Background
Clarence Property Corporation Limited and Bayside Brunswick Pty Ltd proposed to develop about 12 hectares of a 30-hectare site near Brunswick Heads, New South Wales, for housing. Save Wallum Incorporated sought permanent injunctions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), alleging that unapproved development works and vegetation slashing would significantly affect five listed threatened species.
After a 19-day trial, Perry J dismissed Save Wallum’s substantive proceeding in Save Wallum Incorporated v Clarence Property (No 5) [2026] FCA 1315. Save Wallum then foreshadowed an appeal and applied to continue interim restraints on development works and slashing while that appeal was determined. At the time, the only authorised development activity still materially in issue was construction of artificial ponds intended as habitat for the vulnerable Wallum Froglet, which is protected under New South Wales law but is not a listed threatened species under the federal Act.
The developers undertook to monitor and maintain the ponds, restore affected areas if the trial orders were overturned and no federal approval was obtained, and—if an appeal was filed by 5 October 2026—confine slashing pending appeal to designated areas intended for housing.
The Court’s Holding
Kennett J dismissed the application for an injunction pending appeal. The Court held that Save Wallum had not shown that allowing the limited pond works and slashing to proceed would render its proposed appeal nugatory, or substantially deprive it of the benefit of a successful appeal. The pond works affected a relatively small area, could potentially create habitat for the Wallum Sedge Frog, and were subject to maintenance and restoration undertakings. The effects of slashing were temporary, vegetation could regenerate, and the developers’ undertaking protected most of the site from slashing during any appeal.
The Court was also not persuaded, on the limited argument available shortly after the lengthy trial judgment, that the foreshadowed appeal grounds had strong prospects. Even if Save Wallum established errors concerning the treatment of expert evidence, scientific literature, metapopulation theory, or urbanisation effects, those errors would not themselves establish a contravention of the Act; the significant-impact question would still require evaluation by the Full Court or on remittal.
An injunction would also cause real economic detriment by delaying the development and increasing unrecoverable holding costs. The Court noted the developers’ undertakings but concluded that the application probably would have been dismissed even without them. Save Wallum was ordered to pay 75 percent of the developers’ costs of the interlocutory application.
Key Takeaways
- An applicant seeking an injunction pending appeal must show that refusal would substantially impair the practical benefit of a successful appeal, not merely that the proposed appeal is arguable.
- Targeted undertakings concerning maintenance, ecological restoration, and limits on site work may preserve an appeal’s utility and weigh against interim injunctive relief.
- Establishing an arguable error in the treatment of expert evidence may be insufficient where success on that ground would still leave a substantial evaluative question unresolved.
Why It Matters
The decision illustrates the higher practical hurdle facing an unsuccessful environmental litigant seeking to maintain restraints after final judgment. Courts begin from the position that the successful party is entitled to the benefit of that judgment and focus closely on whether activities undertaken during the appeal would cause irreversible or materially irremediable harm.
It also demonstrates how carefully framed environmental undertakings can affect the balance pending appeal by reducing the risk that works will defeat the appellate remedy, while allowing limited development activity to proceed.