Plaintiff v Defendant [2022] VSC 668 | Case summary

Conservation, Forests and Lands Act 1987Plaintiff v Defendant [2022] VSC 668 | Case summary | Zoe

[26]

(1) What is the proper interpretation of s 2.2.2.2 of the Code?

Section 2.2.2.2 of the Code means that VicForests, as the managing authority and a harvesting entity, must always apply the precautionary principle to the conservation of biodiversity values, including when planning and conducting timber harvesting operations in State forests.

Applying the precautionary principle involves two inquiries - (a) are there threats of serious or irreversible environmental damage, (b) about which there is a lack of scientific certainty? If the answer to both of those inquiries is 'yes', proportionate measures to prevent environmental degradation should not be postponed.

(2) What is the proper interpretation of s 2.2.2.4 of the Code?

Section 2.2.2.4 of the Code is a mandatory action that requires VicForests, during planning, to identify whether and where the biodiversity values listed in the first column of Table 13 of the Standards are present in a coupe, before undertaking timber operations such as roading and harvesting. The phrase 'biodiversity values' is used in s 2.2.2.4 of the Code to refer to things, including species of fauna and flora, that have value to biodiversity. The two species with which these proceedings are concerned, greater gliders and yellow-bellied gliders, are biodiversity values for the purposes of s 2.2.2.4. Where they are present in a coupe, VicForests must address risks to them by taking management actions consistent with the Standards. These actions may be in addition to the management actions already prescribed in Table 13, where that is necessary to address risks to the species.

(3) What measures does VicForests take in its timber harvesting operations for the conservation of greater gliders?

VicForests relies on pre-harvest spotlight surveys conducted by the Department of Environment, Land, Water and Planning (DELWP), in addition to spotlight surveys carried out by its own staff and contractors. It is not the practice of either DELWP or VicForests to survey an entire coupe; they both survey transects approximately one kilometre in length within a coupe. Where possible, VicForests conducts these surveys along an existing road or track.

VicForests retains habitat trees, as required by cl 4.1.1.1 and Table 12 of the Standards, giving priority to hollow-bearing trees and to trees most likely to develop hollows in the short term. It uses variable retention harvesting as its preferred method of timber harvesting.

In East Gippsland, VicForests applies a protection area of approximately 100 hectares where a 'relative abundance' of greater gliders is detected, as required by cl 4.2.1.3 and Table 13 of the Standards. VicForests does not do this in the Central Highlands, where there is no equivalent prescription.

In both East Gippsland and the Central Highlands, VicForests retains 40% of the basal area of eucalypts across each harvested coupe in which three or more greater gliders are detected per spotlight kilometre.

(4) Is the precautionary principle engaged in relation to greater gliders?

Yes. There is a threat of serious and irreversible damage to greater gliders as a species, in that the species is at risk of extinction. It is a listed threatened species which has been assessed to be facing a very high risk of extinction in the wild in the near future. I am also satisfied that VicForests' timber harvesting operations in East Gippsland and the Central Highlands present a threat of serious or irreversible harm to the greater glider as a species. There is a lack of scientific certainty about the nature and extent of the threats to the species, including as to the effect of timber harvesting operations on the species.

(5) If so, is VicForests applying the precautionary principle to the protection of greater gliders?

I consider the application of the precautionary principle to the conservation of greater gliders in two parts - protection and detection. Issue 5 concerns what the precautionary principle requires for the protection of greater gliders. At Issue 9, I consider what the precautionary principle requires for their detection.

In relation to Issue 5, I have concluded that VicForests does not currently apply the precautionary principle to the protection of greater gliders.

The expert ecologists recommended two alternative measures for protecting greater gliders from destruction by timber harvesting operations in their habitat.

(a) One approach is to retain a circular area of approximately 18 hectares of suitable habitat centred on a confirmed greater glider sighting. This approach allows for intensive timber harvesting outside of the exclusion area.

(b) The second approach is to retain a smaller area of around three hectares, corresponding to the home range of any greater glider detected within the coupe. Within the remainder of the coupe, at least 60% of the basal area should be retained, protecting suitable habitat features such as hollow-bearing trees and feed trees. This approach provides better protection for undetected greater gliders.

Both approaches involve maintaining connections between retained areas of habitat and other suitable glider habitat.

I prefer the second approach, as the more proportionate of the two.

VicForests does not currently take either of these approaches. The actions that VicForests takes to conserve greater gliders that have been detected within a coupe scheduled for harvest are inadequate and, in many cases, unlikely to be effective. They are also not consistent with relevant scientific research. In particular, variable retention harvesting was not shown to be effective to conserve greater glider populations in harvested coupes. The available evidence was that variable retention harvesting is of no short to medium term benefit to greater gliders, and that its impact is similar to clearfall harvesting.

VicForests' current approach falls well short of what the precautionary principle requires for the conservation of greater gliders. The ecological evidence was clear - greater gliders that live in coupes that are harvested in accordance with VicForests' current practices will probably die as a result of the harvesting operations.

(6) What measures does VicForests take in its timber harvesting operations for the conservation of yellow-bellied gliders?

In East Gippsland, VicForests detects yellow-bellied gliders in the same way that it detects greater gliders. VicForests does not specifically survey for yellow-bellied gliders in the Central Highlands.

VicForests retains habitat trees, giving priority to hollow-bearing trees and to trees most likely to develop hollows in the short term. It uses variable retention harvesting as its preferred method of timber harvesting.

In East Gippsland, but not in the Central Highlands, VicForests applies a protection area of approximately 100 hectares where a 'relative abundance' of yellow-bellied gliders is detected, as required by cl 4.2.1.3 and Table 13 of the Standards.

(7) Is the precautionary principle engaged in relation to yellow-bellied gliders?

Yes. There is a threat of serious and irreversible damage to yellow-bellied gliders as a species, in that the species is at risk of extinction. It is a listed threatened species which has been assessed to be facing a high risk of extinction in the wild in the medium term. Further, VicForests' timber harvesting operations in East Gippsland and the Central Highlands present a threat of serious or irreversible harm to the yellow-bellied glider as a species. There is a lack of scientific certainty about the nature and extent of these threats, including as to the effect of timber harvesting operations on yellow-bellied gliders.

(8) If so, is VicForests applying the precautionary principle to the protection of yellow-bellied gliders?

