Environment East Gippsland Inc v VicForests

COURT OR TRIBUNAL

Supreme Court of Victoria

DATE FILED (OR FIRST HEARING DATE)

15/11/2021

LITIGATION TYPE

Project Approval - Adaptation

SUBJECT MATTER

Threatened species

REVIEW TYPE

Judicial review

SUMMARY

(Catchwords) ENVIRONMENTAL LAW – Timber harvesting in State forests – Applications for interlocutory injunctions – Whether serious question to be tried – Precautionary principle – Whether good arguable case that VicForests is required to apply the precautionary principle to conserve the greater glider in coupes where VicForests knows that greater gliders have been detected – Balance of convenience – Interlocutory injunctions granted – Sustainable Forests (Timber) Act 2004 (Vic), s 46 – Code of Practice for Timber Production 2014, cl 2.2.2.2 – Management Standards and Procedures for timber harvesting operations in Victoria’s State forests 2021

"In 2023, the Court of Appeal (Emerton P, Macaulay JA and Kaye JA) dismissed an appeal by VicForests against the decision of a judge in the Trial Division of the Supreme Court.

The respondents, Environment East Gippsland Inc (EEG) and Kinglake Friends of the Forest Inc (KFF), are incorporated associations that have a special interest in the preservation of the forests in East Gippsland and the Central Highlands respectively. EEG and KFF became concerned that VicForests’ timber harvesting operations in those areas threatened the survival of two species of gliding mammals, the southern greater glider and the yellow-bellied glider. They brought proceedings in the Supreme Court seeking declarations and injunctions that, in substance, prevented VicForests from carrying out harvesting operations unless it took certain steps to comply with obligations under the regulatory framework, in particular the Code of Practice for Timber Production 2014 (as amended) (‘Code’).

The Code requires the application of the ‘precautionary principle’ during planning for harvesting, meaning 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 requires the identification of biodiversity values during planning and prior to harvesting.

[…]

The Court of Appeal held that the trial judge had correctly interpreted the requirements of the Code and that the declarations and injunctions were lawful. Contrary to VicForests’ submissions, the precautionary principle does not merely require the adoption of a certain decision-making process when planning timber harvesting. Rather, the principle, as it is expressed in the Code, is directed to ensuring that proper measures are taken to prevent environmental degradation. The trial judge was correct to conclude that the conservation of biodiversity values is a substantive obligation imposed by the Code and to assess, on the expert ecological evidence before her, whether VicForests’ harvesting operations sufficiently addressed the threats faced by the two glider species. Having done so, it was open to her Honour to determine what were the minimum measures necessary to protect against such threats."

CASE DOCUMENTS

Environment East Gippsland Inc v VicForests (No 2) [2021] VSC 869
VicForests v Environment East Gippsland Inc [2023] VSCA 159