Federal Court of Australia

Save Wallum Incorporated v Clarence Property Corporation Limited [2024] FCA 967

ORDERS

THE COURT ORDERS THAT:

1.    The parties provide draft agreed or competing orders to give effect to this judgment to the Associate of Justice Bromwich within 7 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for an interim injunction under s 475(5) of the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) that would restrain the respondents and their agents from undertaking all but limited works on land they seek to develop in Brunswick Heads, a town in northern New South Wales (the development site). The first respondent is Clarence Property Corporation Limited, the developer of the development site. The second respondent is Bayside Brunswick Pty Ltd, the owner of the development site. The applicant is an incorporated association with the goal of conserving the natural environment at the development site. There is no dispute that it is an interested person with standing to bring this application under s 475(1) of the EPBC Act.

2    The interim injunction sought by the applicant would take effect until determination of the application by the applicant for a permanent injunction restraining the respondents completing the entirety of the planned works at the development site. The interim injunction application was referred to me as duty judge because of a concern by the docket judge as to the possible undesirable need to make credit findings ahead of the trial. As it transpired, no credit findings were needed.

3    At the hearing of this interim injunction application, orders were in place restraining the respondents from completing development works on the site until this application was determined. Those orders contained an exception for the installation of hollow or nest boxes, as is still agreed to be appropriate.

4    There is agreement between the parties that there should be an order restraining the overall development works from taking place until the hearing and determination of the permanent injunction application by the docket judge, with express provision as to what may take place pending that outcome. The disagreement concerns the extent of what should be allowed to take place until the applicant’s permanent injunction application is determined.

5    It is clearer to set out the terms of the proposed orders agreed to, and disputed, rather than attempt to summarise them. Both sides agree that an order should be made as follows:

1.    In these orders, “Development Works” means works conducted on the land at 15 Torakina Road Brunswick Heads pursuant to the Notice of Determination of Development Application 10.2021.575.1, including but not limited to Early Stage 1 Ecological Rehabilitation Works in accordance with Subdivision Works Certificate No. 14.2021.575.1 granted by Byron Shire Council on 1 March 2024.

2.    Until the hearing and determination of the proceeding, the first and second respondents must not, whether by themselves, their servants, agents, contractors or howsoever otherwise carry out or authorise the carrying out of Development Works, other than those works set out in Order 3.

3.    The respondents may:

(a)    [the subparagraphs then differ as between the parties]

4.    Liberty to apply.

5.    Costs reserved.

6    The dispute lies in the content of the subparagraphs to proposed order 3:

(1)    The applicant proposes only the following activities be permitted:

(a)    install hollow or nest boxes in accordance with the Hollow and Nest Box Management Plan, provided that no vehicle (which does not include the use of a trolley by a person on foot) is used to access the trees where the boxes are to be installed; and

(b)    remove weeds in accordance with the Revised Vegetation Management Plan but only by hand and without the use of weedicides.

(2)    The respondents propose the following activities be permitted, noting that the last two are wholly or substantially the same as the applicant’s proposal above:

(a)    install exclusion bunting to the conservation zones shown on Drawing EW_01 in Appendix B to the Revised Wallum Froglet Management Plan by Australian Wetlands Consulting Pty Ltd (AWC) dated 15 February 2024 (Froglet MP);

(b)    install erosion and sediment control measures along the North-South drain in accordance with Table 5.1 of the Froglet MP;

(c)    carry out the works required to establish the Wallum Froglet breeding ponds within degraded tracks as shown on Drawing EW_06 in Appendix B to the Froglet MP (to be supervised by a qualified ecologist as noted in section 2.3 of the Froglet MP);

(d)    carry out monitoring and maintenance of the Wallum Froglet breeding ponds shown on Drawing EW_06 in accordance with the Froglet MP;

(e)    carry out ‘shallow ripping’ (multi-tine ripper to 300 mm depth) to stimulate germination of compacted sand on degraded tracks shown in pink hatching on Drawing EW_06 in Appendix B to the Froglet MP (to be supervised by a qualified ecologist), excluding any portion of those tracks that are not located within Lot 13 DP1251383;

(f)    install hollow or nest boxes in accordance with the Hollow and Nest Box Management Plan dated February 2024, provided that no vehicle (which does not include the use of a trolley by a person on foot) is used to access the trees where the boxes are to be installed; and

(g)    conduct weed maintenance in accordance with the Revised Vegetation Management Plan by AWC dated 26 February 2024.

