compared with the balance of its habitat;

(c) it is unknown but possible that Tree Geebung could occur in most if not all coupes within the Central Highlands;

(d) there is uncertainty as to the scale of future declines in the Tree Geebung such that there are reasonable grounds for assessing the species as Critically Endangered; and

(e) there is uncertainty as to whether Tree Geebung seedlings will consistently grow from soil-stored seed.

Is there a threat of serious or irreversible damage to the environment by reason of the proposed timber harvesting operations?

339 Mr Gunn's evidence was that the total area harvested in the Central Highlands region was likely to be under 1,500ha annually. On the assumption that timber harvesting in the Central Highlands region continues at this volume for the remaining eight years of timber harvesting, a total of 12,000ha of State forests will be harvested. In fact, the total area required is likely to be less as timber harvesting is to be stepped down until ceasing altogether in 2030.

340 Mr Organ's evidence was that the total potential area of State forests available for harvesting in the Central Highlands was approximately 290,215ha. Tree Geebung was predicted to occur in an area of about 100,035ha. It is up to VicForests to plan where timber harvesting coupes are to be located. Applying these figures, timber harvesting will require about 4.1% of the available State Forest and most likely less as harvesting steps down.[91]

341 On numerous occasions in the past, VicForests has harvested coupes where mature Tree Geebung are found. There is no indication by VicForests that it will confine future harvesting to coupes where mature Tree Geebung are not found. To the contrary, the SMP is intended to give guidance as to how harvesting operations are to be carried out in coupes containing mature Tree Geebung.

342 VicForests submitted that there was no relevant threat of serious or irreversible damage to the environment as Tree Geebungs responded well to disturbance and that seedlings were regularly observed in coupes following timber harvesting. VicForests also submitted that the threat was less as timber harvesting will conclude in 2030, and that 40% of Tree Geebung were in areas protected from timber harvesting. Those areas include national parks where timber harvesting is not permitted and exclusion areas.

343 The evidence shows that harvesting and regeneration burns in coupes have caused substantial losses of mature Tree Geebungs. There is every reason to expect that significant losses of mature Tree Geebungs will continue in coupes harvested by VicForests in the future unless adequate precautions and controls are put in place.

344 Tree Geebung's conservation status as assessed by DELWP in its Threatened Species Assessment ('DELWP Threat Assessment') is 'endangered' on the basis of future declines resulting from climate change-induced increases in fire frequency and intensity.

345 Under the heading of 'Threats', the DELWP Threat Assessment describes Tree Geebung as threatened primarily by repeat fire events below the tolerable fire interval of the species. The assessment describes Tree Geebung as threatened by forestry operations and regeneration burning which are considered likely to result in seed bank depletion and further expose subpopulations to high fire frequencies.

346 The DELWP Threat Assessment observes that while there is a prescription to protect mature individual Tree Geebung, there are no survey guidelines and surveys are generally of low resolution.

Clear-felling, mechanical disturbance and subsequent regeneration burns are thought to destroy most of the resident plants, and it appears that seeds in logged coupes do not survive the high intensity regeneration burns...

348 The DELWP Threat Assessment observes that while Tree Geebung is a long-living species, the majority of specimens in the 1939 regrowth forest produce seed in only small quantities while elsewhere plants estimated to be in the order of 250 years old are producing large quantities of seed.

349 Consequently, the assessment concludes that the current timber cutting interval of 80-120 years may be insufficient to allow for the replenishment of the soil seed bank. In areas where forestry is anticipated to be an ongoing land use, rotation times of 80-120 years were considered inadequate to allow regenerating plants to produce an adequate soil stored seed reserve.

350 The DELWP Threat Assessment concludes that the population reduction in Tree Geebung is estimated to be 40-70% over the past 450 to 900 years. The population reduction over the next 100 years is projected to be 50-75% based on fire frequencies well below the tolerable fire interval for the species in response to climate change, fuel reduction burning and clearfell harvesting followed by intense slash burning. The species shows a continuing decline in numbers and habitat, with the Central Highlands its only location.

351 The DELWP Threat Assessment was not challenged by either party, or by the experts. Mr Mueck's reports and evidence expand in some respects on the DELWP Threat Assessment. Professor Feller's evidence also expands on the DELWP Threat Assessment as to the effects of regeneration burning on Tree Geebung.

352 I accept the DELWP Threat Assessment as supplemented by the experts' reports and evidence. I hold that there is a serious threat to Tree Geebung as a species that would be caused by timber harvesting operations involving the clearance of up to 12,000ha of native forest within State forests, even noting that the area required each year will reduce until 2030 when it will conclude, and that the Tree Geebung population within national parks and exclusion areas will survive.

353 The decline in Tree Geebung likely to occur if timber harvesting and regeneration burning continue in native forests in State forests without proper safeguards is not only serious but for all practical purposes is irreversible. The time frame for a juvenile Tree Geebung to reach maturity and then a high rate of seed production is of such extreme length that it could take centuries to reverse Tree Geebung losses within the Central Highlands region particularly in the context of ongoing and increasing threats to the survival of the species through the risk of wildfires of increased frequency. While I would expect Tree Geebung to survive as a species in national parks, unharvested State forests, exclusion areas and reserves, that is not to say that the effects of continued timber harvesting and regeneration burning affecting up to 12,000ha of State forests would not be serious and significant without proper management and controls.

354 I conclude that Warburton has established that there is a threat of serious or irreversible damage to the Tree Geebungs as a species and to the environment by reason of the proposed timber operations and regeneration burning over the next eight years. Destruction of mature Tree Geebungs cannot be rectified for a very long time and may not ever be rectified due to the age of mature trees required to produce substantial quantities of seed.

Is the threat attended by a substantial lack of scientific certainty?

355 In its final submissions, Warburton relied on five matters which it said showed scientific uncertainty:

(a) there is no population modelling across the known Tree Geebung distribution area and no population estimate for Tree Geebung;

(b) the abundance of Tree Geebung within the Yarra Ranges National Park is unknown, as is the relative abundance of the species when compared with the balance of habitat;

(c) it is unknown but possible that Tree Geebung could occur in most if not all coupes within the Central Highlands;

(d) there is uncertainty as to the scale of future declines of the Tree Geebung such that there are reasonable grounds for assessing the species as Critically Endangered; and

(e) there is uncertainty whether Tree Geebung seedlings will consistently grow from soil-stored seed.

356 I readily accept that there is scientific uncertainty as to (a) and (b) as this is agreed by Mr Mueck and Mr Organ in the joint expert report and is consistent with other evidence. I accept that the level of scientific uncertainty as to (a) and (b) is substantial. Further botanical studies are needed to better understand the population distribution and abundance of Tree Geebung in the Central Highlands. I also accept that there is substantial scientific uncertainty as to (c). This was the view expressed in Mr Mueck's first report which was not challenged in cross-examination. Again, this reflects the fact that the population modelling of Tree Geebung conducted to date is limited and does not address coupes or likely coupes in the Central Highlands.

357 As to (d), the DELWP Threat Assessment finds that Tree Geebung is eligible under a number of criteria for classification as Critically Endangered. The assessment states that the rating of Endangered is very conservative. I accept the threat assessment as the best evidence available and find that there is substantial scientific uncertainty as to whether Tree Geebung in the Central Highlands should be rated as Critically Endangered or Endangered.

358 There is no doubt that the Tree Geebung species is in continuing decline in the Central Highlands. Recovery of the species is highly problematic due to the very long life cycle of the species, with a century or more required for a seedling to grow into a mature tree with full reproductive capacity. This leaves the species highly vulnerable to wildfires, and even more vulnerable if climate change results in more frequent wildfires in the Central Highlands. This is a very important issue if the species is to survive in the future.