No. VicForests does not currently apply the precautionary principle to the protection of yellow-bellied gliders.

The ecologists recommended two alternative measures for protecting yellow-bellied gliders from the effects of timber harvesting operations in their habitat.

(a) One approach is to retain a circular area of approximately 38 hectares of suitable habitat around a family group of three or more yellow-bellied gliders. This approach allows for intensive timber harvesting outside of the retained area of habitat.

(b) The second approach is to identify and retain the feed trees of yellow-bellied gliders, as well as recruitment trees around each feed tree and hollow-bearing trees within a coupe. Across the harvested area of the coupe, at least 60% of the basal area should be retained. This approach does not support intensive timber harvesting in any part of a coupe in which yellow-bellied gliders are present.

Again, both approaches depend on maintaining connectivity between areas of suitable glider habitat, including by retaining riparian strips along waterways.

Again, I prefer the second approach, as the more proportionate of the two.

VicForests' existing timber harvesting practices do not take either of these measures for the protection of yellow-bellied gliders. The actions that it does take, such as variable retention harvesting, are unlikely to be effective, and are not supported by relevant monitoring and research. Variable retention harvesting was not shown to be effective to conserve yellow-bellied gliders in harvested coupes, and its impact is comparable to clearfall harvesting. The ecological evidence was that yellow-bellied gliders that live in coupes that are harvested in accordance with VicForests' current practices will probably die as a result of the harvesting operations.

(9) Is VicForests applying the precautionary principle to the detection of gliders?

VicForests' current approach to detecting greater gliders and yellow-bellied gliders is considerably less than s 2.2.2.2 of the Code requires. In order to apply the precautionary principle to the conservation of greater gliders and yellow-bellied gliders, VicForests must survey the whole of any coupe proposed for harvest which may contain glider habitat. It must do so using a survey method that is likely to detect any gliders that may be present in the coupe, so as to locate the gliders' home ranges wherever practicable. This is necessary in order that their essential habitat can be excluded from timber harvesting operations, as the precautionary principle requires - in the case of greater gliders, their home ranges, and in the case of yellow-bellied gliders, their feed trees and hollow-bearing den-trees within the coupe.

At present VicForests does not survey all of a coupe before harvesting, and so it plans and undertakes timber harvesting operations without knowing where gliders live within the coupe and which parts of the coupe should be retained for their habitat. In order to comply with s 2.2.2.2 of the Code, VicForests needs to undertake much more thorough pre-harvest surveys for greater gliders and yellow-bellied gliders.

The plaintiffs proposed a survey protocol that is a reliable and effective method for detecting and locating gliders within a coupe. The protocol is both safe and feasible. However, it is highly prescriptive, and it may not be safe or effective to apply it in every coupe. It is also not the only effective method of detecting gliders, in particular yellow-belled gliders.

(10) Is VicForests applying s 2.2.2.4 of the Code in East Gippsland?

No. VicForests is not applying s 2.2.2.4 of the Code in East Gippsland. It does not meet its obligation to identify whether and where greater gliders and yellow-bellied gliders are present in a coupe, when planning to harvest the coupe. The spotlight surveys it relies on to detect gliders are limited to a one kilometre transect through a coupe. This leaves most of the coupe unsurveyed, and provides incomplete information about whether gliders are present and where their home range is located. Without knowing where the gliders are within a coupe, it is not possible for VicForests to take management actions to address risks to them.

Moreover, the management actions that VicForests currently takes to protect greater gliders and yellow-bellied gliders in East Gippsland are not effective to address risks to them. Effective management actions to address the risks to greater gliders and yellow-bellied gliders, based on the ecological expert evidence, are set out at Issues 5 and 8 above.

(11) Is VicForests applying s 2.2.2.4 of the Code in the Central Highlands?

For similar reasons, VicForests is not applying s 2.2.2.4 of the Code in the Central Highlands. It does less in the Central Highlands to identify whether and where gliders are present, because it does not specifically survey for yellow-bellied gliders. The management actions it takes in relation to greater gliders are not effective to address risks to them. It takes no specific management action for the protection of yellow-bellied gliders in the Central Highlands. Effective management actions to address risks to both species were identified by the ecological experts, as summarised at Issues 5 and 8 above.

(12) In East Gippsland, is VicForests correctly applying cl 4.2.1.3 of the Standards?

No. The location, composition and shape of a protection area of approximately 100 hectares of 'suitable habitat' for a relative abundance of greater gliders or yellow-bellied gliders should be guided by the ten principles agreed by the expert ecologists. At present, VicForests is not guided by the ten principles for determining suitable habitat when designing a protection area of suitable habitat for a threshold population of gliders, and it does not propose to adopt them.

VicForests currently has no criteria for determining whether a population of gliders detected in East Gippsland is a 'substantial population' in 'isolated habitat' for the purposes of Table 13. The ecological evidence provided criteria for identifying a 'substantial population' of gliders in 'isolated habitat'. A 'substantial population' of greater gliders is at least 20 greater gliders within 100 hectares, and 'substantial population' of yellow-bellied gliders is at least two family groups of at least three yellow-bellied gliders within 100 hectares. Isolated habitat is suitable habitat surrounded by hostile habitat at least 100 metres wide, where any corridors of suitable habitat through the hostile habitat are less than 100 metres wide.

(13) Is VicForests likely, absent an order of the Court, to apply cl 4.2.1.3 of the Standards incorrectly in future?

Yes. Based on the evidence of VicForests' Regional Manager East Gippsland, I am satisfied that it is likely to misapply cl 4.2.1.3 of the Standards in future absent an order of the Court.

(14) Should injunctions be granted in the form sought by the plaintiffs, or in some other form?

Injunctions should be granted to give effect to my conclusions in relation to Issues 5, 8, 9, 10 and 11. I will hear from the parties about their final form, by reference to a formulation that I propose below.

(15) Should declarations be granted in the form sought by the plaintiffs, or in some other form?

Declarations should be made in the East Gippsland proceeding, although not in the precise form sought by EEG. I do not consider it necessary to make declarations that cover the same ground as the injunctions that will be ordered in each proceeding.

[274]

The greater glider is particularly sensitive to forest clearance (Tyndale-Biscoe & Smith 1969a) and to intensive timber harvesting (Kavanagh & Bamkin 1995; Kavanagh & Webb 1998; Kavanagh & Wheeler 2004; Mclean et al. 2018), although responses vary according to landscape context and the extent of tree removal and retention (Kavanagh 2000; Taylor et al. 2007).