7    The main dispute turns on the respondents’ proposed order 3(c), namely whether or not the respondents should be restrained from establishing the proposed Wallum Froglet breeding ponds. The applicant describes the respondents’ proposed orders 3(a), (b) and (e) as being minor works in dispute, and (d) as not being opposed if (c) is allowed. The respondents’ proposed order 3(f) is agreed, as is (g) with the caveat that the applicant would require this to be performed by hand and without the use of weedicides. The applicant’s stance entails granting an injunction with few exceptions, while the respondents’ stance entails granting an injunction with a greater number of exceptions.

8    There is no dispute that the applicant has an arguable case for the final permanent injunction of the overall development works, although the respondents contend that the case is less than compelling. It follows that the live issue is the balance of convenience, which is hotly contested. While it was for the applicant to establish that, on balance, the greater degree of restraint was justified, the practical reality was that I was required to determine, on the evidence and arguments, where the balance of convenience fell in relation to each of the exceptions sought by the respondents.

9    The respondents look to complete the ecological works as a necessary step towards completing the overall development in accordance with a development consent issued to Bayside Brunswick by the Northern Regional Planning Panel for Byron Shire Council. The development consent sets out seven stages of works for the development of a subdivided residential complex. In order for Bayside Brunswick to proceed to the next stage of development (stage 2), it must complete the works specified in the previous stage and receive a subdivision works certificate.

The species asserted by the applicant as being adversely affected

10    In order to understand the species that are the subject matter of this interlocutory dispute, and the final dispute before the docket judge, only a brief summary is needed.

11    The applicant seeks a permanent injunction on the respondents’ development works on the basis that they are likely to have a “significant effect” on several species which are listed as threatened under the EPBC Act, using the categorisation in that Act:

(a)    the Mitchell’s Rainforest Snail (critically endangered);

(b)    the Koala (endangered);

(c)    the South-Eastern Glossy Black Cockatoo (vulnerable);

(d)    the Wallum Sedge Frog (vulnerable) (WSF); and

(e)    the Long-nosed Potoroo (vulnerable).

12    The present preliminary injunction application, however, alleges harm only to the Snail, the Potoroo and the WSF if the limited additional works that the respondents propose are allowed to proceed. The competing arguments focused mainly on the WSF, a sensitive acid frog, which inhabits and breeds in acidic coastal ephemeral and semipermanent pools.

13    The WSF takes its name from:

(a)    Wallum, being the coastal environments in the area of northern New South Wales and southern Queensland; and

(b)    sedge, a family of grass-like plant, which includes several Australian native species.

14    Native sedge in coastal environments is habitat for the WSF.

15    Two other species of acid frog are relevant to this proceeding:

(a)    The Wallum Froglet, which is also found on the development site. It inhabits similar environments to the WSF, though can inhabit and breed in a slightly wider range of habitats, including swamps with permanent water in addition to ephemeral pools. The Wallum Froglet is not protected by the EPBC Act, but is by state legislation: Biodiversity Conservation Act 2016 (NSW).

(b)    The Eastern Sedge Frog (ESF), which also inhabits coastal wallum and acid swamps in the general area in which the development site is located.

16    An environmental scientist briefed by the applicant, Associate Professor Greg Wardell-Johnson, describes the ESF and Wallum Froglet as “generalist” species that have less specific habitat requirements than the “specialist” WSF, and are therefore less vulnerable to habitat disturbance than the WSF.

Other factors

17    Before considering the likely consequences for the respondents and the applicant if the interim injunction is or is not granted, other factors alleged to be relevant to the grant of a stay can be dealt with relatively quickly.

Disentitling conduct by the applicant alleged by the respondents

18    The respondents allege that members of the applicant have trespassed on the development site and interfered with development works, and that it has sent “Orange Alert” and “Red Alert” text broadcasts to incite others to do the same. The respondents’ submission is that a relevant consideration in exercising the Court’s broad discretion under s 475 is whether the applicant has engaged in disentitling conduct for the relief sought, similar to the equitable principle requiring applicants seeking injunctive relief to come to Court with clean hands. In other statutory contexts, this Court has found that these principles may be relevant to the question of whether an injunction should be granted under a statute: see Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393 at [57] (Wigney J). The respondents contend that the applicant’s conduct should weigh against the grant of an interim injunction. The applicant resists by disputing both the extent to which the applicant can be said to be liable for this action, and that the texts encouraged illegal conduct. It also argues that the principle in equity of unclean hands is not applicable to the grant of the statutory injunction sought.

19    Injunctions under s 475 of the EPBC Act have a public interest character, in that they are sought for the benefit of listed threatened species, and therefore Australian biodiversity more broadly, rather than for the applicants themselves: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; 154 FCR 425 at [18]. It would be incongruous with that purpose to, in effect, punish the beneficiaries of the injunction – here, primarily the WSF and thereby Australian biodiversity – because of the conduct of the party bringing the application. That is analogous to reasoning courts have applied in finding that the unclean hands principle should not be applied in equity where it would visit harm on a third party: Black Uhlans Incorporated v Crime Commission (NSW) [2002] NSWSC 1060; 12 BPR 22,241 at [183] (Campbell J).