359 The final area of scientific uncertainty suggested by Warburton in (e) relates to the capacity and likelihood that Tree Geebung seedlings will grow from soil-stored seed. This was discussed by Mr Mueck who stated that it had to be assumed consistently with the available evidence that the reproductive success of the species was dependent on mature individuals at least in the order of 100 years old. I accept that this is an area of substantial scientific uncertainty as highlighted by Mr Mueck, and an important issue for the future of the Tree Geebung species.

360 I accept that Warburton has shown that each of the five matters is an area of significant scientific uncertainty. I also find that, when taken collectively, there is very substantial scientific uncertainty as to the likely future of the Tree Geebung species in the Central Highlands. The areas of scientific uncertainty remain even if 40% of the Tree Geebung habitat is protected in national parks and if timber harvesting in the native forests of State forests ceases in eight years.

361 As a consequence of these findings, the two conditions precedent to the operation of the precautionary principle are satisfied, and the principle is activated. It follows that the lack of scientific certainty on the matters I have discussed should not be used as a reason for postponing measures to prevent environmental degradation. The evidentiary burden of showing that the threat does not exist or is negligible reverts to VicForests. The principle operates to give the benefit of the doubt to environment protection, but nonetheless important issues remain to be decided.

362 The parties are in dispute as to whether VicForests is failing to adopt measures to prevent environmental degradation of the Tree Geebung population in the Central Highlands. VicForests relies on the SMP as preventing further environmental degradation of the Tree Geebung population. Warburton submits that the SMP is inadequate and will not prevent ongoing degradation of the Tree Geebung population. Warburton contends that the measures it proposes will prevent further degradation of the Tree Geebung species, or at least substantially reduce the rate of degradation.

363 It is well established that the precautionary principle requires a proportionate response which does not go beyond what is necessary. The principle requires the avoidance of serious or irreversible damage to the environment 'wherever practicable' with a balance to be struck between the cost burden and the benefit.

364 The next step is to consider whether the threat to Tree Geebung posed by timber harvesting and regeneration burning can be addressed by adaptive management. VicForests relies on the SMP and says that it is sufficient to address any threat to the environment. Warburton submits to the contrary and proposes three measures which it contends are proportionate.

365 VicForests submits that the precautionary principle in cl 2.2.2.2 of the 2021 Code is not directed to the elimination of all risks but requires that the proposed protective measures be proportionate to the threat. There is a correspondence between the precautionary principle which requires the avoidance of serious or irreversible damage to the environment 'wherever practicable' and the Management Action which adopts the phrase 'where reasonably practicable'. Neither the Management Action nor the precautionary principle is expressed in absolute terms or require an absolute approach. The precautionary principle does not require a different set of prescriptions to be adopted.

366 I agree with this submission. Whether approached as a question of compliance with the Code and the Management Action or from the perspective of the precautionary principle, the key issue remains whether the SMP is sufficient to protect individual Tree Geebung from disturbance where reasonably practicable or whether the Court should grant injunctions to ensure compliance with the Code and Standards. Any injunction granted by the Court must be practical, achievable and a proportionate response to the threat to Tree Geebungs.

367 The undisputed evidence is that destruction or damage to Tree Geebungs is commonly caused by the harvesting of forest areas without locating or adequately protecting Tree Geebungs, by windthrow (the felling of trees by the action of the wind), and by regeneration burning. Warburton claimed that of 238 Tree Geebungs located in the harvest area of 23 coupes, 219 were damaged or destroyed.

368 In the following paragraphs, I will summarise what the evidence shows as to the impact of harvesting and regeneration burning by VicForests and its contractors on Tree Geebungs. More detail is available in the evidence, but the following will suffice to describe the impacts. While the evidence predates the commencement of the Code and Standards, it is relevant to the issues to be determined in this proceeding.

369 The available evidence is confined to coupes where the impact of harvesting and regeneration burns on Tree Geebungs has been recorded. In the past, targeted surveys to identify and locate mature Tree Geebungs in harvesting areas were not ordinarily conducted. There are few records as to the past loss of mature Tree Geebungs due to the impacts of harvesting, exposure, windthrow and regeneration burns.

370 In an email sent on 12 February 2018, Mr Gunn described VicForests' approach to the preservation of Tree Geebungs at that time in these terms:

Our current approach is based on our understanding that Tree Geebung, while considered rare on a statewide basis, is locally abundant throughout its range in the Central Highlands. The extensive formal and informal reserve system provides the first level of protection.

At a coupe level our current approach is to protect mature individual trees and populations where possible by incorporating them into areas that will be excluded from harvesting and thus protected from disturbance (Both mechanical and fire). This can be through including trees in extended stream buffers or grouping areas into clusters that protect multiple values (Such as Regrowth retention patched or retained habitat).

Where mature individuals are detected within the harvestable area (marked coupe boundary) and it is not practicable to include them in exclusion areas, avoiding any disturbance, is in many cases not possible. While mechanical disturbance is avoided where possible, these individuals will almost definitely be disturbed by fire during regeneration burning.[92]

371 Consistently with Mr Gunn's observations, the evidence shows that mature Tree Geebungs within the harvestable area of coupes were routinely destroyed or damaged prior to the grant of interlocutory injunctions for their protection. The evidence also supports Mr Gunn's observation that mature individuals within the harvestable area of coupes would almost definitely be disturbed by fire during regeneration burning.

372 In relation to the Ben 10 coupe, the contractor was instructed in February 2020 to clear two blade widths around Tree Geebung in the harvest area. Nonetheless, on 23 July 2020, after the regeneration burn, Mr Colcheedas found that two Tree Geebungs which previously existed were no longer present.

373 When the Bens Reward coupe was harvested, no targeted survey was conducted, and no Tree Geebungs were identified in the harvest area. On 23 July 2020, after the regeneration burn, Mr McKenzie identified seven dead Tree Geebungs in the harvest zone, and one alive on the edge of the harvest zone.

374 Fourteen Tree Geebungs were detected in the Billowcase coupe by the DELWP Forest Protection Survey Program on 15 November 2019. Ten Tree Geebungs were placed in exclusion zones, leaving four in the harvestable area. More Tree Geebungs were subsequently detected. On 24 July 2020, Mr Colcheedas found that eleven Tree Geebungs found by DELWP were no longer present. Following a regeneration burn, on 22 April 2021 a further five Tree Geebungs were found burnt or dead.

375 Two Tree Geebungs were detected in the Bren Gun coupe on 22 July 2019. Another Tree Geebung was subsequently detected. All three Tree Geebungs perished or were damaged during harvesting or regeneration burning.

376 As at 21 August 2018, thirteen Tree Geebungs had been detected by survey in the Bright Ideas coupe. Later, seven Tree Geebungs in the harvest area were no longer present.

377 On 3 September 2019, four Tree Geebungs were detected in the Buddies Quarry coupe. As at 31 July 2020, all four Tree Geebungs were missing in the harvest area.

378 On 24 August 2018, nine Tree Geebungs were detected in the Carters Hat coupe. Four Tree Geebungs were placed in the harvest area, three of which subsequently perished.

379 On 18 April 2019, seventeen Tree Geebungs were detected in the Castletown coupe. Eight Tree Geebungs in the harvest area were dead or no longer present as at 16 July 2020.

380 In the Deadshot coupe, fifteen Tree Geebungs were detected on 25 April 2019. By 23 July 2020, eleven of the Tree Geebungs were lost in the harvest area.

381 In the DragonBall Z coupe, about 39 Tree Geebungs in the harvest zone were found to be dead or missing by 9 October 2020. Eight Tree Geebungs were found to be intact.

