Background
Top End Pastoral Company Pty Ltd proposed to clear approximately 2,700 hectares of native vegetation on Claravale Farm and Claravale Station — roughly 60 kilometres north-west of Katherine in the Northern Territory — for dryland cropping. This “Stage 2” clearing was part of a broader three-stage project. On 13 February 2026, a delegate of the Minister for the Environment and Water made two decisions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act): she accepted the referral under s 74A rather than declining it on the basis that Stage 2 was a component of a larger action, and she determined under s 75 that the proposed action was not a “controlled action” requiring ministerial approval before proceeding.
The Environment Centre (NT) Inc (ECNT), represented by Environmental Justice Australia, commenced judicial review proceedings on 26 May 2026, arguing the delegate failed to properly apply the s 74A discretion, acted unreasonably, and failed to take account of the precautionary principle under s 391 of the EPBC Act — particularly regarding impacts on the Ghost Bat, a vulnerable species known to roost near the clearing area. When ECNT learned at a 12 June 2026 case management hearing that clearing works had already begun, Top End gave an undertaking to pause works pending an interlocutory hearing scheduled for 22 June 2026.
At the interlocutory hearing, ECNT sought either an order under s 15 of the Administrative Decisions (Judicial Review) Act 1976 (Cth) suspending the delegate’s decisions, or an injunction restraining Top End from proceeding. ECNT offered an undertaking as to damages capped at $500,000, citing its status as a not-for-profit pursuing charitable environmental purposes.
The Court’s Holding
Justice Moshinsky dismissed the interlocutory application. While the Court accepted that ECNT had established an arguable prima facie case on all four grounds pursued, it assessed Grounds 1 and 2 (concerning the s 74A decision) as weak: s 74A uses the word “may,” indicating a discretion rather than a duty to decline a referral, which made those grounds difficult to sustain. Grounds 4 and 5 (concerning the s 75 “not a controlled action” decision) were considered somewhat stronger but still not strong, given that the delegate had meaningfully engaged with the Ghost Bat issue — including by noting that Top End had already reduced the clearing footprint by 1,911 hectares specifically to increase the buffer from known Ghost Bat roosting sites — and had noted avoidance and mitigation steps and expressly referenced the precautionary principle.
On the discretionary factors, the Court weighed the irreversibility of clearing (favouring relief) against two significant countervailing considerations. First, ECNT had delayed unreasonably: having received the substance of the delegate’s reasoning via the decision brief on 26 March 2026, it waited approximately two months before commencing proceedings and a further two weeks before filing the interlocutory application. The Court found that earlier action could have allowed an expedited final hearing before the 1 July 2026 dry-season deadline for commencement of works, and Top End had suffered prejudice by committing to equipment purchases and staffing in the interim. Second, the $500,000 damages cap was insufficient: evidence from Top End’s director indicated that halting the works could cause losses of approximately $6.6 million in foregone 2027 crop profits, plus the loss of seven staff and contractors engaged for the project.
Balancing these factors, the Court was not satisfied that the interests of justice favoured suspending the decisions under s 15 of the ADJR Act or granting an interlocutory injunction. Costs were reserved.
Key Takeaways
- A prima facie case alone is insufficient for interlocutory environmental relief: courts applying s 15 of the ADJR Act and the balance of convenience will weigh delay by the applicant heavily, particularly where earlier action could have enabled an expedited final hearing before irreversible works commenced.
- A capped undertaking as to damages from a public-interest applicant does not automatically suffice where the respondent’s likely losses materially exceed the cap — here, a $500,000 cap against estimated losses of $6.6 million weighed against relief.
- The EPBC Act’s s 74A uses permissive language (“may”), strongly suggesting the power to decline a referral on the basis that an action is a component of a larger action is a discretion, not a duty — a construction that makes unreasonableness challenges to its exercise difficult.
- A delegate’s express engagement with the precautionary principle (s 391 EPBC Act) and meaningful reduction of a project’s footprint to protect a vulnerable species’ habitat will substantially undermine claims that the “not a controlled action” decision was legally unreasonable.
Why It Matters
This decision is a cautionary note for environmental public-interest litigants challenging EPBC Act “not a controlled action” decisions. The case illustrates that delay between receipt of the decision-maker’s reasoning and commencement of proceedings — even a delay of two months — can be fatal to interlocutory relief where a respondent has invested in reliance on the decision and seasonal windows are immovable. The case also highlights the practical tension between the financial constraints of not-for-profit environmental organisations (which necessitate caps on damages undertakings) and the commercial realities faced by project proponents, which courts will quantify and compare directly.
The underlying judicial review proceedings remain on foot. The final hearing will determine whether the delegate’s treatment of Stage 2 in isolation from the broader three-stage project, and her application of the precautionary principle to the Ghost Bat, satisfy the requirements of the EPBC Act — questions with broader significance for how cumulative impacts of staged land-clearing projects are assessed under Australia’s federal environmental law.