Large hollow-bearing trees are in rapid decline in some landscapes (Lindenmayer et al. 2017a,b) primarily due to timber production practices and bushfires that prevent trees growing to an age when they might produce hollows (Lunney 1987; Lindenmayer et al. 2018b). Site-level, tree-level (e.g. size, extent of decay) and landscape factors all appear to influence the rate of collapse of hollow-bearing trees. Lindenmayer et al. (2018a) found that the probability of collapse of hollow-bearing trees in remnant 1 ha patches increased with an increasing amount of logged or burned areas in the surrounding landscape (within a 2 km radius), most likely due to altered wind patterns from a reduction in forest cover. The decline in hollow-bearing trees is a concern for recovery as the greater glider is dependent on this habitat feature, and the development of hollows in suitable tree species can take over a century (Mackowski 1984). Additionally, the abundance of hollow-bearing trees may be an overestimate of the actual number that are suitable for occupation by wildlife, as only one in every 3-5 hollow-bearing trees within montane ash forests is occupied by arboreal marsupials (Lindenmayer et al. 1990b, 1993). A decline or loss of hollow-bearing trees reduces the numbers of greater gliders in the landscape (Mclean et al. 2018).

Greater gliders are sensitive to fragmentation (McCarthy & Lindenmayer 1999a,b; Lindenmayer et al. 2000; Eyre 2006; Taylor & Goldingay 2009). Although greater gliders have small home ranges, their low reproductive rate and sensitivity to disturbance means they tend to become locally extinct in small and fragmented habitat patches. Greater gliders disperse poorly across vegetation that is not native forest, and so do not readily recolonise isolated sites from which they have been lost (Pope et al. 2004). In a study of remnant patches 50 ha in size, Youngentob et al. (2013) found that the probability of occurrence of greater gliders increased as the area of remnant habitat increased. It is difficult to identify the smallest patch size used, as this likely varies across the range depending on vegetation type, quality, connectivity and other environmental factors. Greater gliders have been found in habitat patches >
The greater glider is sensitive to bushfire (Lunney 1987; Andrews et al. 1994; Lindenmayer et al. 2011; Mclean et al. 2018) and is slow to recover following major fires (Kavanagh 2004). Substantial losses or declines of greater glider populations have been documented after fires (see Table 1), through direct mortality and indirect impacts on habitat (McLean et al. 2018).

Over the longer term, repeated disturbance such as intense or too-frequent fires degrades greater glider habitat by changing the composition, structure and nutrient profile of forests. Fire can increase or decrease the amount of tree hollows depending on the fire regime, age and species of the dominant trees, and disturbance history. Fire can destroy live and dead hollow-bearing trees, particularly in young forests because smaller diameter trees have a lower capacity to survive burning (Gibbons & Lindenmayer 2002). Fire can also result in extensive losses of dead hollow-bearing trees (Lindenmayer et al. 2012), though these are less preferred by greater gliders. Eyre et al. (2010) found that the density of such trees was substantially reduced by both low-frequency and high-intensity fires (wildfire), and by high-frequency and low-intensity burns associated with stock grazing management. Too-frequent fires can change the floristic composition and nutritional profile of glider habitat if a fire returns before the dominant trees preferred by gliders can mature and reproduce (Lindenmayer et al. 2013, Au et al. 2019). A positive feedback loop may also occur as dense regrowth is at higher risk of burning at high severity (Taylor et al. 2014).

Greater glider populations are slow to recover and recolonise burnt sites following fire and may take decades to return (Andrew et al. 2014; Lumsden et al. 2013; Vic SAC 2015; Lindenmayer et al. 2021), due to the low reproductive rate of the species and its limited dispersal capabilities. Habitat fragmentation can compound the impact of fires by hampering the recolonisation ability of greater gliders. Recovery depends on there being no further major fires in the interim (Vic SAC 2015). Major bushfires in 2003, 2006−2007 and 2009 burnt much of the species' range in Victoria, and further fragmented its distribution as evidenced by surveys and species records (Lumsden et al. 2013; Vic SAC 2015). Since the 2009 fires, spotlighting records of greater gliders (southern and central) in the Kinglake East Bushland Reserve and nearby areas have significantly declined and not yet recovered (C Cobern 2015. pers comm 9 November). Unburnt areas provide critical refuges for greater gliders in regions heavily impacted by fires, as they may be the only areas with the requisite habitat attributes within extensive landscapes for many years (Lumsden et al. 2013; Chia et al. 2015).

[278]

The sensitivity of greater gliders (southern and central) to timber harvesting has been well documented. Although some habitat across the species' range is found in conservation reserves (Smith & Smith 2018, Wagner et al. 2020), where timber harvesting is excluded and the removal of HBTs[125] is subject to constraints, prime habitat coincides largely with areas suitable for timber harvesting (Braithwaite 1984). There is a progressive decline in numbers of HBTs in some production forests, as harvesting rotations become shorter and dead stags collapse, and HBTs are not being replaced due to lack of recruitment (Ross 1999; Ball et al. 1999; Lindenmayer et al. 2011, 2012).

The degree of impact depends on forest type and timber harvesting intensity, with larger declines in more heavily logged sites (Tyndale-Biscoe & Smith 1969b; Lunney 1987; Kavanagh et al. 1995; Kavanagh & Webb 1998; Kavanagh 2000; McLean et al. 2018). In the Central Highlands of Vic, where clearfelling is undertaken, Lindenmayer et al. (2017b) found that the rate of loss of HBTs greatly exceeded the rate of recruitment. The area of clearfelled forest adjacent to wildlife corridors was also found to increase the chance of collapse of HBTs, possibly due to the greater exposure of stems to elevated wind speeds at corridor edges. However, models investigating the impacts of forest disturbance on the greater glider (southern and central) in the same area found that timber harvesting in the surrounding landscape was not a significant covariate influencing the probability of occurrence of the species (Lindenmayer et al. 2020).

Recovery of subpopulations following timber harvesting is slow. Subpopulations in south-east NSW had not recovered 8 years after timber harvesting in sites retaining 62%, 52% and 21% of the original tree basal area (Kavanagh & Webb 1998). In the regrowth Mountain Ash forests (Central Highlands) of Vic, greater gliders (southern and central) were absent post-timber harvesting until the forests were >38 years old (Macfarlane 1988).