382 On 20 February 2019, 25 Tree Geebungs were detected in the Even Steven coupe by survey. In observations made in July 2020, only two of the 25 were found to be alive and intact.

383 On 23 April 2019, 28 Tree Geebungs were identified by DELWP survey at the Fireman Sam coupe. Sixteen Tree Geebungs were lost or damaged during harvesting or regeneration burning.

384 Only nineteen Tree Geebungs were detected in the Glanworth coupe by DELWP survey on 17 April 2019. At least ten were in the harvest zone. Observations made in July 2020 identified 32 dead or absent Tree Geebungs, with 30 in the harvest zone. Two other Tree Geebungs within buffer areas were found damaged.

385 Three Tree Geebungs were detected in the Governor coupe by survey on 7 November 2019. Although Tree Geebung were marked by the VicForests supervisor, two were absent on 28 July 2020.

386 Four Tree Geebungs were located in the Jumping Jack Flash coupe by survey on 9 October 2018. Following harvesting and regeneration burning, three Tree Geebungs were dead or absent.

387 In an email relating to the Martell coupe sent on 21 May 2019, Lachlan Wilson, a Forest Policy and Compliance Officer, reported in substance that:

(a) at least 24 mature Tree Geebungs would be retained outside the marked boundary;

(b) six mature Tree Geebungs inside the marked boundary were to be retained;

(c) the individuals reported as damaged/destroyed were correct, but it was difficult to determine if it was 'possible' to protect them during observations;

(d) all Tree Geebungs identified had fruit on them, indicating reproductive maturity which aided in identification;

(e) this was by no means a comprehensive survey of the coupe; and

(f) the contractor and crew had been shown specimens of Tree Geebungs and a map of Tree Geebung locations, and had been instructed to protect individuals where they were practically able to do so.

388 Despite the marking of individual Tree Geebung and a planned 5m buffer, the Martell coupe diary records that Tree Geebung were accidentally pushed over during harvesting on 24 June 2019, 25 June 2019 and 27 June 2019. On 3 July 2019, the coupe diary notes that:

A majority of the Tree Geebung trees left in the harvested area (as opposed to the buffers) as directed ... by DELWP had blown over during recent extreme wind events. Evidence of wind damage included - all trees fallen in the same direction, all plants up-rooted and no visible sign of machine damage or scuff marks.

389 A note in the Martell coupe diary made on 11 September 2019 records that most (if not all) marked Tree Geebungs had been windblown. Another Tree Geebung was accidentally knocked over on 25 September 2019. A letter from Matthew Zanini, Acting Manager, Timber Harvesting Compliance Unit of the OCR, to Mr Gunn noted in substance that:

(a) at least 30 Tree Geebungs were excluded from the harvest area;

(b) 25 Tree Geebungs within the harvest area were destroyed;

(c) 10 Tree Geebungs were retained within the harvest area - five were considered intact or featured minor damage, one had lost a limb, and four were felled by windthrow; and

(d) no clumps or groups of Tree Geebungs that may have been suitable to be retained in a habitat patch were identified in the harvest area.

390 Mr McKenzie undertook a post-regeneration burn survey of the Martell coupe in July 2020. 13 Tree Geebungs were located, and all were found to be dead or almost dead, including five Tree Geebungs in buffer areas up to 60m from the harvesting area.

391 In the Myrrh coupe, a Tree Geebung was observed in May 2020 during the marking of the coupe. On 30 July 2020, the Tree Geebung was alive but damaged. Post-burn observations of the Tree Geebung on 7 April and 8 May 2021 revealed that it had been burnt. A second Tree Geebung was also identified as dead.

392 In the Over Ridge coupe, four Tree Geebungs were detected by survey on 5 September 2018. The coupe plan provided for Tree Geebung to be retained within the harvest area, protected where practicable, and cleared around by one blade width. On 14 September 2018, the coupe diary recorded that it was not possible to protect Tree Geebungs within the coupe body. On 25 July 2020, the four Tree Geebungs within the harvest area were absent or dead.

393 A similar situation arose in the Over the Hedge coupe. A survey on 5 September 2018 detected 20 Tree Geebungs. A similar instruction was given to protect Tree Geebungs in the harvesting area. However, fifteen of the twenty Tree Geebungs were not present when the coupe was inspected on 25 July 2020.

394 In the Pat's Corner coupe, no Tree Geebung were detected in a reconnaissance conducted on 31 August 2015, or in a survey conducted on 15 April 2020. By June 2020, 29 Tree Geebungs had been located.

395 In the Pieces of Eight coupe, one Tree Geebung was detected according to a survey report of October 2019. Following harvesting, it was observed on 23 July 2020 that the Tree Geebung was no longer present.

396 In the Turkey Feet coupe, six Tree Geebungs were detected in a survey on 13 February 2019. Following harvesting, two Tree Geebungs were no longer present on 21 July 2020.

397 In the Wispy coupe, five Tree Geebungs were detected in September 2019. Although a data management map of 11 November 2019 shows all five Tree Geebungs to be in buffers, an inspection on 31 July 2020 showed three Tree Geebungs missing or dead.

398 In an investigation report dated 9 October 2020, Dr Michelle Freeman of Hollow-wood Enterprises Pty Ltd, a VicForests consultant, confirmed that after the harvesting of the Dragonball Z coupe, 39 out of 49 Tree Geebungs (or 47, as two trees may have been misidentified) were no longer present or dead. In the case of the Ben 10 coupe, two of three Tree Geebungs were no longer present after harvesting. In the case of the Fireman Sam coupe, Dr Freeman reported that 13 out of 17 Tree Geebungs (or 16, as one tree may have been misidentified) were no longer present or dead after harvesting.

399 In her letter of 12 October 2020, the Chief Conservation Regulator noted that the SMP revised the position that no more than 10% of any harvestable area should be excluded to protect Tree Geebung, with the 10% figure now acting as a trigger for engagement with the Environmental Performance Team so as to consider what was reasonable and practicable. From this observation, it appears that VicForests had a rule of practice that no more than 10% of the harvestable area of a coupe should be excluded from harvesting to protect Tree Geebung. There is no evidence to the contrary.

400 It is apparent from the evidence that hundreds of mature Tree Geebungs have been destroyed or damaged by harvesting or consequent exposure, windthrow or regeneration burning. These results are consistent with the apparent practice referred to by the Chief Conservation Regulator of allowing no more than 10% of a coupe's harvestable area to be used to preserve Tree Geebungs.

401 The evidence is compelling and uncontested that the past practices of VicForests and its contractors have led to the loss of many Tree Geebungs in the harvestable areas of coupes. While it may be that in one or more individual instances the protection of Tree Geebungs was not reasonably practicable, no attempt was made by VicForests to show that it was not reasonably practicable to protect the significant number of Tree Geebungs which have been destroyed in harvested areas through the use of bulldozers and mechanical equipment or by regeneration burning.

402 The deficiencies in past practices identified in the evidence include:

(a) the failure to conduct targeted surveys to detect and locate mature Tree Geebungs in coupes prior to harvesting;

(b) the failure to provide sufficient, or any, buffers to protect mature Tree Geebungs during harvesting or from the later effects of windthrow; and

(c) the failure to protect mature Tree Geebungs from the impacts of regeneration burning in coupes following harvesting.

403 The evidence clearly demonstrates that unless these matters are addressed, Tree Geebungs will not be protected and will continue to be lost in considerable numbers during coupe harvesting and regeneration burning and by the subsequent effects of exposure and windthrow. Given the evidence as to the past harvesting and burning practices of VicForests, it is highly likely that significant numbers of mature Tree Geebungs have been lost in the Central Highlands in the past through harvesting and regeneration burning. The precise extent of the loss will never be known, but on the basis of recent records is likely to amount to many hundreds or even thousands of mature trees.

