FEDERAL COURT OF AUSTRALIA

Save Wallum Incorporation v Clarence Property Corporation Ltd (No 5) [2026] FCA 1315

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website together with this summary.

On 16 May 2023, the Northern Regional Planning Panel granted approval – subject to numerous conditions – for the first and second respondent to develop, in seven stages, 123 residential lots, three medium density lots and one public reserve, together with associated vegetation management works, earthworks and construction of infrastructure (the Development). The Development is to take place on land at 15 Torakina Road, Brunswick Heads, NSW (Land).

The applicant, Save Wallum Incorporated, is an association whose aim is to conserve and protect the natural environment of the Land. It seeks a permanent injunction under s 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to restrain the respondents from carrying out the Development. It seeks this relief on the basis that the respondents are proposing to take action (the Development) that is likely to have a significant impact on listed threatened species in contravention of ss 18(2)(b), 18(3)(b) and 18(4)(b) of the EPBC Act. The listed threatened species are the Wallum Sedge Frog (WSF), Mitchells Rainforest Snail (MRS), Long-nosed Potoroo, South-Eastern Glossy Black Cockatoo (SEGBC) and Koala.

The Court has refused the applicant’s application for final injunctive relief. This is because the applicant has failed to establish that the Development is likely, in the sense of a real and not remote possibility, to have a significant impact on any of the listed threatened species.

Key findings made by the Court include the following.

(1)    A detailed, complex and comprehensive suite of obligations is imposed with respect to the Development under the environmental and species management plans approved as part of the Consent. These plans create an adaptive and enforceable management regime, whereby key performance indicators and compliance requirements are not merely aspirational.

(2)    With respect to all threatened listed species, the applicant failed to establish that the measures mandated by the Consent to mitigate edge effects, such as trampling of habitat, dumping of rubbish and garden waste, access to habitat by domestic animals, humans, and pests, and stormwater run-off, would not be effective.

(3)    With respect to the WSF:

(a)    the WSF population in Tyagarah Nature Reserve is an important population, but not the WSF population on the Land (which is hydrologically linked to the Tyagarah population);

(b)    it is unlikely that there will be adverse changes from the Development to the WSF’s habitat;

(c)    the artificial ponds are fit for purpose and have very good prospects of success; and

(d)    there is provision for active management and monitoring of the ponds, both in the five years after occupation and thereafter.

(4)    With respect to the MRS:

(a)    the evidence did not establish that the MRS is present within the Development Footprint, but only in the conservation area MZ-1;

(b)    the MRS population in MZ-1 is an important population;

(c)    as the MRS is a critically endangered species, an adverse impact on an individual member of the species can be a significant impact; and

(d)    the buffers and other mitigation measures in place under the Consent, including the hydrological mitigators, are likely to be effective in mitigating risks to the MRS population from the Development.

(5)    With respect to the Long-nosed potoroo:

(a)    the Long-nosed potoroo is not present on the Land; and

(b)    even if the species were present, the Development is not likely to have a significant impact on the species as a whole.

(6)    With respect to the Koala:

(a)    the applicant’s challenges to the surveys with respect to the Koala which were relied on by the respondents’ experts, were without merit;

(b)    Koalas occur at times on the Land, but the Land (especially the Development Footprint) is an area of low activity for the species;

(c)    there is no evidence of a breeding koala population on the Land; and

(d)    the Development Footprint was not shown to contain habitat critical to the survival of the Koala.

(7)    With respect to the SEGBC:

(a)    no significant impact has been established by the tree removals in the Development Footprint as there are no current nesting or feed trees present;

(b)    the Development is unlikely to lead to a decrease in the size of an important population of the SEGBC because the local SEGBC population’s food supply and breeding habitat will not be affected;

(c)    nor will the Development reduce the area of occupancy of an important population of the SEGBC because foraging habitat and preferred feed trees will not be removed; and

(d)    given the scale of the site and the vast area of habitat for the SEGBC locally and for the species as a whole, it is unlikely that the Land is critical to the survival of the SEGBC locally or as a whole.

JUSTICE PERRY

7 SEPTEMBER 2026

SYDNEY