20    I am not satisfied that the nature and extent of the protest activities identified in the evidence, even assuming that they can all be attributed to the applicant (which may be doubted), are a reasonable or sufficient basis on which to withhold relief that is otherwise appropriate. In reaching this conclusion, I am not expressing any view that amounts to condoning or condemning that activity, but rather do not regard it as disentitling in the present circumstances.

Delay in the respondents commencing work and the applicant bringing this application

21    The applicant contends that the respondents have voluntarily delayed commencing working on the development site by four months, and any further delay should be viewed in the light of that pre-existing delay. The respondents submit that they had intended to commence work, but were prevented from doing so by the interference with the site by protestors, including members of the applicant, which have resulted in several contractors withdrawing offers to perform work on the site. I am not satisfied that there has been any material delay by the respondents that should bear any consequence.

22    The respondents contend that the applicant delayed in bringing this action, commencing proceedings in July 2024, when the applicant had been aware of the statutory basis on which it could challenge the development works since February 2024, and the grant of the previous subdivision works certificate (and therefore that development works were imminent) since March 2024. The respondents contend that the explanation of internal governance issues causing that delay is asserted without supporting evidence.

23    I accept that the delay in an applicant in seeking interlocutory relief may be relevant to the question of whether it should be granted (South East Forest Rescue Incorporated v Forestry Corporations of New South Wales [2024] NSWCA 6 at [33] (Griffiths AJA); citing Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd [1988] FCA 205; (1987) 76 ALR 633 at 638), and that the applicant’s reason for the delay is poorly evidenced. In the circumstances of this case, however, delay has not been proven to have caused significant inconvenience. The respondents had not commenced development works, though they no doubt would have liked to. Especially in light of the discussion as to the purpose of the injunction as benefiting threatened species, not the applicant, I give this only slight weight in the exercise of discretion. Delay by the applicant has not been a determinative consideration in this case.

Consequences for the respondents in granting the applicant’s wider interim injunction

Costs for the respondents

24    The respondents submit that a further delay to completing the limited works they propose would visit significant financial hardship upon them. In affidavit evidence, the development manager for Clarence Property, Mr James Fletcher, estimates that expenses of $131,648 are associated with maintaining and securing the site each week. The vast majority of this is security expenses, which Mr Fletcher says are necessary to protect the site and workers from interference by various protestors. The applicant does not challenge that evidence. It has proffered the usual undertaking as to damages, although the respondents submit (and the applicant does not challenge) that its finances make it much less than certain that it would be able to meet any substantial call on that undertaking.

25    On Mr Fletcher’s own evidence, however, the costs he deposes to would be incurred regardless of whether this interim injunction was ordered. He states in his affidavit affirmed 22 July 2024 at [47]:

Notwithstanding any interim injunction that prevents Bayside from carrying out the Development Works, Bayside will need to maintain the current level of security on the Land due to the continuing presence of protestors. Security is required to protect the safety of contractors that will install the Hollows and Nest Boxes (which is permitted under Order 3 of the Orders made by Justice Raper on 4 July 2024). Security will also be required to protect the safety of contractors undertaking regular maintenance and to maintain the integrity of the fence line which has previously been subjected to widespread and regular vandalism. Parts of the Land within the Development Zone require regular maintenance including mowing of exotic grasses and weed control for the purpose of bushfire hazard and weed control, which will become particularly important after winter when growth will increase significantly.

26    Whether the interim injunction in the terms sought by the applicant will cause any additional costs to be incurred by the respondents is therefore a question of how much longer it will force the respondents to bear these costs than would otherwise have been the case. This requires consideration of the evidence that the interim injunction would cause delays for the respondents.

Delays to development works

27    Some of the steps required by the development consent, including receiving approval for a Revised Wallum Froglet Management Plan (Froglet MP) and Revised Vegetation Management Plan (Vegetation MP), have already been completed. Accordingly, on 1 March 2024, Byron Shire Council issued a subdivision works certificate for the early stage 1.

28    In order to proceed to early stage 2 under the development consent (earthworks), all of the stage 1 works that the respondents seek to have excluded from the scope of the interim injunction must be completed. Under the terms they propose, the respondents would still not be able to commence works in the next development stage until the permanent injunction application has been determined. They could, however, receive the subdivision works certificate in preparation for that work, consequent upon completing stage 1, while awaiting determination of the permanent injunction application.