Greater Gliders can persist, albeit likely in lower numbers, following harvesting. Kavanagh (2000) found that, in production forests in south-east NSW, subpopulations could persist post-timber harvesting if 40% of the original tree basal area was retained, provided (adjoining) riparian vegetation was also protected. An analysis overlaying all detections (from the Victorian Biodiversity Atlas and VicForests Species Observations layer) made post-harvest in timber harvesting areas in Vic since 1980, found that the species can persist in timber harvesting regrowth areas of very young age (VicForests 2021).

The impacts of timber harvesting on greater gliders can be mitigated by landscape-level management strategies that retain habitat corridors and HBTs (Eyre 2006; Woinarski et al. 2014). In 2019, VicForests began moving away from clearfelling towards variable retention systems, which aim to retain more habitat trees and reduce the use of controlled burns for regeneration post-harvest. Protections for the species in East Gippsland and the Midlands (where Special Management Zones were required) were also revised to retain 40% of the basal area of eucalypts across each coupe where ≥5 greater gliders per km2 are identified.

Under the new Victorian Forestry Plan, harvest rates will reduce from 2024, leading up to a cessation of all native forest timber harvesting by 2030 (VicForests 2021).

However, cumulative impacts of the 2019-20 bushfires, ongoing prescribed burning, timber harvesting and climate change will continue to put pressure on remaining greater glider habitat. Fire-logging interactions likely increase risks to greater glider populations.

[305]

Unfortunately, this outcome has not generally been borne out in practise as landscapes subject to intensive logging over extensive areas become increasingly fragmented. This is partly because of the edge effects formed by individual logging operations and because follow-up fire management can damage or destroy retained stems. However, of greater impact is the longer-term (>120 years) fragmentation of mature forest habitat by intensive logging, carried out extensively. The longer-term stochastic effects generated by extensive areas of intensive logging provides numerous other potentially lethal impacts on SGG populations. That is why the SGG has declined so dramatically in the extensive areas of intensively managed forests in Victoria and NSW. ...

There has subsequently been a pronounced loss (possibly local extinction) in the State forests reported by Kavanagh (2000) and surrounds, as logging proceeded at landscape scale. Presumably some animals were killed in the logging operation, while others were subsequently killed by predation (see Tyndale-Biscoe & Smith 1969), or died from starvation or exposure at the sites, due to fragmentation and edge effects generated by the logging activity as it progressed across the landscape. Thus, starvation, predation and exposure have immediate serious effects on populations of SGGs in their impacted habitat.

These effects are particularly pronounced in a situation where any retained vegetation is not aligned with the requirements of the species being protected (i.e., in this case the SGG). As Kavanagh (2000) also found, 'The presence and absence of particular tree species also influenced the distribution of the Greater Glider. Forests containing Manna Gum E. viminalis and Mountain Gum E. dalrympleana were highly preferred compared to forests with a high proportion of E. obliqua. The presence of E. cypellocarpa appeared to improve the quality of habitat for the Greater Glider in forests dominated by E. obliqua.' Thus, when retaining vegetation for SGG, it is imperative to retain relevant vegetation (i.e., mature vegetation of the appropriate species composition) where SGGs actually occur.

...

A failure to know where SGGs occur in a proposed coupe means that it is very possible (even likely), that any retained vegetation does not reflect the requirement of the SGGs. In other words, there is some risk that habitat without SGGs, or unsuitable for SGGs, will be retained while habitat containing them, or suitable for them will not. If this occurs, retention of vegetation within the coupe may not provide any protection for this species in this area. Thus, for the intent to retain SGGs within a local region to be enacted, it is necessary to survey the entire proposed coupe using an appropriate methodology likely to detect them (should they be present). Once their locations are known, it becomes possible to take action to avoid a real threat of serious or irreversible damage to the environment. This would require exclusion from logging, an approximately circular area of approximately 240 metres radius centred on the confirmed SGG sighting.

[307]

62. Professor Wardell-Johnson's suggested approach of setting aside 18 ha per confirmed observation of SGG may be problematic where detections are made in areas not entirely composed of suitable habitat. This may especially be the case in mature mixed-species forests of East Gippsland, composed of favourable and unfavourable tree species or previously disturbed habitat.

63. In such conditions, a basal-area based approach to protecting SGG habitat may be more suitable within the context of timber harvesting. While retaining at least 40% of the initial basal area may suffice in some scenarios (Kavanagh, 2000; Wagner et al., 2021b), precaution must be taken to adequately assess the spatial distribution of feeding and nesting resources within the area. If resources are dispersed, more habitat features and therefore basal area must be retained to protect and sustain a local SGG population.

64. Given the proposed approach is based on the location of SGG detections, a concern would be about areas within the coupe containing suitable habitat but where SGGs were not detected but may be present. Depending on the silvicultural system applied, the impact of timber harvesting in these areas can be serious and irreversible, while a targeted retention of habitat features across the coupe area would preserve SGG habitat more broadly.

65. Such an approach could therefore look as follows: Any SGG detection could be placed in a retention patch equal to the size of its average home range in mature forests (~2.6 ha, see Henry, 1984; Kehl & Borsboom, 1984; Comport et al., 1996; Kavanagh & Wheeler, 2004; Pope et al., 2004; G. C. Smith et al., 2007). The remainder of the coupe area is subjected to a >60% selective aggregated retention across the coupe area to protect suitable habitat features and avoid their dispersal through more intense harvesting. These features should be hollow-bearing trees, favourable foraging species and potential recruitment hollow-bearing trees.

66. Furthermore, it is important to retain connectivity to other suitable habitat (e.g. other retention patches for SGG protection and nearby undisturbed mature forest) to ensure gene-flow and dispersal of individuals in and out of the retained patches. For example, riparian strips 100 m or greater in width were found to be effective for maintaining arboreal marsupials in harvested areas (Goldingay & Kavanagh, 1991; Goldingay & Kavanagh, 1993; Lindenmayer et al., 1993; Kavanagh & Bamkin, 1995; Kavanagh & Webb, 1998).

[320]

(a) VicForests only applies the 40% retention prescription where three or more greater gliders are detected per spotlight kilometre. The evidence revealed no scientific basis for this detection threshold.