How are mature Tree Geebungs to be protected from disturbance?

404 I am greatly assisted by the expert witnesses as to what is necessary to protect mature Tree Geebungs from disturbance where reasonably practicable, as required by the Management Action. In making this assessment, I am mindful that what must be identified is the minimum necessary to comply with the law, and to ensure that the Code and Standards are observed.

405 It is not possible to protect mature Tree Geebungs from the effects of harvesting and regeneration burning unless their existence and location within coupes is known.

406 Mr Mueck and Mr Organ both agreed that targeted surveys based on transects were effective in identifying the locations of mature Tree Geebungs as part of pre-harvest surveys. I accept Mr Mueck's evidence that 30m transect surveys are essential to locate and identify mature Tree Geebungs as an understorey species which frequents areas of Wet Forest in the Central Highlands. I accept his evidence that in a Wet Forest an observer is commonly hindered in viewing the surrounds by a dense understorey of shrubs and tree ferns. A 100m transect survey through dense understorey would be of doubtful efficacy. A 30m transect survey would ensure that an observer would detect mature Tree Geebungs which would be at or within 15m of the observer's path in most instances.

407 Mr Organ advocated a 100m transect distance, although he accepted that if visibility on either side of a transect was low or obscured the distance between transects should be less than 100m. He considered that an instruction to surveyors to search beyond the transect by a further 15m if a mature Tree Geebung was identified was adequate to identify a high proportion of mature Tree Geebungs. In my view, such a process is likely to miss many mature Tree Geebungs in the thick undergrowth of Wet Forests.

408 I prefer Mr Mueck's 30m transect distance as giving a clear, simple and effective direction as to what needs to be done to detect mature Tree Geebungs as trees in the understorey. This is the transect distance that has been adopted in interlocutory injunctions previously granted by the Court. No problems or difficulties have been raised as a result of this requirement. VicForests has not suggested any undue cost or difficulty in compliance.

409 Save for instances of extreme terrain or unusual physical conditions, there is no apparent reason why targeted 30m transect surveys for mature Tree Geebungs would not be possible in conjunction with other mandated pre-harvest surveys. I conclude that 30m transect surveys are possible in almost all circumstances encountered in practice within coupes.

410 As to any additional cost involved in conducting 30m transect surveys rather than 100m transect surveys, during one interlocutory application Warburton relied on an affidavit of Adrian Lamande, an ecological consultant and field crew contractor, to the effect that the additional cost of 30m transect surveys was minimal and insignificant. However, Warburton did not tender Mr Lamande's affidavit at trial. Equally, VicForests provided no evidence at trial as to the cost of 30m transect surveys and did not contend that cost was a reason why 30m transect surveys should not be required. There was no evidence that 30m transect surveys would add significantly more time or cost to the other pre-harvest surveys which VicForests is required to conduct or cause any delay to harvesting schedules.

411 As to proportionality, I conclude that 30m transect surveys are likely to be highly effective in locating mature Tree Geebungs, whether or not in flower, and that the conduct of surveys of this type will significantly reduce the risk and threat to mature Tree Geebungs caused by the use of mechanical equipment and regeneration burning. Protective measures cannot be taken until it is known where mature Tree Geebungs are located. This information should be known prior to the completion of coupe planning so that appropriate exclusion areas and buffers can be established, and operational maps endorsed with the necessary information and instructions.

412 The experience of a 100m transect survey at the Pat's Corner coupe provides a compelling illustration why 30m transect surveys are required. A VicForests Biodiversity Research Officer conducted a pre-harvest survey of Pat's Corner coupe on 15 April 2020 using 17 waypoints and a 1ha grid (which is the equivalent of 100m transect surveys). He found one Tree Geebung which was in an exclusion zone to the south of the coupe.

413 Warburton subsequently identified 16 Tree Geebungs within the Pat's Corner coupe. Mr Gunn deposed that the reason why the VicForests' officer had missed the 16 Tree Geebungs was that he had walked slightly to the east of the cluster of 16 trees on his outward search, and slightly to the west of the cluster on his return journey.

414 On 10 June 2020, following the grant of an interlocutory injunction, a further survey located a total of 29 Tree Geebungs in the Pat's Corner coupe.

415 I find that the conduct of 30m transect surveys in Wet Forest Coupes is the minimum necessary to identify and thereby protect mature Tree Geebungs in Wet Forest Coupes in native forests in State forests in the Central Highlands.

416 Clause 2.2.2.4 of the Code requires biodiversity values listed in the Standards to be identified during planning, and risks to be addressed consistently with the Standards such as through buffers, exclusion areas and protection areas.

417 It is plain from the evidence that without buffers, mature Tree Geebungs are at a high risk of destruction or damage during timber harvesting and regeneration burning. It is also plain that without buffers, Tree Geebungs are at a very high risk of destruction or damage through exposure and windthrow subsequent to harvesting.

418 Mr Mueck gave evidence that a 50m buffer radius was required to protect mature Tree Geebungs during and after timber harvesting, with the Tree Geebungs to be at least 15m from the perimeter of the buffer.

419 He described this as a simple prescription readily understood by VicForests' staff and contractors. In fact, this prescription has been in operation since at least February 2021 as a requirement of the interlocutory injunctions which have been in force without any apparent problems or difficulties. VicForests did not mount a case that the provision of a 50m buffer would be difficult or impossible in the ordinary case.

420 Mr Organ and Mr Gunn disagreed with Mr Mueck as to the extent of buffer required to protect Tree Geebungs, contending that a lesser buffer, even as low as 10m in radius, would suffice coupled with the other measures contained in the 2021 SMP.

421 I prefer and accept Mr Mueck's evidence for the reasons which he gave that a 50m buffer of undisturbed vegetation is essential to protect mature individual Tree Geebungs during harvesting, with the Tree Geebung to be no closer than 15m to the perimeter. Such a prescription is also necessary to protect individuals from windthrow subsequent to harvesting. The experience of windthrow in the Martell coupe starkly demonstrates the need for buffers to make due allowance for exposure and windthrow as well as the detrimental consequences of harvesting and regeneration burning. Buffer requirements are readily identifiable at the planning stage following 30m transect surveys.

422 Protective buffers of undisturbed vegetation are the only practicable way of protecting mature Tree Geebungs during and after harvesting. No other method was suggested by the experts.

423 The provision of a 50m buffer around a mature Tree Geebung involves a potential loss of up to 0.8ha of harvestable area to protect each individual. Mr Organ's evidence shows that the loss of this area to timber production is minor having regard to the very large areas of State forests available to VicForests.

424 In summary, the total potential area available for timber harvesting in the State forests in the Central Highlands exceeds 290,000ha, while Mr Gunn gave evidence that the total area harvested annually by VicForests in the Central Highlands was likely to be under 1,500ha although this would be stepped down to end in 2030. Of the 290,000ha, Mr Organ said that the Tree Geebung was not found in over 190,000ha. In the 100,000ha where Tree Geebungs did occur, Mr Organ's most extreme calculation of the effect of 50m buffers was to reduce the area available for timber harvesting to slightly under 78,000ha. If 50m buffers were required to protect mature Tree Geebung, there would still be ample area available for timber harvesting by VicForests.

425 I find that a minimum 50m buffer radius, with each mature Tree Geebung at least 15m from the perimeter of the buffer, is essential if Tree Geebungs are to be protected from destruction or damage during harvesting and by exposure and windthrow subsequent to harvesting. The provision of 50m buffers is reasonably practicable having regard to the area required for harvesting and buffers and the area of State forest available.