29    The respondents also rely upon unchallenged evidence that the delays would affect contracts of sale for 19 of the development’s lots, which were signed in mid-2023 and are required to be completed within 30 months of signing; that is, by late 2025 or early 2026. They submit that further delays would mean the Sunset Date for those contracts would be reached, in turn prejudicing the interests of the purchasers, who are not parties to this proceeding.

30    The applicant submits that the effect of the interim injunction they propose would only be to delay work by 2-3 days, which is the expected timeframe to install the ponds that the respondents’ solicitors had previously provided to the applicant. The applicant submits that the sediment control fence and exclusion bunting installation could proceed at the same time as the pond installation, and the ripping of sandy tracks and application of weedicide could occur after the application for the early stage 2 subdivision works certificate. The terms of the applicant’s proposed wider interim injunction would allow for the installation of the hollow and nest boxes.

31    The respondents have not made submissions or furnished evidence as to how long the issue of a subdivision works certificate is likely to take from the completion of the stage 1 works. There is no evidence as to whether it would issue soon after being sought, or follow a lengthy and iterative process, or something in between. A lengthy process would weigh more strongly in favour for the grant of the exception to the injunction that the respondents seek, as this would allow them to complete the stage 1 work and then await the issue of the subdivision works certificate at the same time as they waited for the determination of the permanent injunction application. If it were instead a speedy process, it is likely that the delay caused by the interim injunction would be slight, as these works could commence shortly after delivery of the determination of the permanent injunction application. Of course, the issue of the subdivision works certificate could be some period in between swift and lengthy.

32    In the absence of evidence which the respondents are in the best position to adduce, I am unable to infer, or more accurately, to assume, that the delay in issuing the subdivision works certificate would be substantial. There is no evidentiary basis for concluding that the delay would of itself be of sufficient moment to be a factor favouring to any marked extent the respondents’ argument for a narrower injunction.

Consequences of not granting the wider interim injunction

The kind of environmental harm that this Court can consider

33    The thrust of the applicant’s case is that the grant of only the narrower interim injunction, allowing the additional development works sought by the respondents, is likely to have an adverse effect on the Snail, the Potoroo and the WSF.

34    There is a dispute between the parties as to the kind of environmental harm that this Court can consider in assessing whether to grant the interim injunction. Section 475(2) of the EPBC Act allows for the grant of permanent injunctions if the Court is satisfied that a person is or is proposing to engage in conduct that would be an offence under that Act. The applicant seeks a permanent injunction on the basis that the respondents’ proposed development works would be likely to have a significant effect on specified listed threatened species, which would be offences under ss 18(2), (3) and (4) of the EPBC Act. The preliminary injunction is sought under s 475(5), however, which provides:

Before deciding an application for an injunction under this section the Court may grant an interim injunction:

(a)    restraining a person from engaging in conduct; or

(b)    requiring a person to do an act.

35    The respondents contend that s 475(5) does not allow the Court to grant interim injunctions on the basis of general environmental harms. Rather, they submit, the inquiry must be tied to the basis on which the permanent injunction is sought to be granted. That submission must be accepted as far as it goes, but I consider that the standard to be met is not the same as required for a permanent injunction, if that was what the respondents intended to convey. Like the grant of interim injunctions in other contexts, the Court’s attention is directed to the likely effect of not granting an injunction on the value or utility of the final relief that is sought. In this case, the proper question is whether there is sufficient risk of irreparable harm to the threatened species the applicant seeks to protect by the permanent injunction application to render less valuable that relief if ultimately granted, and whether that risk is outweighed by the detriment to the respondents in granting the narrower interim injunction (that is, with the wider range of exceptions that they seek): see generally, Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1 at [15] (Preston J).

Building of the Wallum Froglet breeding ponds – respondents’ proposed order 3(c) and thereby (d)

36    Under the Froglet MP, Bayside Brunswick is required to build artificial breeding ponds designed for the Wallum Froglet. The Froglet MP was initially drafted with only the Wallum Froglet in mind, but was partially revised after the WSF was detected, by the respondents, on the development site. Building of the Wallum Froglet breeding ponds requires sedge and active soil to be mined from “donor sites” in the development site, and brought to new locations to be placed at the bottom of the artificial ponds. Relying on expert reports by Associate Professor Wardell-Johnson, the applicant submits that this poses a real and substantial risk of irreparable harm to the site’s WSF population because:

(a)    mining the sedge to create the ponds will:

(i)    leave open spaces that are likely to attract predators and pests, and cause an influx of generalist species (such as the ESF) and invasive species (such as case toads and mosquito fish). These open spaces are unlikely to recover quickly due to the already degraded nature of the habitat; and

(ii)    diminish the existing environment for the WSF;

(b)    if the applicant succeeds only in obtaining a permanent injunction, and the development is effectively prevented from taking place at all, maintenance of the ponds is unlikely to continue, which could lead to:

(i)    the ponds attracting predators and pests, such as rats, domestic cats and dogs, mosquito fish and toads;

(ii)    the ponds becoming breeding areas for mosquito spawn, which may result in calls by local residents to require pesticide spraying that will increase the water’s pH levels and interfere with the acidic environment required by the WSF; and

(iii)    as a result of these ecological disturbances, more resilient invasive or generalist frog species to replace the WSF.

