The slashers and bulldozers are preparing to move onto the Wallum site at Brunswick Heads.
But after two major Federal Court judgments, what is developer Clarence Property actually entitled to do?
The answer is both more and less than the arrival of heavy machinery might suggest.
On September 7, Federal Court Justice Melissa Perry dismissed Save Wallum’s bid for a permanent injunction preventing the development from proceeding under federal environmental law.
Then, on September 16, Justice Angus Kennett refused to continue the broader interim restraint while Save Wallum prepares a possible appeal.
Together, the decisions mean the federal injunction stopping works has effectively fallen away.
But Clarence Property cannot simply clear the entire 30-hectare site and begin building the subdivision.
The works currently authorised are limited to ‘Early Stage 1’ environmental works, with the major outstanding component involving the construction of artificial Wallum Froglet ponds.
Those works include excavating depressions, moving soil and sedge, building pond banks and providing machinery access.
The ponds must then be monitored for three months before later development stages can proceed through their separate approval and certification processes.
Clarence has also given the Federal Court undertakings limiting what can happen while an appeal remains on foot.
If Save Wallum files an appeal by October 5, slashing will be restricted to the approximately 12 hectares intended for development, rather than the entire site.
The company has also undertaken to maintain and monitor the artificial ponds and, if Save Wallum ultimately succeeds on appeal and federal approval is required, restore the affected areas under ecological supervision.
So why did Save Wallum lose the substantive Federal Court case?
The central question before Justice Perry was not whether Wallum had environmental value, or whether threatened species were present.
It was whether Save Wallum had proved, on the balance of probabilities, that the proposed works were likely to have a ‘significant impact’ on species protected under the federal Environment Protection and Biodiversity Conservation Act.
Justice Perry found that it had not.
Importantly, the burden remained on Save Wallum to establish a real, rather than remote, chance of significant impact.
The Court did not accept that uncertainty alone meant the project should be stopped under the precautionary principle.
It also found that some of the ecological case relied on chains of uncertain possibilities about habitat use and future impacts which did not, taken together, establish the required level of likely significant harm.
The Court assessed the development as actually approved, including its management plans, staged works and environmental safeguards, rather than treating the proposal as unrestricted clearing.
It also distinguished between environmental impact generally and the higher legal threshold of a ‘significant impact’ on a federally protected species.
Save Wallum is now preparing an appeal, while separate NSW Land and Environment Court proceedings are commencing today concerning Wallum Froglet habitat.
For now, Clarence Property can begin the authorised early environmental works.
But the bulldozers do not yet have a legal green light to clear Wallum from boundary to boundary.
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