Friends of Leadbeater’s Possum Inc v VicForests

COURT OR TRIBUNAL

Federal Court of Australia

DATE FILED (OR FIRST HEARING DATE)

13/11/2017

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Threatened species

REVIEW TYPE

Judicial review

SUMMARY

ENVIRONMENT LAW – application for interlocutory injunction – whether prima facie case – whether on the balance of convenience injunction should be granted – precautionary principle – injunctive relief granted

ENVIRONMENT LAW – listed threatened species – conduct of past and proposed forestry operations in the Victorian Central Highlands Regional Forest Agreement region – precautionary principle – whether exemption in s 38(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) lost because forestry operations were not or are not likely to be undertaken in compliance with the Code of Practice for Timber Production 2014 (Vic) – whether, if the s 38(1) exemption is lost, forestry operations are an action that was likely to have had or is likely to have a significant impact on the Greater Glider or Leadbeater’s Possum or both

ENVIRONMENT LAW – statutory interpretation of exemption from Part 3 of the Environmental Protection Biodiversity Act 1999 (Cth) (EPBC Act) set out in s 38(1) the Act – whether conduct of forestry operations must be undertaken in accordance with any restrictions, limits, prescriptions, and contents of the Central Highlands Regional Forest Agreement (CH RFA) and the Code of Practice for Timber Production 2014 (Code) to secure the benefit of the exemption ENVIRONMENT LAW – alternative grounds of appeal relating to loss of exemption from Part 3 of the EPBC Act – whether failure to apply the precautionary principle as required by clause 2.2.2.2 of the Code resulted in the loss of the s 38(1) exemption – whether the preparation and promulgation of a Timber Release Plan is a ‘forestry operation’ as defined in the CH RFA – whether s 38(1) exemption is lost for every aspect of a forestry operation if the operation is not undertaken ‘in accordance with’ the Code in at least one respect – whether any of the impugned coupes are subject to the s 38(1) exemption ENVIRONMENT LAW – alternative grounds of appeal relating to construction and application of precautionary principle in the Code – whether precautionary principle is subject to two conditions precedent – whether precautionary principle requires that measures be taken to avoid all risks to threatened species – whether VicForests likely to comply with precautionary principle – whether error in the primary judge’s assessment of expert evidence ENVIRONMENT LAW – alternative grounds of appeal relating to miscellaneous alleged breaches of the Code and Management Standards and Procedures for Timber Harvesting Operations in Victoria’s State Forests – whether primary judge erred in finding that there was sufficient evidence to make findings relating to statutory prohibition against taking action likely to have significant impact on listed threatened species

CASE DOCUMENTS

Friends of Leadbeater’s Possum Inc v VicForests (No 3) [2018] FCA 652; 231 LGERA 75
Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704; 244 LGERA 92
VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66; 389 ALR 552