37    Associate Professor Wardell-Johnson notes as well that the attraction of predators and pests by the unmaintained ponds and bare parts of the sedge heath would also be likely to adversely affect the Snail and the Potoroo.

38    It should be noted that, while the damage said by the applicant to be caused by sedge mining could arise regardless of whether the applicant succeeds in obtaining a permanent injunction. However, the harm caused by the construction of the ponds could only arise if the permanent injunction is granted, because this harm would only result from the development works and therefore the ponds being abandoned.

39    The respondents seek to meet the applicant’s concerns about mining the sedge on two bases.

40    First, the respondents contend that the applicant and Associate Professor Wardell-Johnson wrongly assume that mined sedge would be removed from the development site, even though the Froglet MP specified it would be placed in the frog ponds, or, if there was excess sedge to what was required by the ponds, elsewhere nearby the places from which they were taken. While some of the applicant’s arguments at the interim injunction hearing suggested it did labour under this misapprehension, that was not evident in the questions posed to Associate Professor Wardell-Johnson in order to obtain his opinion. I was unable to identify this error in Associate Professor Wardell-Johnson’s reports either. On my reading, his reports focus on the areas that will become bare due to the sedge and topsoil mining, and the decrease in the overall sedge heath. While some of that mined sedge may be placed nearby to existing sedge, mitigating the decrease in sedge coverage, it is not in contest that the sedge mining will result in diminution to the sedge heath. There remains a dispute as to whether this would result in an overall loss of WSF habitat, or whether that loss is made up by the construction of the Froglet breeding ponds.

41    Second, the stronger argument advanced by the respondents, based on the opinion of Mr Robertson, is that mining of the sedge heath is likely only to have a negligible effect on the WSF, as the heath is already subject to slashing and is nearby existing sandy tracks that attract predators, and therefore is already a disturbed habitat for the WSF. His evidence is that sedge mining is therefore likely to have a negligible effect on the WSF population on the development site. Mr Robertson notes that the WSF has not been detected close to the donor sites, and these areas are poorer quality habitat than areas where the WSF has been detected.

42    The applicant offers two responses. First, Associate Professor Wardell-Johnson considers the sedge heath to be in good condition despite the slashing, retaining key habitat features for the WSF. Second, even if the donor sites are not currently prime habitat for the WSF, they could be regenerated if slashing ceases, which is part of the remedy the applicant seeks in its permanent injunction application. The applicant contends that if it is successful in obtaining the permanent injunction it seeks, but not in obtaining the wider interim injunction it also seeks with the pond work not being permitted to take place, the sedge heath’s rejuvenation as a habitat for the WSF would be undermined by the existence of bare areas throughout, which would attract predators and pests.

43    On balance, I consider the separate risks associated with the mining of the sedge for the purpose of the construction of the ponds weighs on the balance of convenience in the applicant’s favour in not allowing that to take place, but not to a marked extent.

44    The respondents also object to the applicant’s contention that the ponds will be abandoned and become stagnant if the permanent injunction is granted, on three bases.

45    First, the respondents submit that the applicant’s assumption that the ponds will be abandoned if they are unsuccessful in obtaining a permanent injunction is speculative. That is obviously the case, but misses the point that the balance of convenience necessarily requires the Court to speculate on future counterfactuals including, most importantly, if the applicant does or does not succeed in obtaining the final relief sought, here a permanent injunction on the development works. The respondents further submit that in the event that they are not successful in resisting the permanent injunction application, they are likely to seek Commonwealth Ministerial approval for the development works. That well may be, but it is similarly uncertain and to that extent speculative that this alternative pathway to development approval would be successful.

46    Perhaps more importantly, the respondents did not convincingly explain how or why the ponds would be maintained if the rest of the broader development works cannot go ahead, nor address what would happen if no other approval was able to be obtained from the Commonwealth. They did not proffer an undertaking to remediate the ponds if the development works are abandoned. I am satisfied that I should consider, in weighing the balance of convenience, the risk of what may occur in the event that the development works are unable to proceed, including that the ponds may no longer be maintained or even be abandoned. Of course, the more contingent an outcome, and the more speculative the harm, the less it will weigh in assessing the balance of convenience. On this point, I am not satisfied that the risk that the applicant relies upon is reasonably possible, albeit with an inevitable degree of uncertainty. It is sufficient to be an important factor weighing on the applicant’s side of the balance of convenience.