426 The undisputed evidence before the Court is that significant numbers of mature Tree Geebungs have been lost through regeneration burning. It is apparent that the 3m firebreak (one bulldozer blade) ordinarily employed by VicForests and its contractors is not adequate to protect individual mature Tree Geebungs from destruction or damage by fire during regeneration burning in most circumstances. Professor Feller suggested measures to provide protection for mature Tree Geebungs and achieve better outcomes during regeneration burning.

427 Mr Brown's evidence highlights that the planning and control of regeneration burns is not a simple matter. Detailed planning and management action is necessary to achieve successful outcomes and avoid the escape of fire. Mr Brown observed that low intensity burns are more difficult to control and may remain alight for longer periods than high intensity burns. Fast ignitions create a high intensity fire that is easier to manage as convection is predictable, reducing the risk of the fire escaping outside the planned control area. They also create high levels of radiated heat capable of scorching Tree Geebungs. Mr Brown's evidence points to the need for firebreaks wider than 3m if individual mature Tree Geebungs are to be effectively protected from destruction or damage during regeneration burns.

428 Professor Feller gave evidence that a 10m firebreak around buffers containing mature Tree Geebungs was appropriate and consistent with the Bushfire Management Manual which provided for firebreaks of up to 40m. I accept his evidence, supported as it is by Mr Brown's evidence as to the difficulties of controlling regeneration burns and preventing the escape of fire from planned areas.

429 The preservation of Tree Geebungs is not specifically addressed in the Bushfire Management Manual, which is expressed in general terms and does not deal with the firebreaks necessary to protect rare or endangered species. The extent of firebreaks necessary to protect mature Tree Geebung and other rare and endangered species merits careful consideration in its own right. In the present case, I am satisfied on the evidence that a 10m firebreak is the minimum necessary to protect mature Tree Geebungs from destruction or scorching during regeneration burning, as advised by Professor Feller.

430 VicForests did not mount a case that timber production would be adversely affected if targeted surveys, buffers or greater firebreaks were required around mature individuals. It did not suggest that these measures were uneconomic, impractical, unaffordable or commercially burdensome. It did not call any evidence to show that the ecologically sustainable timber harvesting of State forests managed for timber harvesting would be adversely affected over the remaining eight years, or that timber harvesting operations would be rendered inutile or unsustainable or put at social or economic risk as a result of the measures proposed by Warburton to protect mature Tree Geebungs. There was no social or economic evidence called by VicForests.

431 At one point prior to the trial on an interlocutory application, VicForests sought to rely on evidence as to a range of impacts said to arise from the making of the injunctions then sought by Warburton. Deon Kriek, General Manager, Operations at VicForests, gave evidence by affidavit filed 15 October 2020, including as to:

(a) people whose livelihoods depend on timber harvesting, including VicForests' employees, contractors, customers or communities;

(b) VicForests' operations in forestry management areas and regions;

(c) the significance of VicForests' harvesting operations in the Central Highlands;

(d) VicForests' contracts with contractors and customers;

(e) demand and supply for timber;

(f) the effect of other proceedings on timber production;

(g) the effect of injunctions on VicForests' operations; and

(h) the time and cost of surveys.

432 However, VicForests did not rely on Mr Kriek's affidavit at trial, or call him to give evidence. No expert witness was called, or evidence led, by VicForests as to the topics addressed in Mr Kriek's affidavit. VicForests did not present a case to the Court on these matters.

433 I do not criticise VicForests or its legal advisers for making the forensic decision not to call evidence on these matters. I have no doubt that social and economic issues were carefully considered by them before a decision was made not to mount a case or call evidence in these areas. This decision led to a considerable saving of time at the trial, and substantially reduced the issues to be decided by the Court.

434 Warburton submitted that the SMP was entirely inadequate to ensure compliance with the Management Action. It is convenient to address the provisions of the SMP under the headings of:

(a) surveys;

(b) retention;

(c) buffers; and

(d) regeneration burns and firebreaks.[93]

435 The SMP provides that sightings of mature Tree Geebungs made during any field visits to coupes covered by the SMP must be recorded. It provides that Targeted Species Surveys are to be undertaken where mature Tree Geebung records exist within the coupe, or within 500m of the coupe (unless forest type and aspect is unsuitable) or where the coupe overlaps with high quality habitat as mapped in the Habitat Distribution Model for Tree Geebung. If forest type and aspect is unsuitable, the Biodiversity team is to be consulted.

436 The SMP provides for Targeted Species Surveys to be undertaken on transects no greater than 100m apart. When a mature Tree Geebung is recorded, surveyors must search beyond the planned transect within 15m of the detection to identify other mature Tree Geebung close by. This is for the purpose of determining whether the mature individual may form part of a cluster of individuals.

437 A note under these provisions of the SMP states that if a Targeted Species Survey occurs in accordance with these specifications, it is not a precondition to harvesting that every mature individual Tree Geebung within a coupe has been identified and recorded. However, all Tree Geebung detections within a coupe are to be recorded.

438 I accept Warburton's submission that the provisions of the SMP dealing with survey are inadequate and will not locate or identify many mature Tree Geebungs located within harvesting areas. I accept Mr Mueck's evidence that a targeted survey of 30m transects is essential if mature Tree Geebung are to be protected during coupe harvesting. Protection of mature individuals cannot occur unless they are identified and located. I also accept Mr Mueck's evidence that a targeted survey based on 100m transects may fail to identify mature Tree Geebungs in the densely vegetated Wet Forest where mature Tree Geebungs are commonly found.

439 I find that the survey provisions of the SMP are inadequate to meet the Management Action. They are likely to permit continuing environmental degradation of the Tree Geebung species when mature Tree Geebungs are not identified and located by survey.

440 I find that the conduct of 30m transect surveys is reasonably practicable. VicForests has conducted 30m transect surveys in all coupes in the Central Highlands intended to be harvested since February 2021. No submission has been made that 30m transect surveys are not reasonably practicable. I accept Mr Mueck's evidence that they are feasible and appropriate. In rare instances a coupe might include an area of unusual or extreme terrain. If field surveys are not practicable in such an area, timber harvesting will almost certainly be impossible. Such an area can be expected to be excluded from harvesting during coupe pre-harvest planning or placed in an exclusion area.

441 The SMP defines a 'Tree Geebung Exclusion Area' as an area excluded from timber harvesting for the protection of Tree Geebung identified in accordance with the method specified in the SMP. Exclusion areas are defined to include:

(a) a cluster of mature individuals;

(b) an individual identified for protection otherwise than in a cluster; and

(c) an area generated by extending the original planned harvest boundary, or the boundary of an existing harvesting exclusion area, to protect a cluster or individual.

442 The SMP adopts a process to identify a cluster of Tree Geebungs. This involves placing a 10m radius circle over each field-verified record of a mature individual Tree Geebung. If three or more circles overlap or touch, there is a cluster of three or more trees. A single GPS point denoting the presence of three or more mature individuals also constitutes a cluster. A single GPS point with two mature individuals will also be designated as a cluster if a circle on that point overlaps with another circle.

443 Two intersecting circles of 10m radius which contain only two trees do not constitute a cluster. Mature individuals found within 10m of coupe boundaries or exclusion areas are to be encompassed by inclusion within the exclusion area. Individuals that are not part of a cluster or adjacent to existing boundaries are to be protected where it is reasonably practicable to do so.

444 Under the SMP, particular consideration is to be given to whether the following types of individuals can be protected. They are:

(a) unique, e.g. very large (>30cm DBH), isolated individuals;

(b) isolated mature individuals to promote seed development and regeneration post-harvest; and

(c) isolated mature individuals in coupes where Tree Geebungs occur infrequently, by placing them in a protectable exclusion area.