(b) Similarly, in the East Gippsland FMA, VicForests only sets aside 100 hectares of suitable habitat where surveys have detected more than ten greater gliders per spotlight kilometre. Again, I could discern no scientific basis for this detection threshold in the evidence. Where lower densities of greater gliders are detected, it may be the case that no habitat is set aside. For example, in Wolpertinger coupe, in the Bendoc region of East Gippsland, where seven greater gliders were detected in two of the three surveys conducted, VicForests did not plan to set aside the coupe as suitable habitat for those gliders.[150]

(c) Where a greater glider has been detected, VicForests does not necessarily set aside any area of habitat centred on the location of the detection, in order to preserve the glider's home range. The proposed HCV map for Wolpertinger coupe is one example,[151] with greater glider detections dotted around the edge of the habitat that VicForests plans to retain, exposing the gliders to the edge effects described by Associate Professor Wardell-Johnson. In East Gippsland, the 100 hectares of suitable habitat that must be retained under cl 4.2.1 and Table 13 of the Standards need not bear any relationship to the gliders' home ranges.

(d) The 40% retention prescription in the Greater Glider Action Statement is wholly inadequate for the protection of greater gliders within a coupe. The 2000 study by Dr Kavanagh, on which the prescription is apparently based, recommended at least 40% basal retention in addition to the retention of riparian buffers. The 40% retention prescription involves retention of 40% of the basal area of eucalypts across the entire coupe, including riparian buffers. In addition, the 40% retention prescription can be applied without reference to the location of a glider's home range, and so may not preserve this critical habitat.

(e) VicForests' variable retention harvesting methods were not shown to be effective to conserve greater glider populations in harvested coupes. VicForests led no evidence that its variable retention systems were developed by reference to 'relevant monitoring and research' or the 'advice of relevant experts and relevant research in conservation biology and flora and fauna management'.[152] The high point was a reference to a literature review of similar systems internationally and in Tasmania, conducted by a forest consulting firm.[153] To date there has been only rudimentary evaluation of the impact of variable retention harvesting on greater gliders, in the form of VicForests' post-harvest survey program. As discussed, no reliance can be placed on a conclusion drawn from that program that greater gliders persist in coupes logged using variable harvesting.[154]

(f) Far from demonstrating that variable retention harvesting is effective to conserve greater gliders, the available evidence is that it is of no short or medium term benefit to them.[155]

(g) The plaintiffs sought to demonstrate that the retained basal area of eucalypts in the harvested area of four coupes harvested using the VR1 harvesting method was between 8 and 11%.[156] Both ecologists considered a basal area retention of 10% to be in effect clearfall harvesting.[157] Accepting that there is some margin for error in the plaintiffs' calculations, the retained basal area that is planned in all four coupes is much lower than Dr Wagner considered necessary to conserve greater gliders - generally 60% or more.

[365]

(a) The detection of yellow-bellied gliders in a coupe scheduled for harvest in the Central Highlands FMAs does not result in VicForests retaining any area of habitat for those gliders.

(b) In the East Gippsland FMA, VicForests only sets aside 100 hectares of suitable habitat where surveys have detected a 'relative abundance' of yellow-bellied gliders - that is, more than five per spotlight kilometre. For example, in Wolpertinger coupe, in the Bendoc region of East Gippsland, four yellow-bellied gliders were detected in the first two surveys conducted, and two in the third, which were not enough to trigger the prescription.[186] The basis for the detection threshold of five per spotlight kilometre was not explained by the ecologists, or by other evidence. It was Associate Professor Wardell-Johnson's opinion that an area of habitat should be retained where a family group of three or more yellow-bellied gliders is detected.

(c) Where the detection threshold is triggered in East Gippsland, the 100 hectares of suitable habitat that VicForests sets aside is not necessarily centred on where the yellow-bellied gliders have been detected.[187] An illustration is the proposed operations map for Tiger coupe, which was the subject of my interlocutory ruling in Environment East Gippsland Inc v VicForests (EEG No 1).[188] In that instance, there are recorded detections of yellow-bellied gliders outside the proposed protection area, in the area planned to be harvested.

(d) While VicForests' Habitat Tree Survey Guidelines direct attention to hollow-bearing trees, its pre-harvest habitat tree surveys do not presently attempt to identify and plot the locations of sap-feed trees used by yellow-bellied gliders.[189] According to Dr Wagner, these trees can be identified by a distinctive V-shape that yellow-bellied gliders make with their jaws when feeding. These marks are noted in VicForests' survey procedure for yellow-bellied gliders, as an indicator of the species' presence that may identify areas of suitable habitat to be surveyed at night.[190] However, there is no direction to identify and note the location of these trees so that they can be set aside from harvesting.

(e) VicForests' variable retention harvesting methods were not shown to be effective to conserve yellow-bellied glider populations in harvested coupes. VicForests did not seek to demonstrate that its variable retention systems were developed by reference to 'relevant monitoring and research' or the 'advice of relevant experts and relevant research in conservation biology and flora and fauna management'.[191] Nor was there any suggestion that VicForests had attempted to evaluate the impact of variable retention harvesting on yellow-bellied gliders.

(f) To the contrary, the available evidence is that variable retention harvesting is of no short or medium term benefit to gliders.[192]

(g) As discussed in relation to greater gliders, variable retention harvesting as it is practised by VicForests may involve the retention of as little as 10% of the basal area in the harvested area of a coupe, the equivalent of clearfelling.[193] Both VR1 and VR2 harvesting methods are much more intensive than the 60% basal area retention recommended by Dr Wagner for the conservation of yellow-bellied gliders. Associate Professor Wardell-Johnson considered that the use of VR1 and VR2 harvesting methods proposed in Wolpertinger coupe in East Gippsland would not effectively address risks from logging operations, and that gliders inhabiting the harvestable area of the coupe would almost certainly die as a direct result of the logging operation - from predation, starvation, or exposure.[194]

[378]

134. Considerable research has been undertaken on appropriate survey methods to detect SGGs, YBGs and CBPs[199] (e.g., Lindenmayer et al., 2001; Chick et al., 2020; Cripps et al., 2022), particularly in Victoria. Chick et al., (2020) have provided survey guidelines for spotlighting and recording of arboreal mammals in Victoria. These guidelines are valid and reliable as a sampling procedure, and have been used to detect levels of abundance used to trigger particular management actions, such as designation of protection areas (Chick et al., 2020). Thus, up to three repeat surveys are used along the same 1 km long transect, in the most appropriate habitat, by two independent observers at ideal detection times, under suitable weather conditions (see also Cripps et al., 2021) to obtain a reliable minimum population of SGGs and YBGs in the particular area surveyed. The transect takes about 10 minutes per 100 metres (plus recording time).