47    Second, the respondents submit that the ponds would not become stagnant (and therefore would not attract mosquito larvae). They point to descriptions of the pond design in the Froglet MP:

… frog habitat design for breeding areas shallow excavation at depths which ensure groundwater interception and allow for windows of groundwater expression to provide breeding habitat for Wallum Froglets. While rainfall varies annually, it is important to recognise that habitat areas do not require permanent water to perform adequately but provide 30-100 days of surface water ponding for breeding to occur. Guided by groundwater fluctuations over wet and dry periods, the design will ensure that a combination of groundwater and surface water will achieve hydrological requirements where habitat is created or embellished.

The Froglet MP also notes that several of the artificial ponds are to be built at depths of up to 40 cm to suit the WSF.

48    This is one area where the competing assertions of the experts are particularly difficult to reconcile, especially in the relatively short time frame within which this interim injunction application must be decided. As Associate Professor Wardell-Johnson was provided with the Froglet MP as part of his expert brief, which specifies the pond design, I am unwilling to infer or otherwise conclude that he has fundamentally misunderstood how the ponds are designed to operate. Rather, it appears he has taken a different view on how they are likely to operate when not maintained than has Mr Robertson. I therefore do not consider the respondents’ submission sufficiently meets the risk Associate Professor Wardell-Johnson identifies. That finding is fortified by the fact that Associate Professor Wardell-Johnson argues that there is a risk of mosquito larvae growing in pools that are “not associated to sources of flow”, which appears true of the pond design, even if they are designed to express water intermittently. It follows that this too weighs on the balance of convenience in the applicant’s favour.

49    Third, the respondents rely on Mr Robertson’s opinion that, even if the ponds are abandoned, the high ecological resilience of the area would be likely to ensure natural regeneration will take place. The proper weight to be given to this opinion is difficult to ascertain, in particular because Mr Robertson does not make clear how general ecological resilience might overcome pond stagnation, let alone do so within a time frame that does not risk causing irreparable damage. I note too that this appears in tension with Mr Robertson’s assessment that the ponds are to be built in already degraded areas. Although it is the respondents’ contention that rejuvenation in these areas is likely to be supported by the construction of the ponds, it is not clear to what extent that rejuvenation will progress if the Froglet MP’s 5-year maintenance plan is not seen out. Although less clear-cut, this does, to a more limited extent, weigh on the balance of convenience in the applicant’s favour.

50    The respondents also make a more general argument that it is unlikely that any of the populations of the WSF, the Potoroo or the Snail on the development site are important, and therefore it is unlikely that the construction of the ponds will have a significant effect on their overall populations. This relies on Mr Robertson’s challenges to the veracity of the some of the detections of the WSF, and all of the detections of the Potoroo and the Snail, as well as his opinion that the WSF population on site is far too small to constitute an important population of the species. I do not consider that this renders the evidence of detections to be worthless, but rather as evidence to be approached with caution and given correspondingly qualified weight. It remains some evidence, of a kind that is commonly untested in an interim injunction application, in favour of the greater restriction the applicant seeks.

51    The burden for the applicant at this stage is not to show that there is likely to be a significant effect on threatened species if the interim injunction is not granted. That is a matter for final relief sought by way a permanent injunction. It is only necessary for the applicant to show that there is a sufficient risk that there would be irrecoverable harm to the benefits flowing from the granting of the permanent injunction. It is not in dispute that the WSF is on site, though Associate Professor Wardell-Johnson and Mr Robertson are at loggerheads on the final trial question of whether it is an important population.

52    I am satisfied that the applicant has established that there is a real chance that the WSF population in the general area of the development site will be proven to be important, relying on Associate Professor Wardell-Johnson’s opinion and arguments in support of this view. He points to the fact that it is one of the largest remaining contiguous populations of WSF in northern NSW, and that nearby fires have damaged surrounding wallum wetlands, augmenting the importance of the site’s population. I should note that I have been able to determine this ground based on the prospective effect on the WSF alone, and therefore find it unnecessary to consider the arguments relating to the prevalence of the Potoroo or the Snail on the site.

53    Accordingly, I am persuaded that there is a sufficient risk that, if the applicant’s interim injunction is not granted to the extent of preventing the ponds from being built pending the determination of the permanent injunction application, but the permanent injunction is ultimately granted, the development works may not be able to proceed. I am further persuaded that the risk that the ponds are unlikely to be maintained in accordance with the Froglet MP has not been adequately addressed by the respondents. The effect of the sedge mining is smaller, given the already degraded character of the sedge heath. However, I find that the respondents have advanced nothing more substantive than possible answers or solutions to the identified risks, rather than casting any real doubt on the existence of those risks.