445 The SMP provides that the specific conditions of a coupe must be considered in assessing whether it is reasonably practicable to protect mature individuals, including the location and context of the individual(s) and their risk of exposure, for example from prevailing wind direction that may result in windthrow, and the practicalities of conducting regeneration activities.

446 I accept Mr Mueck's criticisms and concerns about VicForests' arrangements. The SMP does not specify with any clarity what is to be done to protect mature individuals not found in an exclusion area. Without adequate protective measures, mature individuals outside an exclusion area are unlikely to survive.

447 There are significant carve-outs and uncertainties in the SMP relating to the protection to be given to clusters of mature Tree Geebungs:

(a) Clusters of Tree Geebungs are to be protected from harvesting unless it is not reasonably practicable to do so due to safety considerations or a conflicting prescription in the Code or where mature Tree Geebungs are prolific throughout the coupe, and this has been approved by the Environmental Performance team.

(b) The term 'prolific' is not defined in the SMP and has not been defined by VicForests in policy elsewhere. The previous VicForests' position was that no more than 10% of a harvestable area should be excluded to protect Tree Geebungs with the 10% figure acting as a trigger to engage the Environmental Performance team;

(c) The Management Action requires VicForests to protect mature Tree Geebungs from disturbance where reasonably practicable. It does not say that there is no need to protect mature Tree Geebung if they are prolific in a coupe. To the contrary, if it is reasonably practicable to protect mature Tree Geebungs, the Management Action requires this to be done whether or not mature Tree Geebungs are prolific in an individual coupe.

(d) It is hard to understand why VicForests in the future would need, or seek, to harvest a coupe where desktop assessment and pre-harvest field survey had identified that mature Tree Geebungs were prolific throughout the coupe rather than select a coupe not subject to such a major harvesting limitation or free of mature Tree Geebung altogether. There is no evidence of any practical, economic or social imperative that requires VicForests to seek to harvest coupes in which mature Tree Geebungs, an endangered species, are prolific.

448 The protection of mature individuals not found in clusters in harvesting areas is even more problematic under the SMP:

(a) While the SMP does state that mature individuals not part of a cluster are to be protected where reasonably practicable to do so, and draws attention to very large Tree Geebung (exceeding 30cm DBH) , isolated mature individuals needed to promote seed development and regeneration post-harvest, and to coupes where mature Tree Geebung occur infrequently, protection is left to an assessment of whether it is reasonably practicable to do so having regard to the location and context of individuals, and their risk of exposure to windthrow, and the practicalities of conducting regeneration activities.

(b) The SMP does not address the need for buffers and firebreaks for regeneration burning around isolated mature individuals. It does not direct the person making the assessment to the need to consider and provide for the buffers and firebreaks required to ensure that mature individuals will be protected and survive.

(c) The provisions of the SMP are deficient in that they do not clearly set out the steps and measures to be taken by VicForests' staff and contractors to achieve the Management Action.

449 In my view, the provisions of the SMP do not give full or sufficient effect to the Management Action. The SMP suffers from omissions and uncertainties and is lacking in detail as to what is to be done to ensure that the Management Action is achieved.

450 I accept Mr Mueck's evidence that these provisions are weak and inadequate to comply with the Management Action and the Code. They are likely to permit continuing degradation of the Tree Geebung species through the loss of significant numbers of mature Tree Geebungs, particularly in coupes where they are prolific, as well as individual Tree Geebungs not found in clusters which are left unprotected or inadequately protected.

451 I accept Mr Mueck's opinion that a 50m buffer of undisturbed vegetation is required for the protection of mature individuals, with each tree located more than 15m from the perimeter of the buffer.

452 The SMP does not provide that buffers are required in exclusion areas for mature individuals. In the case of a cluster of mature Tree Geebungs, the 10m radius circle process may provide limited protection for mature individuals within a cluster. However, the extent of buffer provided is much less than 50m and is inadequate to protect mature Tree Geebungs from exposure and windthrow.

453 I accept Mr Mueck's evidence that, without an adequate buffer, Tree Geebungs are highly vulnerable to exposure and windthrow. In my view, the buffer arrangements proposed in the SMP are fundamentally inadequate to protect mature individuals from exposure and windthrow, whether found in clusters or as isolated individuals. They are likely to permit continuing degradation of the Tree Geebung species.

454 I have considered whether the provision of a 50m buffer of undisturbed vegetation protecting mature individual Tree Geebung is reasonably practicable. I find that the provision of such a buffer around mature Tree Geebungs whether found in clusters or isolated individuals is reasonably practicable. All that the provision of a buffer requires is to leave the existing vegetation around the mature individual Tree Geebung undisturbed. An interlocutory injunction requiring 50m buffers to be provided around mature Tree Geebung in the Wet Forest areas of the Central Highlands has been in force since February 2021. There is no evidence of any difficulties associated with this requirement. However, there may on infrequent occasions be difficulties with this requirement for example where access through a buffer area is essential and cannot be practicably achieved by other means. The orders that I propose to make in this proceeding will address this possibility.

455 The SMP provides that slash and harvesting debris must not be allowed to accumulate within 3m of Tree Geebung exclusion areas. It also provides for mineral earth breaks to be in place around exclusion areas to protect mature Tree Geebungs from the impacts of regeneration burning. In coupes, or sections of coupes, containing a Tree Geebung exclusion area, broadcast high-intensity regeneration burns are to be avoided where reasonably practicable. Modified burning techniques, such as low intensity head and slash burns or mechanical disturbance are to be prioritised.

456 As Mr Brown said, low intensity burns can be difficult to control as they are more responsive to factors outside the control of firefighters and remain alight for longer periods, increasing the risk of fire spotting outside the burn area. By contrast, fast ignitions are relatively easy to manage as convection is predictable and fuels burn more quickly, reducing the risk of fire outside the planned area. However, fast ignition burns bring with them the serious risk of destruction or damage to Tree Geebungs through radiated heat and moisture loss, or by the escape of fire.

457 VicForests' experience with regeneration burns shows that a 3m firebreak is not adequate to protect mature individuals from destruction or damage. I accept Professor Feller's evidence that a 10m firebreak is essential where possible if Tree Geebungs are to have better prospects of surviving regeneration burns. A 10m firebreak requires slash to be removed 10m from buffer or exclusion areas by mechanical equipment before the regeneration burn is ignited. I am satisfied that this degree of separation is essential if mature individuals are to be protected from disturbance where reasonably practicable. Unless this is done, it is highly likely that degradation of the Tree Geebung species will occur as mature individuals are burnt, destroyed or damaged by regeneration burning.

458 I have considered whether the provision of a minimum 10m firebreak around slash and harvesting debris for the protection of mature Tree Geebung is reasonably practicable. I hold that it is. Mr Brown described the use of mineral earth breaks wider than 3m as a common practice in regeneration strategies. The provision of a 10m firebreak is the existing practice for Tasmanian forests. It is also consistent with the Bushfire Management Manual which allows for firebreaks of up to 40m. There is no reason why it should not also apply in Victoria. While very steep slopes, rocky, or inaccessible terrain might limit the use of bulldozers to create 10m firebreaks in uncommon circumstances, advance planning of coupes, coupe boundaries and exclusion areas will avoid almost all situations where a 10m firebreak cannot be achieved.

