On 10 December 2013 the Victorian Court of Appeal dismissed an appeal brought by MyEnvironment Inc, from a decision of Justice Osborn in the Supreme Court of Victoria.
Supreme Court of Victoria
At first instance, Justice Osborn of the Supreme Court of Victoria dismissed the proceeding brought by MyEnvironment Inc to restrain VicForests from logging in three timber coupes in the forests of the Central Highlands of Victoria. The Court considered whether, in addition to existing environmental protections and restrictions, small areas within these coupes should be zoned as protected habitat for the endangered Leadbeater's Possum.
The parties disagreed on the construction of the relevant Forest Management Plan as well as an Action Statement which related to the Leadbeater’s Possum. The Action Statement was made with a view to protecting the habitat of the possum whose survival was understood to be directly linked to the availability of suitable habitat. MyEnvironment Inc claimed that VicForests was in breach of its obligations under both the Plan and the Action Statement.
In accordance with the Sustainable Forests (Timber) Act 2004, VicForests was also obliged to comply with any code of practice relating to timber harvesting. The relevant code of practice contained a precautionary principle which stated, inter alia, that when contemplating decisions which would affect the environment, the defendant must carefully evaluate management options to avoid serious or irreversible damage to the environment and to properly assess the risk-weighted consequences of various options. It was submitted by MyEnvironment Inc that Vicforests had breached the precautionary principle.
Justice Osborn held that the proposed logging by Vicforests would not breach the requirements of the Forest Management Plan, the Action Statement relating to the Leadbeater’s Possum or the precautionary principle. His Honour found that MyEnvironment Inc had failed to show that the initial timber harvesting by VicForests was unlawful.
The proceeding was therefore dismissed.
Court of Appeal
On appeal, the Court of Appeal upheld the interpretation of the zoning criteria applied by Justice Osborn, which it said was consistent with scientific evidence as well as the regulatory instruments which had been formulated to achieve a balance between a multiplicity of objectives, including the competing interests of environmental protection and the continuation of a sustainable timber industry.
The Court of Appeal held that the interpretation urged by MyEnvironment Inc failed to acknowledge that the stringent zoning classification in question was not designed to capture all suitable habitat, but only that which is optimal or with presently existing potential. The Court therefore held that there was no error in the judgment of Justice Osborn at first instance, and dismissed the appeal with costs.