Background
Save Wallum Incorporated sought a permanent injunction under s 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to prevent Clarence Property Corporation Ltd and Bayside Brunswick Pty Ltd from developing land at Brunswick Heads, New South Wales, or continuing vegetation-slashing works without federal environmental approval.
The development had received state approval for a staged subdivision comprising 123 residential lots, three medium-density lots, a public reserve, roads, infrastructure, earthworks, vegetation management and conservation zones. Save Wallum alleged that the project was likely to have a significant impact on five federally listed threatened species: the Wallum Sedge Frog, Mitchell’s Rainforest Snail, Long-nosed Potoroo, Koala and South-Eastern Glossy Black Cockatoo.
The respondents denied that significant impacts were likely, relying in part on consent conditions and management plans governing habitat protection, water and vegetation management, monitoring, reporting and remedial action. Interim restraints had limited work on the land while the proceeding was pending.
The Court’s Holding
Justice Perry dismissed the application, holding that Save Wallum had not proved a real, rather than remote, possibility that the development would have a significant impact on any of the five listed species. Consequently, the Court refused the requested final injunction. Costs were reserved.
The Court rejected Save Wallum’s treatment of the development as a fixed “snapshot,” finding that the statutory assessment had to account for the consent’s adaptive monitoring, reporting and remedial requirements. It also held that Save Wallum had at times effectively reversed the burden of proof by requiring the respondents to establish that no significant impact would occur.
Species by species, the Court found that the evidence did not establish the required likelihood of significant impact. Among other findings, the relevant Wallum Sedge Frog detections were not in breeding habitat and the artificial ponds were appropriately designed; the snail occurred in conservation areas rather than the development footprint; the potoroo was not shown to inhabit the land; the development footprint was an area of low Koala activity and did not contain critical habitat; and the project would not remove the cockatoo’s preferred feeding, nesting or roosting habitat. Proposed mitigation and habitat-enhancement measures also informed the assessment.
Key Takeaways
- An applicant seeking an EPBC Act injunction bears the burden of proving a real and not remote possibility of a significant impact on a listed threatened species.
- The likely impact of a development must be assessed as a whole, including enforceable management, monitoring, reporting, mitigation and remedial measures—not merely its initial physical footprint.
- Gaps in survey evidence do not, without more, justify an affirmative inference that a threatened species or critical habitat is present.
Why It Matters
The decision illustrates the evidence-intensive nature of federal threatened-species litigation where a project already has state development approval. Criticism of surveys, modelling or mitigation will not itself establish a likely significant impact; the applicant must connect the alleged deficiencies to a real possibility of an impact meeting the statutory threshold.
It also shows that courts may give substantial weight to adaptive management conditions and potential conservation gains when assessing the project in its approved form. Because Save Wallum failed on every species alleged, no referral or Commonwealth approval under the EPBC Act was shown to be required on the case presented.