Tree Geebungs within available harvest areas under VicForests' SMP and excluded under proposed injunctions

459 The conclusions I have reached above are strongly supported by other evidence. In order to better understand the consequences of timber harvesting for Tree Geebungs, the Court sought the assistance of the parties to examine the coupe maps exhibited to the affidavits of Mr Gunn. The maps related to fifteen coupes, and compared the location of Tree Geebungs excluded from available harvest areas in these coupes under the SMP as against the locations of Tree Geebungs excluded from harvesting under the SMP and Warburton's methodology. A table summarising the data is at Schedule A to this judgment. While the 2021 SMP was used for the study, this makes no difference to the result. The ranges shown in some rows and columns reflect the different estimates of the parties, but do not affect the ultimate result or the conclusions to be drawn from the study. Comments agreed by the parties are also set out in Schedule A.

460 The overall results are significant and clear-cut. Between 195 and 207 mature Tree Geebungs, approximately 175 juveniles, and about 86 Tree Geebungs of unknown maturity are located within available harvest areas of the fifteen coupes under the SMP but are excluded from harvesting under Warburton's methodology. The study demonstrates that the application of Warburton's methodology would afford substantially greater protection to mature individuals than the SMP alone would do.

461 For the reasons I have given, the SMP is an inadequate prescription to achieve the minimum required by the Management Action. If VicForests and its contractors act in accordance with the SMP, it is inevitable that there will be ongoing contraventions of the Code and Standards and significant losses of mature Tree Geebungs. Compliance with the Code and Standards requires targeted pre-harvest surveys of coupes to identify and locate mature Tree Geebungs, the provision of proper buffers during timber harvesting, and wider firebreaks to protect mature Tree Geebungs within buffers from the destructive effects of regeneration burning.

462 Subject to the condition specified in the next paragraph, Warburton is entitled to injunctive relief in order that individual Tree Geebungs with a DBHOB of at least 10cm are protected from disturbance where reasonably practicable. The injunctive relief is necessary to achieve compliance with the Code and Standards. The injunctive relief will restrain VicForests, its servants, agents or contractors from carrying out timber harvesting operations in any Wet Forest Coupe in the Central Highlands, including the Pat's Corner coupe, unless:

(a) prior to commencing timber harvesting operations:

(i) a person experienced in the identification of Tree Geebungs surveys the coupe utilising transects spaced at a maximum of 30m;

(ii) VicForests identifies and records the location of each individual Tree Geebung with a DBHOB of at least 10cm ('specified Tree Geebung');

(iii) VicForests ensures that the relevant coupe map identifies a protective buffer comprising at least a 50m radius circle, measured in the horizontal plane, of undisturbed vegetation around each specified Tree Geebung within the coupe, with each specified Tree Geebung located at least 15m horizontally from the perimeter of that circle; and

(iv) VicForests ensures that the relevant coupe plan provides adequate specifications and conditions to ensure that the vegetation within buffers remains undisturbed in the course of the timber harvesting;

(b) in the course of conducting timber harvesting operations, including regeneration burns, VicForests does all things reasonably necessary and practicable to ensure that:

(i) vegetation within the buffers as specified in the relevant coupe map in fact remains undisturbed and the specifications and conditions in the relevant coupe plan are followed; and

(ii) prior to conducting regeneration burns, a firebreak of at least 10m in width is created to separate buffers around specified Tree Geebungs from the area of the regeneration burn.

463 In accordance with the Management Action, the injunctions will be conditional. VicForests need not comply with these injunctions if in the case of any individual coupe, or part of a coupe, it is not reasonably practicable to do so. In order to ensure accountability in such a case, the destruction or damage of one or more mature Tree Geebung is to be recorded in the relevant coupe log, setting out the reason or reasons why it was not possible to comply with the injunctions, and signed by the Senior Forest Officer or other senior person within VicForests responsible for the harvesting or regeneration burning of the coupe. I will also require that the incident and the reason or reasons why it was not possible to comply with the injunction be promptly reported by email or by other digital means to the OCR and to Warburton as the party which has the benefit of the injunctions.

464 There is no need for the declaratory relief alternatively sought by Warburton.

465 I answer the questions posed in the agreed further amended statement of issues as follows:

1. Does the plaintiff have standing to bring the proceeding? Yes

2. In carrying out timber harvesting operations in:

(a) Pat's Corner; or

(b) alternatively, Wet Forest Coupes in the Central Highlands

in order to effectively comply with cl 2.2.2.4 of the Code and/or cll 4.2.1.1 and 4.2.1.3 and Appendix 1 Table 14 of the Standards as they apply to Tree Geebung and/or cll 2.2.2.2 and/or 2.2.2.10 of the Code, is VicForests:

(c) required in relation to Tree Geebung to implement:

(i) the measures set out in paragraph A of the prayer for relief in the FFASOC; or

See [462] and [463] above

(ii) the measures set out in paragraphs AA and AAA of the prayer for relief in the FFASOC; or

Paragraph AA - see [462] and [463] above

Paragraph AAA - No

(iii) the measures set out in paragraphs AB and AC of the prayer for relief in the FFASOC; or

Paragraphs AB and AC - No

(iv) any other measures, and if so what measures; or

See [462] and [463] above

(d) able to meet those obligations by implementing VicForests' Tree Geebung Special Management Plan.

466 The parties have requested that they have the opportunity to be heard in relation to the final form of orders to be made by the Court in consequence of these reasons. I will give directions for the parties to bring in orders to give effect to these reasons, and hear the parties as to the final orders to be made by the Court (if necessary) and as to costs.

Tree Geebung excluded from potential available harvest area under VicForests' SMP

Locations of Tree Geebungs within available harvest areas under VicForests' SMP and excluded under Warburton Environment's methodology

• Entries in the three columns relating to 'Locations of Tree Geebungs within available harvest areas under VicForests' SMP and excluded under Warburton Environment's methodology' do not include Tree Geebung already excluded under VicForests' SMP.
• Tree Geebung marked as 'Mature - physiology' and 'Mature - assumed' are both counted as mature for the purposes of this table.
• Only trees within the relevant coupe boundary are considered.

• The counts in the table are agreed other than where changes have been tracked. Where numbers are separated by a slash, the first number is the plaintiff's count and the second number is the defendant's count.
• The first (left-hand) set of columns headed "Mature individual", "Juvenile Individual" and "Unknown maturity individual" refer to red, orange, yellow and green stars surrounded by blue or orange circles that are excluded from the dotted areas representing potentially available harvestable area ("Available Harvest Area") using VicForests SMP.
• The columns headed "Mature cluster", "Juvenile cluster" and "Unknown maturity cluster" refer to Red, Orange, Yellow and green stars surrounded by green circles located anywhere within the coupe boundaries.
• The columns under the general heading "Additional Tree Geebung saved under Warburton Environment's methodology" are Red, Orange, Yellow and Green stars surrounded by blue circles that are located within the Available Harvest Area.
• Trees falling within black hatched areas reflecting areas previously harvested have not been included in the count.
• The maps exhibited to Mr Gunn's affidavits were produced using data from the relevant shapefile recording Tree Geebung survey data.
• Each map uses stars to identify GPS waypoints from the relevant shapefile.
• As Mr Gunn explained in his oral evidence on 23 February 2022 (transcript of hearing at T348.26-30), multiple Tree Geebung may be present at a single GPS waypoint.

[3] Sustainable Forests (Timber) Act 2004 (Vic) s 46(a); Code cl 1.2.8.

[4] These include a judgment of the Court of Appeal: Warburton Environment Inc v VicForests [2021] VSCA 194.

[5] RFA cl 16; see also Bob Brown Foundation v Commonwealth [2021] FCAFC 5; (2021) 283 FCR 225, 228.

[6] The expression 'Code of Practice' is defined in s 3 of the CFL Act to mean 'a Code of Practice under Part 5 as amended and in force for the time being'.