135. The approach advocated by Chick et al. (2020) is a suitable sampling procedure and satisfies requirements for validity and reliability to identify whether the requirements for a protection area of approximately 100 ha in East Gippsland set out in Table 13 of the Standards are triggered (i.e., Question 5c).

136. However, spotlighting detects only a subset of the actual population of any given species (e.g., Goldingly & Sharpe 2004) in an area. For example, only 25% of squirrel gliders present were detected, even with 9-12 census periods (Goldingly & Sharpe 2004). The percentage of the population detected is much higher with the sampling procedure adopted in Chick et al., (2020) and tested by Cripps et al., (2021) for YBGs and SGGs. Thus, the approach advocated in Victoria is well designed, repeatable and effective (i.e., it is valid and reliable) at recording a sample of the target species (i.e., SGG, YBG, CBP).

137. However, while a repeated, single 1 km long transect will have a high probability of detecting SGGs, YBGs and CBPs along that transect (should they be present), the program is designed to minimise chances of double counting, rather than detecting all individuals in a given area (other than along the transect surveyed). Hence a reliable minimum estimate is obtained of the sampled population. Cripps et al., (2021) confirmed the importance of using two independent observers (15-20 minutes apart) on the same transect to derive minimum population estimates of this sample. The overall approach is not, however, designed to detect abundance (or indeed presence) in any but the sampled area.

138. Given that the detectability of SGGs and CBPs is poor beyond 25 m from a transect (and beyond 150 m for YBGs), there is a high likelihood of not detecting some SGGs or CBPs that are present in any area (e.g., a proposed logging coupe) that is anywhere, more than 50 m wide (i.e., more than 25 m off the transect; or YBGs if > 300 m wide) using the procedure recommended by Chick et al. (2020). Thus, in circumstances where it is important to determine presence anywhere in a given area (e.g., in a proposed logging coupe), as well as numbers present of SGGs, YBGs or CBPs, this survey approach must be modified accordingly.

139. Thus, the approach advocated by Chick et al. (2020) is insufficient of itself to enable assessment of whether or not it would be possible to prevent serious or irreversible damage to the environment arising from destruction of SGGs or their habitat as a result of timber harvesting operations in the Central Highlands and East Gippsland (i.e., Question 5b).

140. Because of the damaging impacts of edge effects on SGGs and YBGs (e.g., Lindenmayer et al., 1993; Nelson et al., 2013), it is important to consider the impacts of road building, logging, tending, activities associated with regeneration (e.g., burning), or other activities likely to be detrimental to these species where they occur. It is also necessary to consider the unintended consequences of such activities on surrounding tenures and landscapes (e.g., adjacent reserves, buffers and national parks).

141. If a goal is to prevent serious or irreversible damage to the environment arising from destruction of SGGs or their habitat as a result of timber harvesting operations in the Central Highlands and East Gippsland, then additional survey effort is required. This survey effort is required to determine whether or not SGG in particular (but also CBPs, and possibly YBGs), occur in the particular area of any potential coupe that is likely to be subject to intensive logging operations.

142. Therefore, to determine the spatial patterns of SGGs prior to disturbance, it is necessary to spotlight for SGGs using a repeated series of transects set 50 m apart in any proposed coupe that is anywhere more than 50 m wide prior to any operations. Further, to provide information that enables locations to be determined, and hence conservation of this species, these surveys should also be conducted 50 m into surrounding habitat. This survey would be parallel with the proposed coupe boundary, 50 m into surrounding vegetation. This survey should include all vegetation types and all management histories on publicly managed land (e.g., State Forest, National Park).

143. This approach will provide a high chance of detecting SGGs and CBPs within 75 m of the proposed boundary of the coupe, although it is recognised that some animals beyond 75 m from the edge could be deleteriously affected by the edges created in logging operations.

144. This survey effort would need to be prior to commencement of roading and harvesting operations in the Central Highlands and East Gippsland, as required by cl 2.2.2.4.

145. For the purposes of conservation of SGGs, YBGs and CBPs, it is more important to err on the side of potentially double counting, than to err on the side of a failure to detect when these species are present. Thus, three repeat surveys (rather than up to three repeat surveys) should also be conducted in these transects. Other components of survey technique as recommended by Chick et al. (2020) are considered appropriate for assessment of SGGs in Victorian forests. These include matters of OH&S such as undertaking surveys during calm weather and avoiding traversing dangerous areas such as overhanging 'widow-makers'. These surveys enable an understanding of the location of SGGs in relation to any proposed logging or associated operation.

146. Note that the necessity for accurate knowledge of the whereabouts of SGGs (as well as YBGs and CBPs) becomes most urgent under circumstances that are likely to impact adversely on populations of these species. This includes proposals to intensively log areas that include these species and associated suitable habitat. Thus, a failure to know where these species occur in any proposed coupe means that it is very possible (even likely), that any retained vegetation may not be relevant to their requirements. In other words, where there are attempts to manage logging operations within the context of SGGs or YBGs, there is some risk that unsuitable habitat or habitat without SGGs or YBGs may be retained, while habitat containing them or suitable for them will not, despite the best intentions to cater for their requirements. If this occurs, retention of vegetation within a coupe may not provide any protection for these species in the particular intensively managed area.

147. YBGs are detectable approximately 150 m from survey transects. Therefore, this species is detectable at some distance by a transect following the boundary of any proposed coupe, or approximately through the centre of most coupes. Should they be detected beyond the boundary of that proposed coupe, appropriate management intervention can be implemented to prevent edge effects and unintended consequences.

