VicForests v Friends of Leadbeater's Possum Inc [2021] FCAFC 66

FEDERAL COURT OF AUSTRALIA

VicForests v Friends of Leadbeater's Possum Inc [2021] FCAFC 66 Appeal from: Friends of Leadbeater's Possum Inc v VicForests (No 6) [2020] FCA 1199

File number(s): VID 615 of 2020

Judgment of: JAGOT, GRIFFITHS AND SC DERRINGTON JJ

Date of judgment: 10 May 2021

Catchwords: 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