Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156

Land and Environment Court New South Wales

Medium Neutral Citation: Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 Hearing dates: 20-23 October 2020 Date of orders: 20 November 2020 Decision date: 20 November 2020 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court: (1) Declares that Northern Beaches Council has breached s 5.5(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) in considering and determining to approve on 17 December 2019 the activity of allowing dogs on-leash at Station Beach, Palm Beach by not examining and taking into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity; (2) Declares that Northern Beaches Council has breached s 5.7(1) of the EPA Act in granting approval on 27 August 2019 to the activity of conducting the dog off-leash area trial at Station Beach, Palm Beach for a period of 12 months, without having obtained or been furnished with, and having examined and considered, an environmental impact statement in respect of that activity; (3) Declares that Northern Beaches Council has breached s 5.7(1) of the EPA Act by: (a) not determining whether the activity of allowing dogs on-leash at Station Beach, Palm Beach, is likely to significantly affect the environment; (b) granting approval on 17 December 2019 to the activity of allowing dogs on-leash at Station Beach, Palm Beach, without having obtained or been furnished with, and having examined and considered, an environmental impact statement in respect of that activity; (4) Declares invalid, and quashes, the decision of Northern Beaches Council made on 27 August 2019 to conduct a dog off-leash area trial at Station Beach, Palm Beach for 12 months; (5) Declares invalid, and quashes, the decision of Northern Beaches Council made on 17 December 2019 to allow dogs on-leash at Station Beach, Palm Beach; (6) Directs the parties to file and serve submissions on the orders that the parties contend the Court should make by way of prohibitory or mandatory injunctions (if any) in accordance with the following timetable: (a) The applicant to file and serve its submissions by 27 November 2020; (b) The respondent to file and serve its submissions by 4 December 2020; (c) The applicant to file and serve its submissions in reply by 11 December 2020; (7) Grants leave to each party to relist the matter in order to fix a date for a hearing if a party wishes to have a hearing on the issue of the injunctive orders the Court should make. (8) Orders the respondent to pay the applicant's costs of the proceedings. Catchwords: JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 4 of Environmental Planning and Assessment Act 1979 (EPA Act) – whether decisions authorise use of land – purpose of use of land – whether for recreation area – whether development consent required – whether development for purposes of recreation area on a public reserve under the control of or vested in the council – whether continuance of a use of land for a lawful purpose – whether enlargement, expansion or intensification of use – whether use abandoned – whether use unlawfully commenced – development consent not required for use – no breach of Part 4 of EPA Act JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 5 of EPA Act – whether council decisions approve an activity – duty to examine and take into account environmental impact of activity – whether council breached duty in approving dog on-leash activity – duty to obtain, examine and consider EIS for activity likely to significantly affect environment – whether council breached duty in approving dog off-leash activity and dog on-leash activity – whether each activity likely to significantly affect the environment – breaches of Part 5 of EPA Act Legislation Cited: Companion Animals Act 1988 ss 13(6), 14(1) Crown Land Management Act 2016 Crown Lands Act 1989 Environmental Planning and Assessment Act 1979 ss 1.5(1)(a), 4.2, 4.3, 5.1, 5.5, 5.7 Fisheries Management Act 1994 ss 221ZV, 221ZX Local Government Act 1919 s 344 Local Government Act 1993 s 48, 632 Local Government (Town and Country Planning) Amendment Act 1945 Pittwater Local Environmental Plan 1994 Pittwater Local Environmental Plan 2014 State Environmental Planning Policy (Infrastructure) 2007 Warringah Local Environmental Plan 1985 Cases Cited: Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 Burwood Council v Iglesias Ni Cristo (No 2) (2019) 242 LGERA 32; [2019] NSWLEC 159 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155 F Hannan Pty Ltd v Electricity Commission of NSW (1983) 51 LGRA 369 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38 Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 Hanly v Kleidienst 471 F2D 823 at 830 (2d CIR, 1972) Herring Daw & Blake NSW Pty Ltd v Gosford City Council (1995) 87 LGERA 220 Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 King v Lewis (1995) 88 LGERA 183 Kivi v Forestry Commission of NSW (1992) 47 LGERA 38 Liverpool City Council v Roads and Traffic Authority & Interlink Roads Pty Ltd (1991) 74 LGRA 265 National Parks Association of NSW v Minister for the Environment (1992) 130 LGERA 443 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 Oshlack v Richmond River Council and Irongates Development Pty Ltd (1993) 82 LGRA 222 Oshlack v Rous Water (2013) 194 LGERA 39; [2013] NSWCA 169 Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231 Parramatta City Council v Hale (1982) 47 LGRA 319 Prineas v Forestry Commission of NSW (1983) 49 LGERA 402 Prineas v Forestry Commission of NSW (1984) 53 LGERA 160 Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 Rundle v Tweed Shire Council (1989) 68 LGRA 308 Snowy Mountains Brumby Sustainability and Management Group Inc v The State of NSW [2020] NSWLEC 92 South Sydney City Council v Hulakis & Teakdale Pty Ltd (1996) 92 LGERA 401 Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186 Timbarra Protection Inc v Ross Mining NL (1999) 46 NSWLR 55 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598; [1999] NSWCA 196 Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366 Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614; [1979] HCA 66 Warren v Electricity Commission of NSW (1990) 130 LGERA 565 Weal v Bathurst City Council (2000) 111 LGERA 181 Willoughby City Council v Minister administering the National Parks and Wildlife Act (1992) 78 LGERA 19 Category: Principal judgment Parties: Palm Beach Protection Group Incorporated (Applicant) Northern Beaches Council (First Respondent) Department of Planning, Industry and Environment (Second Respondent) Representation: Counsel: Mr N Williams SC, with Mr C Ireland (Applicant) Mr A Galasso SC, with Mr M Staunton (First Respondent)