148. It is recognised that spotlighting at the intensity required to provide adequate survey for the presence or abundance of SGGs (or CBPs) over any given area (e.g., proposed logging coupes), raises issues in implementation. These include OH&S, as well as detection capacity, particularly in areas of dense regrowth (such as following the 2019/20 Black Summer fires). These issues are resolved by recognition that survey is required to ensure coverage of a given area, rather than being carried out as a bureaucratic exercise. In other words, there will be circumstances where straight-line surveys traversing the entire length of a coupe will not be possible, but that alternatives exist. Under such circumstances, it is important that surveyors are aware of all access points to the proposed coupe and that they plan accordingly to ensure adequate survey coverage. Further, surveyors must be sufficiently experienced in spotlighting and be equipped with appropriate mobile-based digital vegetation and topographic information of the proposed coupe.

149. As recommended by Chick et al. (2020), all survey lines will be traversed and taped during daylight hours prior to spotlight surveys being undertaken. Further, in areas where recent regrowth or dense understorey vegetation precludes line of site into the canopy, strategic understorey vegetation trimming or changes of survey position may sometimes be required. Appropriate clothing, equipment, training and care must always be associated with spotlight surveys in tall forest.

150. In conclusion, if there is intent to retain SGG, YBGs and CBPs within local forest compartments within the context of the timber industry, it is necessary to survey entire proposed coupes using a relevant and appropriate methodology that is likely to enable their detection, should they be present. This additional survey effort has potential to enable the prevention of serious or irreversible damage to the environment arising from destruction of SGGs or their habitat as a result of timber harvesting operations in the Central Highlands and East Gippsland. Once the locations of these animals are known, management actions, such as set asides, can be taken to prevent serious or irreversible damage in the context of the logging operation. This survey effort is required prior to the commencement of roading and harvesting operations, as required by cl 2.2.2.4.

[380]

80. While I agree that the current survey guidelines can only detect subsets of the SGG population within a coupe and additional survey efforts may be needed to determine distribution of individuals across the coupe, I have some concerns about the proposed systematic survey methodology and implications about the distribution of SGGs across the coupe.

81. A systematic survey on multiple transects following the coupe boundary and placed 50 meters apart could lead to an increase in double detections and therefore bias the assumptions about population density within the coupe. Assuming good detection rates up to 25 meters from the transect, SGGs that do not move from their position during the survey may be double counted from transect to transect. It may be possible to identify double counted individuals by comparing survey results from the different transects, but it will be hard to determine these in many cases.

82. Even if double counts can be avoided, it is questionable whether an entire coupe can be surveyed in one night, to then compare the detected numbers with surveys from another night. It would likely require large survey teams to survey each transect at a favourable time and good weather conditions. If the transects can't be completed within one night and at the same time, a true abundance still can't be determined because during another survey period the same individual could be observed elsewhere (as it moved across its home range) or not observed at all. The subject of detectability is further complicated if understorey vegetation is dense, as discussed by Professor Wardell Johnson in Paragraph 149.

83. Therefore, a true abundance within the coupe area will be hard to determine with any survey design. Transect surveys, especially in densely populated coupes can nevertheless give an appropriate measure of density and dispersion within the surveyed area.

84. Nevertheless, I would still agree that more than one transect may be required, especially where high densities of SGGs are detected, but the transect can't cover the entire coupe length or area.

85. The results from the SGG survey in the Rookery coupe can serve as an example here: Detections were made uniformly in the western part of the coupe until about half of the transect. This would suggest SGGs are distributed uniformly in that part of the coupe, even beyond visibility on the transect. This should be sufficient evidence to inform management decisions and determine that low retention rates may not be appropriate here if harvesting is to be conducted.

86. The second half of the transect had fewer observations, with a single observation made near the end of the transect. This raises questions whether this last observation is a sign of a lower density subpopulation in that area of the coupe, or if additional survey effort would reveal another area with a high density of SGGs, if the survey would continue eastwards.

87. In the case of the Rookery coupe, the area that was not surveyed in the east of the coupe was chosen for patch retention, although the abundance of animals is unclear. Especially if such an area is chosen to be excluded from harvesting, additional surveys should be conducted to ensure they provide protection for the local SGG population, before any management decisions are made.

88. Survey design should also be dependent on the shape of the proposed coupe. Large square areas will require multiple transects to make assumptions about animal abundance and density across the coupe area, whereas long coupe shapes may be covered with fewer transects following the shape of the coupe but spanning its length.

89. Advanced survey methods such as double-observed distance sampling (Cripps et al., 2021) on multiple shorter transects allow for better density estimations by calculating the exact location of the animal to the observer/transect and not relying on raw counts. Such methods could be used to improve abundance estimates in forest coupes.

[384]

Grant Wardell-Johnson's response

Rookery coupe provides an excellent example of the failure to adequately survey for HCVs such as YBGs and SGGs in the context of coupe planning for logging operations. In the absence of effective coupe surveys, it is impossible to know where HCVs such as the gliders are and where their home ranges might be. A failure to adequately survey will result in poor planning and management decisions. Therefore, adequate survey is required. I have provided a set of guidelines on how such survey may be conducted [1GWJ136-146]. Dr Wagner has also provided a set of guidelines. The point is that whatever method is used (and there may be numerous adequate alternatives), it must be valid and reliable and able to determine where in the coupe and in the immediate vicinity of the coupe HCVs such as YBGs and SGGs occur. Adequate, repeatable survey provides the knowledge required for coupe planning, including the size and placement of internal and adjacent set asides, in the context of VR.

Benjamin Wagner's response

Both Professor Wardell-Johnson and I provide approaches to better determine the abundance and density of SGGs or YBGs across a coupe area and therefore provide better information as to where habitat retention is needed [BW 84-87, 1GWJ136-146]. We both agree that in the case of the Rookery coupe, the coupe area has not been adequately surveyed to determine how subpopulations of SGGs are spatially distributed and therefore if areas selected for habitat retention actually contribute to the protection of the species [BW 72-79, 1GWJ186-197]. While I think that a systematic survey across the entire coupe area may not be feasible [BW 81-83], I still suggest that multiple transects are needed to better inform management about where habitat needs to be retained [BW 84]. The amount and length of survey transects should be dependent on the shape and area of the proposed coupe and surveys need to be conducted wherever suitable habitat features exist [BW 59, 88].

[486]

Principle 1 (Precaution, prevention and future proofing). Choice of location, composition, boundaries and management of the protection area should always be guided by the location of populations of the SGG to provide greatest opportunity for persistence.

Principle 2 (Presence of SGGs). A protection area should include all recent verifiable records of SGGs in the immediate vicinity.