54    It is for the substantive trial to consider whether the likelihood and scale of these risks rises to the level required for the order of a permanent injunction. At this stage, when weighing the potential risks to the WSF against the minimal delay to the respondents, I am satisfied that the balance of convenience favours a restraint on the respondents building the ponds until the determination of the permanent injunction application, subject to the docket judge hearing that application and forming a different view.

Exclusion bunting for conservation zones – respondents’ proposed order 3(a)

55    Installation of exclusion bunting, by driving pickets at 10 metre intervals on the edges of two management zones on the site and erecting signage, is another condition for the issue of the subdivision works certificate. The respondents state that all vehicles used in installation will be required to stay on existing tracks, which are marked on maps in the Froglet MP, though this is not specified in the orders they propose. The applicant complains that the respondents do not identify what tracks would be used for installation, and oppose the use of heavy vehicles for this work, relying on Associate Professor Wardell-Johnson’s statement that:

Provided that this fencing, exclusion bunting, and signage are only associated with light vehicles on existing tracks, I see no issue with these works. Any additional tracks or use of 4-wheel drives or larger machinery should not, however be engaged.

56    Associate Professor Wardell-Johnson does not expressly explain why larger vehicles should not be used. While it might be assumed that a larger vehicle is more likely to have an impact than a smaller vehicle, I have found it difficult to assess the risk they might pose, especially if they only drive on existing tracks. Any dispute as to whether vehicles will actually stick to existing tracks seems best addressed by simply requiring that they do, which should be no issue for the respondents given their submission that this will occur anyway. With that risk addressed, the applicant has been unable to identify any other real risk associated with the exclusion bunting works, and although there is a negligible benefit to the respondents in allowing this work to proceed, the balance of convenience weighs in favour of not restraining the respondents in carrying out this work. It follows that the works described in paragraph 3(a) of the respondents’ proposed orders should be permitted.

Erosion and sediment control measures – respondents’ proposed order 3(b)

57    Installation of a fabric-control fence parallel to the site’s central waterway is another requirement for the issue of the subdivision works certificate. Relying again on Associate Professor Wardell-Johnson’s report, the applicant contends that this is an already degraded area that should not be trafficked and instead should be allowed to rehabilitate. He states that there is “a chance that further work in these areas will lead to significant impact, possibly serious and irreversible environmental damage and should not proceed.” The respondents rely on Mr Robertson’s different view that:

The installation of sediment controls has not been indicated to occur within any areas mapped as [Wallum Froglet]/WSF habitat. The general footprint and nature of these proposed works is also limited. At most, the [Erosion and Sediment Control] measures would provide a minor and temporary partial barrier to local movement of the species. As such, it is very unlikely that these works will have any material impact on a local [Wallum Froglet]/WSF population.

58    I note that Mr Robertson’s view is not that a material impact is impossible, but that it is “very unlikely”. The experts are in apparent agreement that there is only a small chance that this work will have a material or significant impact on the WSF population, though perhaps Mr Robertson would consider the consequences of any risk eventuating to be smaller. Essentially, I am to weigh a low risk of significant harm if these works proceed, against no real detriment for the respondents if they do not, as stage 2 development works cannot proceed until the ponds are built in any event. The balance of convenience therefore very finely tips in favour of the grant of the interim injunction so as not to allow the works described in the respondents’ proposed order 3(b).

Ripping of sandy tracks – respondents’ proposed order 3(e)

59    Shallow ripping on compacted sandy tracks throughout the development site, which involves mechanically tearing through soil to a shallow depth in order to stimulate germination, is another condition of the issue of the subdivision works certificate. The respondents submit that this is intended to support ecological rejuvenation in these areas. The applicant opposes ripping on the basis that the respondents have not made clear where they will conduct this (expressing some concern that it will be conducted on Crown lands), that areas it proposes to rip are close to places where the Snail has been detected, and that some of these tracks may now be subject to rejuvenation. The first argument is misplaced in light of the detailed maps of where ripping is proposed to take place shown in the Froglet MP, as well as the specification in the respondents’ proposed order that this will exclude any portion of those tracks that are not located within the development site. The second and third arguments are not supported by evidence, and otherwise contrary to the view of Associate Professor Wardell-Johnson that such measures are “an appropriate rehabilitation approach to degraded tracks at this site” and that the WSF population on site could be supported by such restoration work. Mr Robertson expresses a similar view.

60    Though there is no apparent benefit to the respondents in performing this work prior to trial, given they will be unable to proceed to stage 2 of the development works until the ponds are constructed as well, the applicant has not identified any sufficient risk involved. Indeed, the benefit to the WSF weighs in favour of this work taking place. It follows that the works described in paragraph 3(e) of the respondents’ proposed orders should be permitted.