[7] Victoria, Victoria Government Gazette, No S 198, 28 October 2003.

[9] Victoria, Victoria Government Gazette, No S 343, 1 October 2013; Victoria, Victoria Government Gazette, No S 153, 24 April 2019 ('2019 order').

[10] Warburton Environment Inc v VicForests [2020] VSC 337.

[11] Bushfire Management Manual (at 30 August 2017).

[12] Matthew Brown, a witness called by VicForests, gave evidence that 'slash' is a type of fuel consisting of harvesting residues.

[13] Warburton Environment Inc v VicForests [2020] VSC 337.

[14] Warburton Environment Inc v VicForests (Supreme Court of Victoria, Garde J, 6 August 2020).

[15] Warburton Environment Inc v VicForests (Supreme Court of Victoria, Garde J, 7 August 2020).

[16] Warburton Environment Inc v VicForests (Supreme Court of Victoria, Garde J, 23 September 2020).

[17] Warburton Environment Inc v VicForests (Supreme Court of Victoria, Garde J, 6 October 2020).

[18] Warburton Environment Inc v VicForests (Supreme Court of Victoria, Garde J, 16 October 2020).

[19] Warburton Environment Inc v VicForests (No 3) [2021] VSC 35.

[20] Bushfire Management Manual (at 30 August 2017) pt 3.5.1.2 cl 7.2.

[22] Maguire v Parks Victoria [2020] VSCA 172; (2020) 245 LGERA 141, 161.

[23] Warburton Environment Inc v VicForests (No 3) [2021] VSC 35, [17].

[24] VicForests v Warburton Environment Inc [2021] VSCA 194, [124]-[135] (Niall, Emerton and Kennedy JJA).

[25] Kinglake Friends of the Forest Inc v VicForests (No 4) [2021] VSC 70 (Richards J).

[26] (2021) 248 LGERA 28 ('Kinglake'), 49-53 (Niall, Emerton and Kennedy JJA).

[27] Transcript of Proceedings, VicForests v Kinglake Friends of the Forest Inc [ 2022] HCATrans 56 (Gageler and Steward JJ).

[28] Warburton Environment Inc v VicForests (No 2) [2020] VSC 738, [39]-[44].

[29] (1980) 146 CLR 493, 547 ('ACF').

[30] Ibid 530-1 (Gibbs J, Mason J agreeing). See also North Coast Environment Council Inc v Minister of Resources [1994] FCA 1556; (1994) 55 FCR 492, 511-2 (Sackville J).

[31] [2020] VSCA 172; (2020) 245 LGERA 141, 153-4.

[33] Kinglake (n 26), 51 (citation omitted).

[34] Kinglake (n 26), 51 (citation omitted).

[35] Kinglake (n 26), 52 (citation omitted).

[39] Warburton Environment Inc v VicForests (No 3) [2021] VSC 35, [17].

[40] Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398; Minister for Immigration and Citizenship v Anochie [2012] FCA 1440; (2012) 209 FCR 497, 504 (Perram J).

[41] (1998) 194 CLR 355, 384 (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).

[42] [2009] HCA 41; (2009) 239 CLR 27, 46-7 (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).

[43] [2017] HCA 34; (2017) 262 CLR 362, 368 (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).

[44] (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).

[45] [1963] 1 WLR 929, 933-4. See also Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528, 531 (Murphy J); Meade v Nillumbik Australia Pty Ltd [2019] VSC 786, [43] (Cavanough J); Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd [2020] VSC 345, [33] (Garde J).

[46] [2014] NSWCA 149; (2014) 86 NSWLR 499, 508-9 (citations omitted).

[47] [2013] VSCA 356; (2013) 42 VR 456, 495 (Warren CJ and Garde AJA agreeing) ('MyEnvironment').

[50] [2016] VSCA 129; (2016) 218 LGERA 1, 14-5 (Warren CJ, Osborn and Beach JJA) (citations omitted).

[51] (1980) Vic SC 313; (1980) 57 LGRA 284, 290. Quoted by Southwell J in City of Springvale v Heda Nominees Pty Ltd [1982] Vic SC 295; (1982) 57 LGRA 298, 308 and cited in ibid 15.

[52] [2019] VSCA 298; (2020) 60 VR 505, 527 (citations omitted).

[53] Tree Geebung individuals with a DBHOB of 10cm are classified as mature individuals by DELWP's Forest Regulation Unit and the experts - see paragraph [116] above.

[54] Macquarie Dictionary (online at 21 March 2022) 'retain'.

[55] Oxford English Dictionary (online at 21 March 2022) 'retain'.

[56] Macquarie Dictionary (online at 21 March 2022) 'protect'.

[57] Oxford English Dictionary (online at 21 March 2022) 'protect'.

[59] Macquarie Dictionary (online at 21 March 2022) 'disturbance'.

[61] Oxford English Dictionary (online at 21 March 2022) 'disturbance'.

[63] Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304, 322 (Gaudron J).

[65] Uebergang v Australian Wheat Board [1980] HCA 40; (1980) 145 CLR 266, 305 (Stephen and Mason JJ).

[66] R v Archdall and Roskruge; ex parte Carrigan [1928] HCA 18; (1928) 41 CLR 128, 136 (Knox CJ, Isaacs, Gavan Duffy and Powers JJ); Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110, 117 (Starke J), 122 (Dixon J).

[67] M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146, 165 (Goldberg, Weinberg and Kenny JJ); Lansdell v Reed (1981) 28 SASR 253. 255 (Walters J); Marshall v Gotham Co Ltd [1954] AC 360, 373 (Lord Reid).

[68] Uebergang v Australian Wheat Board [1980] HCA 40; (1980) 145 CLR 266, 306 (Stephen and Mason JJ)

[69] Deal v Father Pius Kodakkathanath [2016] HCA 31; (2016) 258 CLR 281, 301-2 (French CJ, Kiefel, Bell and Nettle JJ).

[70] Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117, [33] (Murphy JA with whom Martin CJ and Mazza J agreed).

[71] Marshall v Gotham Co Ltd [1954] AC 360, 378 (Lord Keith of Avonholm).

[72] Snedden (aka Vasiljkovic) v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; (2014) 315 ALR 352, 371 (Middleton and Wigney JJ with whom Pagone J relevantly agreed).

[73] [2010] VSC 335; (2010) 30 VR 1 ('Brown Mountain').

[74] [2006] NSWLEC 133; (2006) 67 NSWLR 256, 269 ('Telstra').

[75] Brown Mountain (n 73), 47, quoting Telstra (n 74), 269-70.

[76] Brown Mountain (n 73), 47, citing Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48.

[77] Brown Mountain (n 73), 48_,_ citing Telstra (n 74), 271.

[78] Brown Mountain (n 73), 48, citing Telstra (n 74), 273-5.

[86] Ibid 46, quoting Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270, 282.

[87] Brown Mountain (n 73), 46-7, quoting Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102, 118-9.

[88] VicForests v Friends of Leadbeater's Possum Inc (2021) 285 FCR 60, 111-17 (Jagot, Griffiths and SC Derrington JJ); WOTCH v VicForests (No 2]) [2020] VSC 99, [121]-[133] (McMillan J); Kinglake Friends of the Forest Inc v VicForests [2021] VSC 788 (McDonald J); Environment East Gippsland Inc v VicForests (No 2) [2021] VSC 869 (Richards J).

[89] [2012] VSC 91, [90], citing Brown Mountain (n 73), 45.

[91] Calculated on the basis of 1,500ha per annum for eight years selected from 290,215ha.

[93] The SMP does not employ paragraph numbers, making it difficult to give specific references.