Principle 3 (Habitat components). A protection area should include structurally diverse forest, evidenced by (for example) large, mature trees and records of other mature forest dependent species, with few or no signs of previous intensive logging activity.

Principle 4 (Vegetation type). A protection area should include suitable mature forest of appropriate overstorey tree species composition for SGGs.

Principle 5 (Size and shape considerations). A protection area should have minimum edge effect (i.e., be round or square, rather than linear) wherever edges are hostile, and maximum distance from edges to SGG records.

Principle 6 (protection areas in fragmented landscapes). In extensively and intensively modified zones (i.e., > 50% modified or proposed to be modified to hostile habitat within 1 km of a coupe centre), any remnant of mature forest within 1 km of this point connected to habitat including a threshold number of SGGs, regardless of fire history, is to be designated as a protection area.

Principle 7 (Logging history). A protection area should be mature forest and include no hostile habitat and a minimum area ( >
Principle 8 (Fire history). A protection area can include up to 15% of mature forest impacted by recent intense wildfire where other conditions are met. Once SGGs have again established, the entire protection area can be habitat of a single age-since-fire.

Principle 9 (Boundary context). The boundaries of a protection area should be suitable habitat. Therefore, secure reserved mature forest should be prioritised as protection area boundaries.

Principle 10 (Boundary conditions). The boundaries of a protection area should not act as a passageway or be likely to act as conduits for weed invasion, erosion, pest animals or pathogens, and be of mild slope and distant from streams.

[556]

(a) My conclusions about the proper interpretation of s 2.2.2.2 of the Code and the application of the precautionary principle accord with those reached by Mortimer J in Leadbeater's Possum No 4. VicForests succeeded in its appeal against that judgment, on a single ground of appeal concerning the construction of s 38(1) of the EPBC Act, and the exemption it provides from the operation of Pt 3 the EPBC Act. However, the Full Court rejected all of VicForests' grounds of appeal concerning the interpretation of s 2.2.2.2 and the application of the precautionary principle.[302] It also dismissed the grounds of appeal against Mortimer J's findings that VicForests had failed to comply with s 2.2.2.2 in various respects and was unlikely to comply with it in future.[303] Those findings were damning of VicForests' approach to applying the precautionary principle to the conservation of greater gliders.[304] They might have been expected to prompt some reflection and adjustment of VicForests' approach - regardless of the precedential value of Mortimer J's judgment.

(b) However, in this proceeding, VicForests' position in relation to s 2.2.2.2 of the Code and the precautionary principle was strikingly similar to its position in the Leadbeater's Possum litigation. It maintained that s 2.2.2.2 should be construed narrowly, and that the precautionary principle is only engaged in circumstances where specific timber harvesting operations present a threat of serious or irreversible environmental damage. That position was rejected by Mortimer J and the Full Court, and it has been rejected again in these proceedings.

(c) More concerning is that VicForests' approach to pre-harvest surveys for greater gliders and its harvesting methods in coupes where they are detected (or may be present) is not substantially different from that found in Leadbeater's Possum No 4. Justice Mortimer found that VicForests was not applying the precautionary principle to the conservation of greater gliders, and was not likely to do so in future. I have also found that VicForests' current survey practice and its 'almost universal' use of variable retention harvesting fall well short of what the precautionary principle requires for the conservation of greater gliders. In particular, VicForests still does not thoroughly survey coupes for greater gliders when planning timber harvesting operations.[305] It still plans to harvest areas of forest that greater gliders are known to inhabit, in the face of scientific opinion that this is likely to cause the destruction of those gliders.[306] It still maintains that variable retention harvesting is a less intensive method that meets its obligation to apply the precautionary principle, when the evidence is that it is not effective to conserve greater gliders.[307]

(d) Section 2.2.2.2 and the definition of the precautionary principle in the Code, as amended in November 2021, now contain an explanatory note that instructs VicForests that the precautionary principle is to be understood and applied in s 2.2.2.2 as it was by Osborn J in Brown Mountain. That was another case in which it was found that VicForests' plans to log coupes in East Gippsland without conducting pre-harvest surveys did not comply with the precautionary principle in respect of three threatened species.[308] Despite the recent clarification of the Code, in these proceedings VicForests maintained that s 2.2.2.2 and the precautionary principle should be understood in a different way, and do not require it to undertake adequate pre-harvest surveys for two other threatened species - greater gliders and yellow-bellied gliders. I have rejected those arguments.

(e) In these proceedings, VicForests has continued to resist the idea that its responsibility to apply the precautionary principle to the conservation of biodiversity values means - in the case of greater gliders and yellow-bellied gliders - that it should take care that its timber harvesting operations do not kill them by making their habitat unliveable. It does so despite the expert ecological evidence - including that of its own expert, Dr Wagner - that the conservation of these species requires more intensive pre-harvest surveys and less intensive methods of harvesting timber.

[585]

(a) has its location, composition and boundaries determined by the location of populations of the species of Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area to provide the greatest opportunity for their persistence; > > (b) include all recent records of the particular cluster of Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area, noting that Yellow-bellied Gliders may move around within their home range seasonally; > > (c) include structurally diverse forest evidenced by large, mature trees, feed trees, and records of other mature forest dependant species with few or no signs of previous intensive logging activity; > > (d) include mature forest suitable for the Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area, including: > > > (i) favoured species, for Greater Gliders; and > > > > (ii) transitions, where possible, from wet sclerophyll to lowland forest, or mature gully forest that includes a variety of overstorey tree species, for Yellow-bellied Gliders; > > (e) be round or square and not linear in shape with the cluster of Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area located roughly at its centre, that is, as far as possible from its edges; > > (f) where more than 50% of the habitat within 1 km of the location of the Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area has been modified, or is proposed to be modified to Hostile Habitat, include any remnant of connected mature forest within 1 km of the location of the Greater Gliders or Yellow-bellied Gliders the subject of the relevant protection area; > > (g) comprise mature forest and include no Hostile Habitat, and no more than 15% as a continuous block of land logged between 50 and 100 years ago; > > (h) include no more than 15% of mature forest impacted by recent intense wildfire; > > (i) have boundaries adjoining secure reserved mature forest and/or mature forest along gullies; and > > (j) have boundaries of mild slope, distant from streams, which are not a passageway or likely to act as conduits for weed invasion, erosion, pest animals, or pathogens.

Plaintiff v Defendant

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