Hollows and nest boxes – respondents’ proposed order 3(f)

61    The parties are in agreement that the respondents should be permitted to install hollows and nest boxes, which are designed to compensate for any hollows that will be removed and which are nesting places for the South-Eastern Glossy Black Cockatoo. Both provide the caveat that no vehicle (which does not include the use of a trolley by a person on foot) is used to access the trees where the boxes are to be installed.

Weeding – respondents’ proposed order 3(g) and applicant’s proposed order 3(b)

62    Weeding of the site is required under the Vegetation MP, which also provides the methods by which this should take place. A checklist for the weeding program in Appendix F to the Vegetation MP specifies, among other things:

All workers will be aware of any threatened fauna that are known or likely to occur on site, and the potential impacts of the proposed activities on those species.

Weeds will be removed gradually in areas where an infestation is extensive. Ideally, 50% of weeds that may provide habitat should be left until native plant species have re-established and provide alternative refuge.

Herbicide spraying will be restricted to a distance greater than 5 metres from watercourses where threatened frogs are known or likely to occur and within a 10m radius of records of threatened frogs.

A herbicide registered for use near waterways will be used within 5m of waterways.

A buffer of 1m along other watercourses will be maintained in which no herbicide will be sprayed.

63    The applicant supports weeding, but only by hand and without the use of weedicides. Both parties make reference to the opinion of Associate Professor Wardell-Johnson that weeding should take place “as standard rehabilitation activities at the site.” However, he goes on to specify that weedicides should not be used due to the sensitivity of the WSF to their use, and the risk it will affect groundwater due to the site’s high water table. He does not specify that weeding should therefore take place by hand. Mr Robertson, by contrast, assesses that the effect will be “minimally invasive” given the specifications provided in the Vegetation MP and because of the low level of weed infestation on the site.

64    I am satisfied that the applicant has established a sufficient risk of the use of weedicides, in particular due to the sensitivity of the WSF to weedicides, and the risk of weedicides leaking into the groundwater, further impacting the WSF’s habitat. I do not consider, however, that a risk has been established if this occurs through methods other than hand pulling. Associate Professor Wardell-Johnson’s report does not mention any adverse effect caused by mechanical removal, for example. It follows that the applicant’s proposed order 3(b) should be made, though without the requirement that weeding only take place by pulling, but leaving in place the prohibition on weedicides sought by the applicant.

Conclusion

65    The orders I have in mind to make, reflecting the conclusions reached above, are as follows:

1.    In these orders, “Development Works” means works conducted on the land at 15 Torakina Road Brunswick Heads pursuant to the Notice of Determination of Development Application 10.2021.575.1, including but not limited to Early Stage 1 Ecological Rehabilitation Works in accordance with Subdivision Works Certificate No. 14.2021.575.1 granted by Byron Shire Council on 1 March 2024.

2.    Until the hearing and determination of the proceeding, the first and second respondents must not, whether by themselves, their servants, agents, contractors or howsoever otherwise carry out or authorise the carrying out of Development Works, other than those works set out in Order 3.

3.    The respondents may:

(a)    install exclusion bunting to the conservation zones shown on Drawing EW_01 in Appendix B to the Revised Wallum Froglet Management Plan by Australian Wetlands Consulting Pty Ltd (AWC) dated 15 February 2024 (Froglet MP), provided that no vehicle is used other than on existing tracks identified in Drawing EW 01;

(e)    carry out ‘shallow ripping’ (multi-tine ripper to 300 mm depth) to stimulate germination of compacted sand on degraded tracks shown in pink hatching on Drawing EW_06 in Appendix B to the Froglet MP (to be supervised by a qualified ecologist), excluding any portion of those tracks that are not located within Lot 13 DP1251383;

(f)    install hollow or nest boxes in accordance with the Hollow and Nest Box Management Plan dated February 2024, provided that no vehicle (which does not include the use of a trolley by a person on foot) is used to access the trees where the boxes are to be installed; and

(g)    conduct weed maintenance in accordance with the Revised Vegetation Management Plan by AWC dated 26 February 2024, though only without the use of weedicide.

4.    Liberty to apply.

5.    Costs reserved.

6.    Any of these orders may be varied or vacated, or others made, if the docket judge considers it appropriate.

66    Given that there is some departure from the wording proposed by both parties, there may be some relatively minor, but nonetheless important, variation that is needed before orders to that effect are formally made and entered. The parties will therefore be directed to confer and provide an agreed or competing final version within 7 days. In the meantime, the existing interim injunction will remain in force.

Associate:

Dated:    23 August 2024