Narrawallee Beach Environmental Group Inc v Shoalhaven City Council [2023] NSWLEC 78

Land and Environment Court New South Wales

Medium Neutral Citation: Narrawallee Beach Environmental Group Inc v Shoalhaven City Council [2023] NSWLEC 78 Hearing dates: 22, 23, 24 May 2023 Date of orders: 21 July 2023 Decision date: 21 July 2023 Jurisdiction: Class 4 Before: Pain J Decision: The Court declares and orders as follows: (1) the resolution of the Respondent on 2 November 2021 to alter the boundaries of the off-leash dog area at Narrawallee Beach and continue it (that is, the off-leash area), and to allow on-leash dog access from the beach entry points shown on BA1 to BA2 (that is, use of the area of the beach from BA1 to BA2 as a transit area for dogs to access the off-leash area) and BA2 to BA7 on the map annexed to that resolution purports to authorise an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979 (NSW), but is of no force and effect as there has been no compliance with s 5.5 of the Environmental Planning and Assessment Act 1979 (NSW). (2) costs are reserved. Catchwords: CIVIL ENFORCEMENT – application of Part 4 of Environmental Planning and Assessment Act 1979 (NSW) – whether existing use of allowing dogs off-leash on public beach intensified such that development consent required CIVIL ENFORCEMENT – application of Part 5 of Environmental Planning and Assessment Act 1979 (NSW) to resolution to vary arrangements allowing dogs off-leash on public beach permitting an activity – no review of environmental factors prepared as required when resolution made by council – review of environment factors subsequently prepared - whether relief should be granted Legislation Cited: Biodiversity Conservation Act 2016 (NSW), s 7.3 Coastal Management Act 2016 (NSW) Companion Animals Act 1998 (NSW), ss 3A, 4, 5, 6, 6A, 6B, 7, Pt 2, Pt 3 ss 13, 14, 16, 20 Crown Land Management Act 2016 Dog Act 1966 (NSW), s 9 Environmental Planning and Assessment Act 1979 (NSW), s 1.5, Pt 4, ss 4.2, Div 4.11 ss 4.65, 4.66, 4.68, Pt 5, ss 5.1, 5.2, 5.6, 5.7, Pt 9, ss 9.45, 9.46 Environmental Planning and Assessment Regulation 2000 (NSW), cl 228 Environmental Planning and Assessment Regulation 2021 (NSW), cl 171 Environment Protection and Biodiversity Conservation Act 1999 (NSW) Land and Environment Court Act 1979 (NSW), s 20 Local Government Act 1919 (NSW), s 367 Shoalhaven Local Environmental Plan 1985 Shoalhaven Local Environmental Plan 2014 (NSW) Uniform Civil Procedures Rules 2005 (NSW), r 59.10 Cases Cited: Burwood Council v Iglesia Ni Cristo (No 2) [2019] NSWLEC 159 Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 South Sydney City Council v Houlakis (1996) 92 LGERA 401 Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21 Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Texts Cited: GS Maguire 'A Review of Dog Impacts to Beach-nesting Birds and Management Solutions' (2018, Birdlife Australia) Category: Principal judgment Parties: Narrawallee Beach Environment Group Inc (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: C. Ireland (Applicant) N. Hammond (Respondent)